author: SUMMERS, Justice. TATE, Justice,

text:
    Joesph I. LESSARD v. LESSARD ACRES, INC. and First National Bank of Port Allen.
    No. 59173.
    Supreme Court of Louisiana.
    June 20, 1977.
    Rehearing Denied Sept. 2, 1977.

      Ralph Tureau, Law Offices of Ralph Tu-reau, Gonzales, for plaintiff-respondent.
    Mary Olive Pierson, Beychok, Cooper & Pierson, Baton Rouge, for defendant-applicant.
   SUMMERS, Justice.

This suit was instituted to enforce a re-verter clause in an act of sale of real estate in Ascension Parish, or, alternatively, to rank mortgages and vendor’s liens affecting the following property:

A certain tract of land situated in the parish of Ascension in the East Half of the Northeast Quarter of Section 22, Township 9 South, Range 3 East, Southeastern District of Louisiana, and being more particularly shown and designated as Lot Numbers Thirty (30) through One Hundred Thirty-Eight (138) on map of survey by Toxie Craft, C.E., dated July 8, 1968, revised September 4, 1969, attached hereto and made part hereof, LESS AND EXCEPT Lot Numbers 50, 63, 64, 69, 70, 95, 96, 101 and 102, all as is more fully shown by reference to said map.

On October 30, 1969, by instrument entitled “Sale With Assumption of Mortgage and Retention of Second Mortgage” plaintiff Joseph I. Lessard sold to Lessard Acres, Inc., 100 lots of ground in a plan of subdivision located in Ascension Parish. The instrument recited that it was a sale and conveyance made and accepted for the following consideration:

“(A) The price of $35,000.00 ...” represented by $1,000 cash, a vendor’s lien and mortgage note for $3,517.93, and the assumption by Lessard Acres, Inc., the buyer, of all obligations on three mortgage notes executed by seller Joseph I. Lessard totalling $30,482.07; referred to as 1) a mortgage note in the principal sum of $22,-000 dated September 27, 1967; 2) a mortgage note in the principal sum of $6,800, dated January 27, 1967, and 3) a mortgage note in the principal sum of $7,000, dated January 27, 1967.

“(B) Performance by Buyer of the following acts at no cost to Seller . . . .” Here eight stipulations require the buyer to 1) erect a chain link fence around an oxidation pond and water well; 2) after ten houses were completed, buyer was to drill water wells capable of furnishing water to 200 residences with distribution facilities to all lots; upon installation these facilities would vest in Lessard Acres, Water and Sewerage Works, Inc.; 3) blacktop streets; 4) furnish utilities to each lot; 5) pay all expenses for other improvements to the subdivision; 6) permit the water and sewerage system to be maintained by Lessard Acres Water and Sewerage Works, Inc., a company owned by seller; 7) erect houses on all lots as soon as sound business judgment dictates, and apply $500 of each sale price to reduction of the mortgage obligations assumed by buyer; and 8) provide in each sale of lots that a ten-foot servitude is to be reserved for water and sewer lines.

“(C) As an additional consideration . ” for the conveyance the seller granted the buyer a five-year option to purchase additional property nearby if the buyer would complete street and utility facilities on the optioned property within five years, title to which would vest in Lessard Acres Water and Sewer Works, Inc., when the option was exercised.

Following the foregoing stipulations, the act of sales recites:

“At the end of five (5) years from this date, if all one hundred (100) lots described on page one hereof are not sold, and all the mortgages mentioned herein on the property herein conveyed are not paid in full, then all lots remaining unsold by Buyer herein will revert in full ownership to Seller, ipso facto, and without any further act or action on the part of Seller or Buyer, herein, and without cost to Seller herein. If for any reason this re-verter paragraph is held null and void and unenforceable, then Buyer herein agrees to pay to Seller herein the sum of $500.00 per lot remaining unsold.”

The above-quoted paragraph is followed by a description of the $3,517.93 promissory note referred to under (A) as part consideration of the sale.

Thereafter on December 14,1970, Lessard Acres, Inc., executed a collateral mortgage in the sum of $40,000 in favor of the First National Bank of Port Allen affecting the lots acquired from Joseph I. Lessard in the deed of October 30, 1969.

When Lessard Acres, Inc., failed to pay the notes which it assumed, or to make the improvements required under the terms of the act of sale, or to sell any of the lots, Joseph I. Lessard discharged the balance due on the two mortgages of January 27, 1967, in the amounts of $6,800 and $7,000, respectively. After paying the mortgages, Joseph I. Lessard caused them to be can-celled on the public records.

This suit was filed by Joseph I. Lessard on February 10, 1975, making Lessard Acres, Inc., and the First National Bank of Port Allen defendants. He alleged that the five-year term allowed for compliance with the terms of the sale had expired and prayed for enforcement of the reverter clause and to be recognized as the owner of the lots free and clear of the mortgage in favor of the First National Bank of Port Allen. In the alternative he prayed that he be awarded $500 per unsold lot ($50,000) “as provided for and agreed” in the “Sale with Assumption of Mortgage and Retention of Second Mortgage.”

The bank answered, asserting the invalidity of the reverter clause, seeking recognition of its mortgage, and, in a third party demand, asserted its claim for $31,059.56 with interest, costs and attorney’s fees — the balance due on its collateral mortgage note against Lessard Acres, Inc., and its officers.

Lessard Acres failed to answer and a default judgment was confirmed against it on June 5, 1975 in favor of Joseph I. Les-sard. That judgment decreed that, insofar as Lessard Acres, Inc., was concerned, Joseph I. Lessard was the owner of the 100 lots described in the sale of October 30, 1969.

In an amended and supplemental petition filed on September 5, 1975 Joseph I. Les-sard amended his alternative demand to allege that his claim for $500 per lot ($50,-000) against Lessard Acres, Inc., should be ranked ahead of and in preference to the mortgage of the bank. In the further alternative he prayed for damages against Lessard Acres, Inc., in the sum of $100,000, the cost of installing the facilities required in the act of sale. He sought to have the award outrank the bank’s mortgage; and, in addition, he prayed that the mortgages assumed and not paid by Lessard Acres, Inc., which he discharged and cancelled, be adjudged to outrank the mortgage of the bank. The bank denied the validity of all claims asserted in the amended petition.

In this posture the case was tried. Except for establishing the costs of installing the facilities in the subdivision, the suit is primarily based upon the documents referred to, all of which are part of the public records of Ascension Parish.

The trial judge held that reverter clauses were not valid in Louisiana. He was of the opinion that the Civil Code does recognize the resolutory condition, but it cannot be invoked to defeat the rights of subsequent creditors. The question at the trial was primarily one of ranking the claims against the 100 lots described in the sale of October 30, 1969.

Finding that the uncancelled mortgage of $22,000 dated September 27, 1967 and the vendor’s lien and mortgage note of $3,517.93 dated October 30,1969 were clearly entitled to preference, the trial judge ranked them first and second, respectively. However, the trial judge refused to recognize or reinstate the two mortgages assumed by Lessard Acres, Inc., which were not paid, and which Joseph I. Lessard was compelled to pay as the original obligor, because they had been cancelled from the public records. The trial judge was aware of no principle of law which would permit those two mortgages to be reinstated on the public records so as to prime the bank’s mortgage.

The trial judge also held that the principal issue involved the effect to be given to this clause: “If for any reason this reverter paragraph is held null and void and unenforceable, then Buyer herein agrees to pay to Seller herein the sum of $500.00 per lot remaining unsold.” He then held that the sum of $50,000 for the 100 unsold lots was entitled to be classified and ranked as a vendor’s lien effective from the date of the sale on October 30, 1969, thus priming the bank’s mortgage subsequently recorded on December 14, 1970. Judgment was rendered accordingly. On appeal to the First Circuit the judgment was affirmed. La. App., 340 So.2d 351. Certiorari was granted February 18, 1977. La., 342 So.2d 673. We affirm.

The act of sale clearly contemplates that plaintiff would either be entitled to the return of the title to the unsold lots after five years or to receive the sum of $500 for each unsold lot. This condition was positioned with the other considerations for the sale in the act of October 30, 1969 and was spread upon the public records giving notice to all subsequent creditors.

Inasmuch as the reverter of title clause is invalid and cannot be invoked to defeat the rights of subsequent creditors, Joseph I. Lessard cannot avail himself of this stipulation. He is therefore left with his alternative claim to have the $50,000 due him for the 100 unsold lots recognized to be entitled to the vendor’s lien and privilege retained by him to secure the payment of the purchase price.

The bank takes the position that the stipulation requiring the purchaser to pay the seller $500 for each unsold lot is not part of the purchase price and is not therefore entitled to the rank of a vendor’s lien and privilege. The stipulation is, instead, the bank argues, a provision for liquidated damages for nonperformance of the obligations of the contract. As such, the amount cannot be considered due until suit is filed and the claim is reduced to an award by judgment of court. Therefore, because the claim for liquidated damages has not been reduced to judgment, the bank’s mortgage should bear a superior rank to the $50,000 claim. The bank’s mortgage would, therefore, rank after the promissory note for $3,517.93 executed contemporaneously with act of sale and mortgage to secure part of the purchase price or consideration. The bank’s argument is founded upon the premise that $500 per lot is not part of the price of the sale. In our view the $50,000 due the seller is part of the purchase price and as such it is entitled to the rank of a vendor’s lien and privilege. La.Civil Code art. 3249.

In Hibernia Bank & Trust Company v. McCall Brothers Planting and Manufacturing Company, 140 La. 763, 73 So. 857 (1917), this Court had occasion to decide whether a vendor’s lien applies to and secures the ten percent attorneys’ fees stipulated in a promissory note given as the part of the purchase price in a credit sale. While the facts are distinguishable from the facts in the instant case, the principle announced is applicable.

We held there that an obligation to pay a certain percentage as an attorney’s fee in the event it should become necessary to resort to legal proceedings or to employ an attorney to collect the amount of a promissory note representing the purchase price, although only a conditional obligation, was part of the debt or price or consideration of the sale. It was therefore secured by the vendor’s lien and privilege on the property whenever the conditional obligation to pay the attorney’s fees become absolute.

We see no reason why the vendor and purchaser may not agree that the price shall be an additional amount if the purchaser fails to sell the lots or otherwise comply with the obligations imposed upon the buyer. All that the Civil Code requires in that respect is that the price must be fixed and determined by the parties to the sale. La.Civil Code art. 2464.

While Article 2464 requires that the price be certain, and the price in the act of sale may have varied according to the number of lots unsold at the end of five years, the amount was readily determinable, on the basis of $500 per unsold lot. That which may be made certain is certain. Thus to be certain “[I]t suffices that the price be determinable by means of a direct relation with the elements, not depending upon the will of the parties.” Planiol: Traité Elémentaire De Droit Civil, Vol. 2-Part 1, No. 1378.

The stipulation of the act of sale in question also satisfies the other elements of the price requirement of Article 2464 of the Civil Code: It consists of a sum of money and the amount is serious, and it is not out of proportion with the value of the lots conveyed.

Further, the bank argues that as a matter of policy granting the $50,000 due the seller a vendor’s lien and privilege would do violence to commercial transactions. While such a stipulation may unduly encumber the immovable affected and deter lenders who would otherwise make advances for improving the property, the stipulation is valid and enforceable and falls within the ambit of the broad freedom our law confers upon contracting parties. Prospective lenders would be guided by the public records in such cases.

By its very terms the act of sale provides that the property conveyed could not be sold, alienated or encumbered to the prejudice of the mortgage retained by the seller to secure the purchase price. No one contends that Lessard Acres, Inc., could escape its obligation to pay plaintiff the sum of $500 per lot. Certainly the rights of the bank as mortgage creditor of Lessard Acres, Inc., can rise no higher than the rights which Lessard Acres, Inc., acquired in the act of sale. The bank’s mortgage must therefore be subject to the obligations of Lessard Acres, Inc., as set forth in the sale, which they were bound to notice on the public records.

For the reasons assigned, the judgment appealed from is affirmed.

TATE, J., dissents and assigns reasons.

DIXON and CALOGERO, JJ., dissent.

TATE, Justice,

dissenting.

I respectfully dissent.

The issue is whether a bank mortgage is primed by a $500 per lot penalty provided for in an instrument executed between a seller and a buyer of a 100-lot tract. The seller contends that the $500-per-lot penalty is part of the purchase price, entitling him to a vendor’s lien which primes the bank’s mortgage.

(1)

To understand the penalty clause’s purpose, it is important to consider the instrument as a whole. The purchase price is unequivocally shown to be $35,000 (which does not include the $500 per lot penalty figure). The price represents primarily a small cash payment and the assumption of three mortgages totaling some $30,000.

As a further part of the consideration, the buyer also agreed to perform certain acts, without cost to the seller. See Appendix A. These acts involve the construction of a water and sewerage distribution system, to be owned by a company owned by the seller, and prompt construction and sale of a large number of residences in the subdivision sold (within five years after the sale).

The instrument as a whole, including considerations, reflects the intent of the seller as ascribed by the parties to the sale: The seller divested himself of the property at a low price in order to obtain (at the buyer’s expense) ownership of a water and utility service, with assured customers represented by the purchasers of the 100 lots. He desired to do so, without at the same time obligating himself with the payment of the mortgages on the property.

The meaning and purpose of the clause at issue must be interpreted in the light of the intent of the contract as a whole. Civil Code Articles 1948, 1949, 1950, 1955.

This clause provides that, at the end of five years, if all 100 lots were not sold, “all lots remaining unsold by Buyer will revert in full ownership to Seller, ipso facto.” If this reversion provision were held invalid (as all parties concede it is), “the Buyer agrees to pay the Seller herein the sum of $500 per lot remaining unsold.”

The $500 per lot is obviously not part of the purchase price for the lots. It is only a penalty, in lieu of the reversion of the unsold lots to the seller.

The purpose of the clause is not to assure additional compensation for the lots to the seller. It is rather to provide a sanction against the buyer, should he fail to sell 100 lots (to accomplish his obligation to do so (see Appendix A) as part of the consideration for the sale at low price).

This purpose of the clause can more readily be seen by positing as fact the contemplated contractual scheme by which the buyer successfully enforced the reverter to him of all lots unsold at the end of five years (i. e., the underlying contractual obligation sought to be enforced alternatively by the $500 per lot penalty provided by the clause). In such case, although the buyer would still owe the entire (low) purchase price, he would nevertheless lose to the seller the unsold lots because he did not comply with his additional agreement, as part of the consideration for the sale (in addition to the price paid), that he re-sell these lots within the five year period. (To repeat, the contractual intent reflected by the requirement for this re-sale of the residential lots by the buyer within that period, is to furnish customers to the seller’s utility system, a principal cause reflected by the contract for sale of the property by the seller to the buyer.)

Thus, the $500 per lot figure provided by the clause is a penalty for failure to re-sell such lots within the five years required by the contract. It is not part of the purchase price.

The penalty is a personal obligation of the buyer independent of the debt for the purchase price. The penalty, not being part of the purchase price, is not secured by the vendor’s lien in the seller’s favor. It thus does not prime the bank's mortgage.

I therefore respectfully dissent from our affirming the previous courts’ decisions, which ranked the $500 per lot penalty owed by the buyer to the seller as superior to the bank’s mortgage for $40,000. The effect of our judgment is to permit the seller, to the prejudice of a third person with a recorded mortgage, to recover $50,000 additional to the purchase price stated as secured by the mortgage and vendor’s lien by the contract of sale.

(2)

The majority’s reliance upon Hibernia Bank & Trust v. McCall Bros., 140 La. 763, 73 So. 857 (1917), is misplaced. There, the attorney’s fees as stipulated in a promissory note were held to be secured by the vendor’s lien. We, however, there specifically noted that the consideration for the sale included “that the purchaser should pay the amount stated in the note, and the interest thereon, and, in the event [of suit for collection] * * *, then that the purchaser should also pay ten percent as attorney’s fees." 140 La. 766, 73 So. 858. (Italics mine.)

Therefore, we concluded, since the “obligation to pay conventional interest forms part of the debt on which it has accrued, * * * [w]e see no reason why the same rule should not apply to an obligation to pay an additional sum or percentage as an attorney’s fee, when it is stipulated as a part of the consideration for which the property is sold.” 140 La. 766, 73 So. 858. (Italics mine.)

In the present case, however, the $500 per lot penalty is not stipulated to be a part of the purchase price. Instead, the purchase “price ” is specifically stated to be $35,000, payable as described.

The sales instrument concludes that “in order to secure the full and final payment of the unpaid purchase price, represented as aforesaid [by the note], together with all costs, including attorney’s fees, Buyer grants and Seller retains a special mortgage with vendor’s lien and privilege on the property sold in favor of Seller and any further holder of the note, or any part thereof, until the note shall have been fully satisfied.” (Italics ours.)

Thus, unlike that in the Hibernia Bank, the present note executed for the purchase price expressly limited the vendor’s lien to the amounts stated by the note, including interest and attorney’s fees.

The vendor’s lien so secured did not include securing any penalty for non-performance of agreements by the buyer furnished by him additional to the purchase price owed by him as part of the consideration for the sale. This re-enforces the interpretation previously reached above in this opinion, by which the penalty payments cannot be regarded under any proper interpretation of the contract as being part of the purchase price secured by the vendor’s lien securing the sales price described in the instrument of sale.

Finding that the majority has incorrectly interpreted the clause in the light of its contractual intent, as well as has ignored the principles that liens are strictly construed, I must respectfully dissent.

Appendix A

The contract provides:

“This sale is made and .accepted for the following considerations: * * *
“(B) Performance by Buyer of the following acts at no cost to Seller:
(1) Erect five (5) foot high chain link fence around oxidation pond and water wells.
(2) When first ten (10) houses in subdivision are complete, Buyer shall drill water supply well of sufficient capability to furnish water needs for 200 single family residences. Buyer to supply all equipment and needs for water distribution to all lots conveyed herein, including, but not limited to, pump, reservoir, and water distribution lines. All of these facilities are to meet the approval of state and parish health department authorities. Upon installation of all these water supply and distribution facilities, title shall, ipso facto, and without further acts or documents, vest in Lessard Acres, Water and Sewer Works, Inc.
(3) Blacktopping of any new subdivision streets to meet Ascension Parish Poiice Jury requirements.
(4) Furnish all utilities to each lot in the subdivision, including, but not limited to, sewerage collection lines, electricity, natural gas (if needed), electricity, water.
(5) Any additional improvements to the subdivision undertaken by Buyer shall be at its expenses.
(6) All of the water distribution and supply system, and sewerage collection and disposal system, shall be owned and maintained by Lessard Acres Water & Sewer Works, Inc., which is owned by Seller.
(7) Buyer agrees to erect houses upon all subdivision lots as soon as sound business judgment dictates. As each house and lot is sold, $500.00 of the proceeds shall be paid to the Bank of Gonzales for the reduction of the principal balance due upon the two mortgages assumed by Buyer hereinabove. These $500.00 payments are to be in addition to the regular monthly installments due and payable on the two mortgages and are to be made to secure a release from the Bank of Gonzales mortgage and the second mortgage retained by Seller herein. Seller agrees to sign a release on each lot sold, upon payment by Buyer of the $500.00 to the Bank of Gonzales. No payment to Seller shall be due on the second mortgage retained herein until the entire balance due on the two mortgages assumed hereinabove has been paid and cancelled.
Seller agrees that by signing a release on each lot sold hereafter that he does additionally release said lot from any and all the provisions of this agreement, including but not limited to any resolutory condition, vendor’s lien, mortgage, etc.
(8) All sales of lots out of the subdivision shall be with reservation of ten (10) foot servitudes for public utility purposes, installation and maintenance of water and sewer lines by Seller’s corporation, as shown on survey map. * * * ”

      . The clause in full provides:
      “At the end of five (5) years from this date, if all one hundred (100) lots described on page one hereof are not sold, and all the mortgages mentioned herein on the property herein conveyed are not paid in full, then all lots remaining unsold by Buyer herein will revert in full ownership to Seller, ipso facto, and without any further act or action on the part of Seller or Buyer herein, and without cost to Seller herein. If for any reason this reverter paragraph is held null and void and unenforceable, the Buyer herein agrees to pay to Seller herein the sum of $500.00 per lot remaining unsold."


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Fred L. FORD, Jr.
    No. 59233.
    Supreme Court of Louisiana.
    June 20, 1977.
    Rehearing Denied Sept. 2, 1977.

      James A. Hobbs, Blackwell, Chambliss, Hobbs & Henry, West Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Fred L. Ford, Jr. was indicted by the grand jury for the Parish of Ouachita for the crime of pandering in violation of La. R.S. 14:84. After trial by jury, defendant was found guilty as charged and sentenced to serve four years at hard labor. On appeal, defendant relies on seven assignments of error for reversal of his conviction and sentence.

At the outset, defendant argues that we should recognize as error patent on the face of the record the insufficiency of the grand jury indictment against him.

Defendant was indicted for the crime of pandering in violation of La.R.S. 14:84, which provides as follows:

Pandering is the intentional:

(1) Enticing, placing, persuading, encouraging, or causing the entrance, of any female into the practice of prostitution, either by force, threats, promises, or by any other device or scheme; or
(2) Maintaining a place where prostitution is habitually practiced; or
(3) Detaining any female in any place of prostitution by force, threats, promises, or by any other device or scheme; or
(4) Receiving or accepting by a male, as support or maintenance, anything of value which is known to be from the earnings of any female engaged in prostitution; or
(5) Consenting, on the part of any parent or tutor of any female, to the female’s entrance or detention in the practice of prostitution; or
(6) Transporting any female from one place to another for the purpose of promoting the practice of prostitution.
Whoever commits the crime of pandering shall be imprisoned, with or without hard labor, for not more than five years.

The grand jury indictment essentially tracked the language of the statute by charging that defendant did:

unlawfully, and intentionally entice, place, persuade, encourage and cause the entrance of a female into the practice of prostitution, by force, threats, promises and by other device and scheme; maintain a place where prostitution was habitually practiced; detain a female in a place of prostitution by force, threats, promises and by other device and scheme; receive and accept, as support and maintenance, anything of value which was known to be from the earnings of a female engaged in prostitution, and transport a female from one place to another for the purpose of promoting the practice of prostitution, in violation of R.S. 14:84;

Only clause (5) of the statute concerning consent “on the part of any parent or tutor of any female to the female’s entrance or detention in the practice of prostitution” was not charged in the indictment. Defendant relies on our decisions in State v. Spina, 261 La. 897, 259 So.2d 891 (1972) and State v. Varnado, 208 La. 319, 23 So.2d 106 (1945) for the proposition that, when a statute “characterizes the offense in general or generic terms, an indictment or information charging the offense in the words of the statute is insufficient and the specific facts upon which the charge is based must be set out.” More recently, however, in State v. James, 305 So.2d 514 (La.1974), we held that “where in fact an accused has been fairly informed if the charge against him by the indictment and has not been prejudiced by surprise or lack of notice, the technical sufficiency of the indictment may not be questioned after conviction where, as here no objection was raised to it prior to the verdict and where, without unfairness, the accused may be protected against further prosecution for any offense or offenses charged by it through examination of the pleadings and the evidence in the instant prosecution.” (Emphasis added.) Moreover, we recognized in State v. Randolph, 334 So.2d 687 (La.1976) that an accused’s constitutional right to “be informed of the nature and cause of the accusation against him” should not be restricted to meaning that the defendant must be informed by indictment of the nature and cause of the accusation against him. The defendant’s right to learn before trial of the particulars of the offense for which he is tried can be adequately protected by the bill of particulars and other discovery devices. State v. Randolph, supra; State v. James, supra.

In the instant case, the indictment informed defendant of the nature of the charge against him by charging him with five of the six acts prohibited by law as constituting pandering. It additionally informed him of the period of time over which the offense was allegedly committed, January 1, 1974, through July 20, 1976. By answer to defendant’s request for a bill of particulars, he was further informed as to the four women with whom he was allegedly involved in illegal prostitution activities, the place he was-charged as maintaining where prostitution was habitually practiced, the parish within which he allegedly transported females for the purpose of promoting the practice of prostitution and the alleged receipt by him of money known to be from the earnings of females engaged in prostitution. By supplemental answer, defendant was informed more specifically as to the period of time the offense was committed as it pertained to each of the individual women involved. As in James and Randolph, defendant did not question the sufficiency of the indictment prior to verdict.

We are satisfied that the indictment considered together with the information provided in the bill of particulars was sufficient to fairly inform defendant of the charge against him, to adequately guard against surprise or lack of notice and to protect against further prosecution for the same offense. Accordingly, we find no reversible error patent on the face of the record relative to defendant’s indictment.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in failing to require the state to answer certain questions propounded in his motion for a bill of particulars. Essentially, he complains that he was not adequately informed as to the particular acts he allegedly committed in violation of La.R.S. 14:84.

It is well settled that the function of a bill of particulars is to inform a defendant more specifically of the nature and cause of the charge against him. La. Code Crim. P. art. 484; State v. O’Blanc, 346 So.2d 686 (La.1977); State v. Jones, 332 So.2d 466 (La.1976); State v. Monk, 315 So.2d 727 (La.1975). However, a defendant is not entitled in a bill of particulars to discover the details of the evidence with which the state expects to prove its case. State v. Knight, 323 So.2d 765 (La.1975); State v. Vince, 305 So.2d 916 (La.1974).

While we have recognized that an accentuated need exists for the state to furnish particulars where a crime charged may be committed in a number of different ways and when a crime involves not a single occurrence but a series of occurrences, there is no exact formula which can be applied to determine in a particular case whether a defendant has all of the information to which he is entitled. State v. Miller, 319 So.2d 339 (La.1975). Moreover, the granting or refusing of a bill of particulars is subject to the discretion of the trial judge and his ruling will not be disturbed absent a clear abuse of discretion. State v. Alexander, 334 So.2d 388 (La.1976); State v. Nelson, 306 So.2d 745 (La.1975); State v. Vince, supra.

In the instant case, defendant’s request for a bill of particulars contained twenty-one highly specific inquiries designed to determine exactly what evidence the state would produce to substantiate defendant’s performance of each individual type of prohibited conduct listed in the statute, i. e., enticing, placing, persuading, encouraging, causing, detaining by force, detaining by threats, detaining by promises, etc. As the trial judge noted in his per curiam to this assignment of error, defendant’s requests would have required the state not only to disclose specific evidence but to interpret the evidence so as to indicate whether it pertained to proof of “enticing” or “persuading,” or “encouraging,” etc.

By answer and supplemental answer to defendant’s request for particulars, the state provided information as to the particular females involved in the illicit activity, the general time period over which each female practiced prostitution, what he received as benefits from their activities, the principal place maintained where prostitution was practiced, the names of the females he was charged with transporting for prostitution purposes and the parish within which he allegedly transported them. Considering the nature of the offense charged in the instant case, we are satisfied that the state’s responses to defendant’s request for particulars adequately informed him of the nature and cause of the charges against him. Accordingly, the trial judge did not err in ruling the state’s answers to defendant’s motion for a bill of particulars sufficient in law.

Assignment of Error No. 1 is without merit.

ASSIGNMENTS OF ERROR NOS. 2, 3, 4 AND 5

Defendant contends the trial judge erred in improperly restricting his voir dire examination of four prospective jurors. He argues that he should have been permitted to ask each of the four jurors whether, if some close friend or relative was on trial for an offense, he would be satisfied to have them judged by jurors having the same frame of mind as himself.

La. Code Crim. P. art. 786 provides in pertinent part:

The court, the state, and the defendant shall have the right to examine prospective jurors. The scope of the examination shall be within the discretion of the court.

We have recognized that the purpose of voir dire examination is to determine qualifications of prospective jurors by testing their competency and impartiality. State v. Nero, 319 So.2d 303 (La.1975). It is designed to discover bases for challenges for cause and to secure information for an intelligent exercise of peremptory challenges. State v. Sheppard, 263 La. 379, 268 So.2d 590 (1972). The scope of voir dire examination is within the sound discretion of the trial judge and his rulings will not be disturbed on appeal in the absence of a clear abuse of discretion. State v. Clark, 325 So.2d 802 (La.1976). In order to determine whether a trial judge has in fact afforded a sufficiently wide latitude to the defendant in examining prospective jurors, a review of the trial judge’s discretionary rulings should be undertaken only on the record of the voir dire examination as a whole. State v. Roach, 338 So.2d 621 (La. 1976); State v. Monroe, 329 So.2d 193 (La. 1976).

The record in the instant case reflects that defendant was afforded wide latitude in voir dire examination as to the presumption of innocence, the burden of proof and the jurors’ attitudes toward the type of offense involved and evidence of an offensive nature which might be presented at trial. We are satisfied that defendant was not unreasonably restricted in obtaining information sufficient to intelligently exercise his right to challenge prospective jurors either for cause or peremptorily. Accordingly, we find no reversible error in the trial judge’s decision to disallow the questions at issue herein.

Assignments of Error Nos. 2, 3, 4 and 5 are without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends the trial judge erred in refusing to allow his motion for a bill of particulars and the answers thereto read to the jury along with the grand jury indictment. Defendant argues that he was entitled to have this information placed before the jury inasmuch as the bill of particulars furnished by the state operates to limit the scope of its proof at trial.

While the state is limited in its proof at trial by the facts recited in its bill of particulars, State v. Gibson, 322 So.2d 143 (La.1975), State v. Mann, 250 La. 1086, 202 So.2d 259 (1967), the bill of particulars forms no part of the indictment and need not be read to the jury along with the indictment. State v. Bickham, 239 La. 1094, 121 So.2d 207 (1960). Accordingly, the trial judge did not err in refusing to permit defendant’s motion for a bill of particulars and the state’s answers thereto to be read to the jury together with the indictment.

Assignment of Error No. 6 is without merit.

ASSIGNMENT OF ERROR NO. 7

Defendant contends the trial judge erred in admitting into evidence a tape recording of a transaction wherein defendant allegedly received money as his share of the earnings of a female engaged in prostitution. The recording was made through use of a sound transmitter concealed on the person of a woman working with the police to uncover evidence of defendant’s suspected illegal activities.

At trial, defendant objected to the introduction of the tape recording on the ground that it contained an inculpatory statement as to which the state had failed to give written notice prior to its opening statement as required by La. Code Crim. P. art. 768. He additionally argued at trial that the tape recording was not the best evidence of what was said during the transaction. However, in this court, defendant has abandoned the grounds for his objection urged before the trial judge. Instead, he argues that, since the recording was so distorted that only the state’s witnesses could be understood, the evidence lacked probative value and operated only to give undue credence to the verbal testimony of the witnesses.

Article 841 of the Louisiana Code of Criminal Procedure provides that an irregularity or error cannot be availed of after verdict unless the defendant has made known to the court his objection and the grounds therefor. It is well settled that a new basis for an objection cannot be raised for the first time on appeal. State v. Marks, 337 So.2d 1177 (La.1976); State v. Powell, 325 So.2d 791 (La.1976); State v. Forbes, 310 So.2d 569 (La.1975); State v. McCormick, 272 So.2d 692 (La.1973); State v. Evans, 249 La. 861, 192 So.2d 103 (1966). Since defendant did not urge the recording’s prejudicial effect and lack of probative value at trial, the issue is not properly before us for review.

Assignment of Error No. 7 is without merit.

DECREE

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

      . La. Const, art. 1, § 13 (1974).

      . We are not faced here with a case wherein an offense may be committed in a number of different ways and the state refuses to specify which type of conduct it proposes to prove in order to demonstrate defendant’s violation of the applicable statute. Compare State v. Russell, 292 So.2d 681 (La.1974) and State v. Mann, 250 La. 1086, 202 So.2d 259 (1967). In this case, the grand jury charged defendant with five different types of prohibited conduct and the state offered some evidence to substantiate each of the charges listed in the indictment.


author: DIXON, Justice.

text:
    CIVIL SERVICE COMMISSION OF the CITY OF NEW ORLEANS v. Charles C. FOTI, Jr., Criminal Sheriff of the Parish of Orleans.
    No. 59386.
    Supreme Court of Louisiana.
    June 20, 1977.
    Rehearing Denied Sept. 2, 1977.

      William J. Guste, Jr., Atty. Gen., Louisiana Dept, of Justice, Ralph D. Dwyer, Jr., Many, LoCoco & Dwyer, New Orleans, for plaintiff-appellant.
    T. Allen Usry, Usry, Leefe, Hartley & Stahl, New Orleans, for defendant-appellee.
   DIXON, Justice.

This declaratory judgment action was brought by the Civil Service Commission of the City of New Orleans against the Criminal Sheriff of the Parish of Orleans seeking a decree that all personnel of the sheriff’s “Rehabilitation Unit” are members of the classified service of the City of New Orleans. The sheriff reconvened, praying for a declaration that R.S. 33:1529 (Act 509 of 1968) is unconstitutional and that all his employees are in the State unclassified civil service.

The district court dismissed plaintiff’s suit and granted judgment on the defendant’s reconventional demand, decreeing that R.S. 33:1529 is unconstitutional as having been repealed by the 1974 Constitution, and that all employees of the sheriff, except those who had attained classified status pri- or to January 1, 1975, were unclassified employees in the State civil service.

The record shows that Louis Heyd, Jr., the predecessor of defendant Charles C. Foti, Jr., planned the establishment of a rehabilitation program in the Orleans Parish Prison, and obtained the passage of Act 509 of 1968, now R.S. 33:1529, which provides:

“A. The positions of employment covering the employees of the criminal sheriff of the parish of Orleans within the Orleans Parish Prison proper shall, on and after January 1,1969, be in the classified service of the city of New Orleans, and on and after said date shall be governed by all of the provisions of Section 15, Article XIV of the Constitution of Louisiana in the same manner and to the same extent as are other employees and positions placed by said provisions within the classified civil service of New Orleans. “B. All employees of the criminal sheriff of the parish of Orleans whose positions of employment are placed in the classified civil service of the city by the provisions of this section shall, on January 1, 1969, acquire permanent civil service status in the class of position they are occupying on such date, subject to passing a qualifying noncompetitive test, prescribed and given within a reasonable time thereafter by the director of the Department of City Civil Service, in order to determine their fitness to perform satisfactorily the duties of their positions. Thereafter they shall be deemed classified civil service employees in their respective classifications, and shall be subject to and governed by the provisions of Section 15 of Article XIV of the Constitution of Louisiana and the rules and regulations adopted by the New Orleans Civil Service Commission; provided, however, that the pay of any employee on the date of the inclusion of his position in the classified state service shall not be reduced by the application of the uniform pay plan to his class of position.”

The reference in the act to employees “within the Orleans Parish Prison proper” was intended, the testimony shows, to divide the employees of the sheriff into two divisions: “front office people,” courtroom employees, process servers, etc. would remain unclassified employees; employees who dealt with prisoners who were confined would be classified, because “that is where you needed professional people." The rehabilitation program was vague and ill-defined, consisting largely of volunteer workers operating a “crisis” program and a “work release" program from one of the floors of the prison. The program, or part of it, was moved during Heyd’s administration to an abandoned fire station on Thalia Street, but Heyd still considered that the rehabilitation employees would be in the classified service. Therefore, though the act by its words created a geographical division among the employees of the sheriff, Heyd’s intention was to classify those employees whose functions required them to deal with the prisoners.

Sheriff Foti testified that when he took office in April, 1974, there was practically no rehabilitation program — only a chaplain paid in part by a church organization and a crisis clinic, both located in the prison. A work release program was operated on Thalia Street by classified deputies under an unclassified director. In financing the new rehabilitation unit, Foti activated a dormant federal grant, and with funds from the federal and city governments employed personnel under what he called “personal service contracts.” The failure of Foti to obtain the director for the Rehabilitation Unit from a list of qualified applicants on the civil service list precipitated this litigation.

Sheriff Foti contends that R.S. 33:1529 is unconstitutional as violative of both the 1921 and 1974 Constitutions. It is argued that the statute was unconstitutional when written (in 1968) because (1) it attempted to place unclassified State civil servants in the classified city civil service in violation of La.Const. of 1921, Art. XIV, § 15(G)(c) and (2) it constituted a “local and special” law, and no compliance with the publication requirements of La.Const., Art. IV, § 6. Alternatively, if the court concludes that the statute does not violate the 1921 Constitution, Sheriff Foti argues that the statute is in conflict with certain provisions of the present Constitution.

Article XIV, § 18 of the present Constitution provides:

“(A) Laws in force on the effective date of this constitution, which were constitutional when enacted and are not in conflict with this constitution, shall remain in effect until altered or repealed or until they expire by their own limitation.
“(B) Laws which are in conflict with this constitution shall cease upon its effective date.” (Emphasis added).

Accordingly, laws which violated the former Constitution are void and ineffective. Sheriff Foti’s initial argument is that the State could not constitutionally place a State unclassified civil servant in the city classified civil service. This argument is based on La.Const. of 1921, Art. XIV, § 15(G)(c) which provided:

“(c) Although the Legislature shall not increase the exemptions or add to the unclassified service defined in (G)(a), no provision or restriction in (G)(a) or this section shall deny to the Legislature or to the governing body of any city, or any parish government jointly with one or more municipalities under a plan of government, having a Civil Service System, the power to place in the classified state or city service, as the case may be, any offices and positions, except elective offices, which are placed in the unclassified service by (G)(a), provided the governing body of any city or any parish governed jointly with one or more municipalities or any municipality desiring to so place in the classified state or city service, as the case may be, any offices and position shall notify, in writing, the city or state Civil Service Commission, as the case may be, of its desire and intent to do so at least six months prior to the effective date of the inclusion of said offices under said system.” (Emphasis added).

It is contended that the language italicized above limits the State to placing State unclassified employees in the State classified civil service and, thus, since the office of criminal sheriff of Orleans Parish is allegedly a “state” position, the legislature could not place his employees in the city classified civil service. A reading of the italicized phrase out of context does appear to substantiate this claim. However, the phrase is also used in the following clause to explain that the governing body of any city or parish which desires to place any offices or positions in the state or city service, must give notice to the respective civil service commission. Thus, reading the whole of the provision leads to the conclusion that the italicized phrase was not intended to operate as a restriction upon the legislature, but meant that the legislature or local governing authority could place employees who were in their respective unclassified service into the classified service of the State or city civil service after proper notice to the civil service commission involved.

Since a' notice of the intention to apply for the passage of Act 509 of 1968 was not published, it is also argued that the law violates La.Const. of 1921, Art. IV, § 6 which provided:

“No local or special law shall be passed on any subject not enumerated in Section 4 of this article, unless notice of the intention to apply therefor shall have been published, without cost to the State, in the locality where the matter or things to be affected may be situated, which notice shall state the substance of the contemplated law, and shall be published at least thirty days prior to the introduction into the Legislature of such bill, and in the same manner provided by law for the advertisement of judicial sales. The evidence of such notice having been published shall be exhibited in the Legislature before such act shall be passed, and every such act shall contain a recital that such notice has been given.”

However, as noted above, the 1921 Constitution expressly granted the legislature the power to place “any offices and positions” into the city classified civil service. It has repeatedly been held that the proscriptions of Article IV, § 6 are inapplicable when the Constitution gives the power to adopt legislation on a particular subject, even though otherwise “special or local” in character. See, e.g., Fenner v. Board of Commissioners of Red River, Atchafalaya and Bayou Boeuf Levee District, 137 La. 557, 68 So. 953 (1915); Mobley v. Police Jury of Bossier Parish, 41 La.Ann. 821, 6 So. 779 (1889); Excelsior Planting & Manufacturing Co. v. Green, 39 La.Ann. 455, 1 So. 873 (1887); Davidson v. Houston, 35 La.Ann. 492 (1883); New Orleans Taxpayers’ Association v. City of New Orleans, 33 La.Ann. 567 (1881). Cf. Williams v. Guerre, 182 La. 745, 162 So. 609 (1935); State v. Dalon, 35 La.Ann. 1141 (1883). Thus, pretermitting whether R.S. 33:1529 is a “local or special” law, we conclude that the enactment of the statute did not violate La.Const. of 1921, Art. IV, § 6.

As quoted above, the present Constitution, Art. XIV, § 18, provides that laws which were constitutional when enacted remain effective if they are not in conflict with the 1974 Constitution. Since we have determined that R.S. 33:1529 did not violate the 1921 Constitution, it remains effective if its provisions do not contravene the 1974 Constitution.

Sheriff Foti argues that the present Constitution places his personnel in the unclassified civil service. He bases this argument upon Art. X, § 2 and Art. V, § 32 which provide:

“The state and city civil service is divided into the unclassified and the classified service. Persons not included in the unclassified service are in the classified service.
“The unclassified service shall include the following officers and employees in the state and city civil service:
“(10) employees, deputies, and officers of the legislature and of the offices of the governor, lieutenant governor, attorney general, each mayor and city attorney, of police juries, school boards, assessors, and of all offices provided for in Article V of this constitution except the offices of clerk of the municipal and traffic courts in New Orleans . . .” (Emphasis added). Article X, § 2(B)(10).
“Except for provisions relating to terms of office as provided elsewhere in this Article, and notwithstanding any other contrary provision of this constitution, the following courts and officers in Orleans Parish are continued, subject to change by law: the civil and criminal district courts; the city, municipal, traffic, and juvenile courts; the clerks of the civil and criminal district courts; the civil and criminal sheriffs; the constables and the clerks of the first and second city courts; the register of conveyances; and the recorder of mortgages.” (Emphasis added). Article V, § 32.

These provisions clearly provide that the criminal sheriff’s employees and deputies are unclassified employees. Since R.S. 33:1529 on its face conflicts with the constitutional provisions, Art. XIV, § 18(B) repealed the statute. However, the 1974 Constitution provides in Art. XIV, § 9:

“Upon the effective date of this constitution, all officers and employees of the state and of the cities covered hereunder who have status in the classified service shall retain said status in the position, class, and rank that they have on such date and shall thereafter be subject to and governed by the provisions of this constitution and the rules and regulations adopted under the authority hereof.” (Emphasis added).

By virtue of Art. XIV, § 35, the 1974 Constitution became effective at 12:00 midnight on December 31, 1974. Accordingly, employees of the criminal sheriff who prior to the effective date had acquired classified status shall retain that status.

Those employees of the criminal sheriff of the Parish of Orleans who (1) by the terms of R.S. 33:1529 work “within the Orleans Parish Prison proper” and (2) acquired their positions prior to 12:00 p. m. on December 81, 1974, retain their classified status in the city civil service. The “prison proper” is a geographical division. However, it cannot be assumed that the legislature intended that the prison, as it existed in 1968, should never be expanded nor moved. R.S. 15:1134 (Act 441 of 1970, as amended by Act 723 of 1972) specifically provides for minimum security structures where the Orleans Criminal Sheriff may operate “community rehabilitation centers.” The record before us does not contain specific enough evidence to decide which individual employee is classified. In reaching those decisions, however, the parties are instructed that the “prison proper,” as used in R.S. 33:1529, includes employees of the sheriff in the Orleans Parish Rehabilitation Unit. All other employees of the Criminal Sheriff of the Parish of Orleans are and remain State unclassified employees.

For these reasons the judgment of the district court is affirmed, at plaintiffs cost.

      . The case was initially appealed to the Fourth Circuit Court of Appeal. Since the judgment specifically decreed that R.S. 33:1529 is unconstitutional as. being repealed by the 1974 Constitution, the Court of Appeal transferred the appeal to this court. La.Const. Art. V, § 5(D)(1); C.C.P. 2162.

      . The district judge, who also reached this conclusion, stated that the result was “reaffirmed” by the omission in the 1974 Constitution of Art. XIV, § 15(G)(c) of the 1921 Constitution (see text, supra) which allowed the governing bodies of the State or city to place unclassified positions within the classified service. Since this 1921 constitutional provision was not specifically continued as a statute by virtue of La.Const. of 1974, Art. XIV, § 16, it was repealed by the 1974 Constitution. See Art. 14, § 17 of the 1974 Constitution. However, we do not rely upon this repeal in reaching the conclusion that R.S. 33:1529 contravenes the 1974 Constitution. In fact, it is arguable that the wording in Art. V, § 32 to the effect that the office of criminal sheriff is continued “subject to change by law," would permit the legislature to reestablish the office of criminal sheriff as only a statutory office. Thus, the office of criminal sheriff would be taken out of Art. V, so that Art. X, § 2(B)(10) would not apply to place the sheriff’s employees in the unclassified service. However, even assuming that this provision would allow the legislature through appropriate legislation to place some or all of the criminal sheriff’s employees in the State or city classified civil service, by the wording of the present Constitution R.S. 33:1529 is in conflict with the clear terms of the new Constitution and ceased to be effective.

      . The Civil Service Commission of New Orleans erroneously contends that Art. XIV, § 9 purports to retain the classified status of an “office or position” which was filled prior to the effective date of the Constitution. However, the clear wording of the section retains such status only for the individual who had attained such status prior to January 1, 1975. The other arguments of the Commission are based upon the assertions that the conclusion we reach may have untoward consequences. Although we may sympathize with the problems this judgment may cause, these arguments address themselves to the legislature.


author: PER CURIAM.

text:
    STATE of Louisiana v. Stanley JOHNSON.
    Nos. 58708, 58709 and 58710.
    Supreme Court of Louisiana.
    July 1, 1977.
    Rehearings Denied Sept. 2, 1977.
    William D. O’Regan, III, Laplace, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Melvin P. Barre, Dist. Atty., Roland J. St. Martin, Asst. Dist. Atty., Abbott J. Reeves, Director, Regina C. Cooper, Research Atty., Research and Appeals Division, Metairie, for plaintiff-appel-lee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Leonard WASHINGTON.
    Nos. 58711, 58712 and 58713.
    Supreme Court of Louisiana.
    July 1, 1977.
    Rehearings Denied Sept. 2, 1977.
    William D. O’Regan, III, Laplace, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Melvin P. Barre, Dist. Atty., Roland J. St. Martin, Asst. Dist. Atty., Abbott J. Reeves, Director, Regina C. Cooper, Research Atty., Research and Appeals Division, Metairie, for plaintiff-appel-lee.
   PER CURIAM.

Affirmed.


author: TATE, Justice. SUMMERS, Justice

text:
    STATE of Louisiana, Appellee, v. Aaron ANDERSON, Jr., Appellant.
    Nos. 58911 and 58912.
    Supreme Court of Louisiana.
    July 1, 1977.
    Rehearing Denied Sept. 2, 1977.

      Alex W. Wall, Baton Rouge, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Robert H. Hester, Marilyn C. Castle, Asst. Dist. Attys., for appellee.
   TATE, Justice.

The defendant Anderson was convicted of armed robbery, La.R.S. 14:64, and sentenced as a second offender, La.R.S. 15:529.1, to thirty-three years imprisonment at hard labor.

Upon his appeal, the defendant urges two principal assignments of error: (1) that the defendant’s sentence was erroneously enhanced, since the state did not prove he was á second offender within the meaning of La.R.S. 15:529.1 (Assignments 8, 9, 10); and (2) that the robbery conviction should be set aside, because the trial court erroneously admitted an oral statement by a co-defendant (Assignment l).

For the reasons to be stated, we find no merit to the latter contention and, accordingly, affirm the conviction; but we sustain the former contention and set aside the enhanced sentence.

I.

By Assignments 8, 9, and 10, the defendant attacks as erroneous the trial court’s imposing upon the defendant an enhanced sentence, as well as its holding that the accused was a second offender within the meaning of La.R.S. 15:529.1. Essentially, these assignments urge that the present offense was committed more than five years after “expiration of the maximum sentence ... of the previous conviction,” La.R.S. 15:529.1 C, a necessary prerequisite for its use as a prior conviction.

In the basic prosecution, the defendant was convicted of an armed robbery committed on August 2, 1975. After conviction of that offense, the state filed an information charging the defendant as a second offender on the basis of a February 20, 1967 felony conviction. For that offense, he had been sentenced on March 3, 1967 to five years and six months imprisonment — a sentence which, under its terms, would have expired on September 3, 1972.

Thus, under the wording of 629.1 C, the second offense of August 1975 occurred within five years of a maximum sentence as originally imposed in the minutes.

However, in fact, the defendant was finally discharged (not paroled) from the penitentiary on June 19, 1970. This was because the defendant was pardoned for part (six months) of the original sentence, and also because the original sentence was diminished by law for “good time” credit earned by good behavior during confinement. La.R.S. 15:571.3.

Therefore, under the “Full Term Date”, the warden’s certificate shows the June 10, 1970 date as superseding the initial September 4,1972 date, by virtue of “Act 426”, the good-time enactment. See footnote 5.

The defendant’s contention, thus, is that “the expiration of the maximum sentence” for the previous offense dates, not from the sentence as initially contemplated by the minute entry, but rather from the actual expiration of the maximum sentence, as shortened by pardon and “good time” diminution allowed by law. If so, the evidence shows that the present offense was committed more than five years after expiration of the maximum sentence for the prior offense; therefore, the defendant cannot be sentenced as a second offender.

The defendant’s position is well taken. The interpretation urged by the defendant is in accord, as will be seen, with the general purpose of the five-year “cleansing” period, as well as with the principle that statutes imposing penalties upon individuals are strictly construed. It is also supported by clarifying language in the same statute, La.R.S. 529.1 F, as well as by the language and scheme of a related statute regulating paroles, revocations, and final discharges from sentences initially imposed.

La.R.S. 15:529.1 F of the multiple offender statute, describes the prima facie evidence required by the state to support a defendant being adjudged a multiple offender, and thus subject to enhanced punishment. The records of the prior offense required to be introduced shall contain: “a statement of the court in which a conviction was had, the date and time of sentence, length of time imprisoned, and date of discharge from prison or penitentiary." (Italics ours.)

The section further provides that these “shall be prima facie evidence on the trial of any person for a second and subsequent offense of the imprisonment and of the discharge of the person, either by a pardon or expiration of his sentence as the case may be under the conviction stated and set forth in the certificate.” (Italics ours.)

Construing the act as a whole, the expiration of the sentence intended to fix the commencement of the five-year “cleansing” period is the date of the individual’s actual “discharge” from being subject to penitentiary confinement under the earlier conviction relied upon. If the initial sentence for the offense reflected by the minutes were the sole criterion, the showing required by the state would not include as part of the state’s prima facie case any indication of the date of discharge. Further, the circumstance that the original sentence was somewhat shortened (as here) by a pardon would be immaterial. Subsection 529.1 F equates the “expiration of his sentence” with the defendant’s “discharge” from custodial liability.

The reference to the five years commencing after “expiration of the maximum sentence” in 15:529.1 C can best be understood by reference to the parole statute, La.R.S. 15:574.1-14. In main scheme, this was first enacted as Act 44 of 1942 as a companion act to Act 45 of 1942, the genesis of our present multiple-offender statute (i.e. of La. R.S. 15:529.1).

The provisions of the parole statute are of assistance in determining that the “expiration of the maximum sentence” of the multiple offender statute occurs when the convicted person is finally discharged from state supervision or custody.

When a person is paroled, he is subject to the orders and supervision of the parole board, but nevertheless “Each parolee shall remain in the legal custody of the institution from which paroled * * *.” La.R.S. 15:574.7 A. “When the parolee has completed his full parole term, he shall be discharged from parole and shall be issued a final order of discharge by the board. A copy of this order shall be sent to the Department of Corrections to be made a matter of permanent record.” 15:574.6.

However, if a parole is revoked, “ * * * the parolee shall be returned to the institution from which he was paroled and serve the remainder of his sentence as of the date of his release on parole * * 15:574.-9. In such event, we note, the parolee will not be discharged at the expiration of the time fixed by his initial sentence, but instead at some later date — i. e., at the expiration of the actual “maximum” sentence served, not of the earlier date of expiration of the sentence initially imposed on him.

The statutory intent, thus, is that a sentence expires when the prisoner is discharged from state custody and supervision, not when the theoretical date arrives on which the initial sentence would have terminated. Thus, when the convicted person is discharged earlier (as well as later) than the expiration date of the sentence initially sentenced, then the actual maximum sentence is that determined by his date of legal discharge, whether extended through revocation of parole or shortened by law due to “good time” diminution of the initial sentence. It is not until the date of actual discharge that the individual has fully paid his debt to society, insofar as owed because of an offense for which he has been convicted.

We are re-enforced in this interpretation by considering the functional reason for which the five-year cleansing period was first added to our multiple-offender provisions, as re-enacted by Act 45 of 1942.

In the articles published by the Louisiana Lav/ Review to explain the new criminal code and the companion enactments regulating enhanced sentences and paroles, a leading member of the drafting committee stated: “The new [enhanced-sentence] statute is not applicable when a period of more than five years has elapsed between the expiration of the sentence imposed for the last previous felony conviction, and the time of commission of the latest felony. This provision was included in the law because it was felt that if the defendant did not violate the law for a period of five years he was not properly classed as a habitual offender.” Wilson, cited footnote 8 above, at 5 La.L.Rev. 61-62.

As summarized by Professor Dale Bennett, noted scholar of Louisiana criminal law: “In addition to providing less drastic penalties for the multiple offender, the 1942 act sought to give the criminal a better chance for rehabilitation by providing that he would not be treated as a habitual offender if he could avoid further felony convictions for a period of five years.” 9 La.L. Rev. 271-72 (1949).

(This five-year cleansing period for rehabilitative purposes does not run, for instance, during “any period of penal servitude by a person in a penal institution within or without the state.” La.R.S. 15:529.1 C (quoted in full in footnote 4 above.)

In the instant case, the defendant was convicted of attempted murder in 1967, arising out of an accident in 1966. He served his time, received a diminution of his initial sentence due to good behavior, and was finally discharged from any further punishment for the 1966 crime in June of 1970. More than five years elapsed after this discharge, during which (so far as the record shows), he was a law-abiding citizen.

The present offense occurred more than five years after he had served his entire sentence under the 1967 conviction. In his case, the “maximum” sentence expired short of the time initially fixed for the sentence for the first conviction, due to pardon and diminution by law of his initial sentence (just as the “maximum” sentence might have been at a later date under other circumstances, see above).

Therefore, prior to the present offense, more than five years had elapsed after expiration of the maximum sentence served for the first offense. Upon the date he was finally discharged from any further sentence for his first crime, either in custody or under state supervision, he had completely paid his debt to society for that crime.

Since the present offense was committed more than five years after expiration of the maximum sentence served for the defendant’s first conviction, he cannot under La. R.S. 15:529.1 C receive an enhanced punishment upon the present conviction as a second offender. The enhanced sentence must therefore be set aside, and the case remanded to the district court for re-sentencing in accordance with law.

II.

With regard to the basic robbery conviction itself, the accused relies only upon Assignment of Error 1 for reversal. This relates to permitting a police officer to testify as to an oral statement by LeDuff, a co-defendant at the trial.

The substantial contention made by Anderson, the present defendant, is that the admission of testimony of this out-of-court statement by a co-defendant denied him his constitutional confrontation (cross-examination) rights as to the veracity of this un-sworn statement. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); State v. Herman, 304 So.2d 322 (La.1974).

The co-defendant’s statement, while exculpatory to some extent of himself, is allegedly inculpatory as to the present accused. (Neither defendant took the stand to testify at the trial of innocence or guilt.)

The substance of LeDuff’s statement to the police witness was that he and Anderson had been playing poker and were in his car about twenty minutes on their way home when stopped by the police. As to a gun found under the driver’s seat, he stated he did now know to whom the pistol belonged or how it had gotten under the seat of his automobile.

The vehicle was stopped by the policy shortly (within minutes) after the offense. This robbery was committed when one person (identified as Anderson) came in with a pistol and held up the clerk at a convenience store. Afterwards, the robber hopped into a waiting vehicle, which drove off at high speed.

When the police stopped the vehicle, Le-Duff was driving it, with Anderson as his passenger. Proceeds of the robbery were found in a paper bag on the floorboard of the passenger’s seat, while a .22 caliber pistol (resembling that used in the robbery) was found under the driver’s seat.

Under these circumstances, the incriminating fact resulted from the presence of the pistol in the vehicle occupied by these two defendants so shortly after the robbery, not from any claimed ownership or not of the weapon. No issue is raised as to the admissibility of the testimony itself that the gun was found in the vehicle.

Further, in view of the substantial and uncontradicted testimony that Anderson (not the vehicle’s driver) used the pistol in the robbery, it is difficult to find significantly prejudicial as to him any testimony that the weapon did not belong to the driver, who (allegedly) did not know how it arrived under his seat.

That is, had the driver LeDuff himself testified to the same effect as his oral statement given to the officer, cross-examination as to his ownership or knowledge of the weapon could not, it seems to us, have developed any information favorable or unfavorable to the determination of Anderson’s guilt. Whether or not LeDuff owned the pistol or knew how and when it had been placed under the driver’s seat, was immaterial, under the facts of this case, as to the determination of Anderson’s guilt of the crime charged, nor did the information that LeDuff did not claim ownership or knowledge of the gun constitute, under the facts of the case, any significantly prejudicial reflection against Anderson.

The situation is thus distinguishable from that in State v. Herman, 304 So.2d 322 (La.1974). There, the unsworn and uncross-examined out-of-court statement of a co-defendant permitted the trial jury to draw an inference of fact relevant to its consideration of the other defendant’s guilt: The latter was thereby prejudiced by the denial of his confrontation rights.

We are inclined to believe that admission of the co-defendant’s out-of-court statement was erroneous under Herman. Nevertheless, we find that, if erroneous, its admission was harmless under the facts of this case. La.C.Cr.P. art. 921; cf., Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

Decree

For the reasons assigned, therefore, we affirm the conviction, but we set aside the sentence. We remand the case for re-sentencing consistent with the views expressed herein and in accordance with law.

CONVICTION AFFIRMED, BUT CASE REMANDED FOR RE-SENTENCING.

SANDERS, C. J., concurs in the affirmance of the conviction but otherwise dissents.

SUMMERS, J., concurs in part and dissents in part, for the reasons assigned.

SUMMERS, Justice

(concurring in part and dissenting in part).

I agree that the conviction should be affirmed and therefore concur in the result reached by the majority in that case. However, I do not agree with the majority opinion in its interpretation of the Habitual Offender Law, and I therefore dissent from that part of the decree which sets aside the enhanced penalty and remands the case for resentencing.

      . Docket No. 58,911 concerns the robbery prosecution and Docket No. 58,912 concerns the second offender bill.

      . In brief, the defendant abandoned assignments 2, 3, 4, 7. Assignments 5 and 6 relate to alleged errors in the multiple-offender proceedings. We need not discuss them, since we have determined on another ground that the defendant was incorrectly held to be a second offender.

      . Assignment 8 is taken from the refusal to grant a motion to acquit the accused of the charge in the enhanced-sentence bill that he was a second offender. Assignment 9 was taken to the denial of a motion in arrest of his adjudication as to a second offender. Assignment 10 is taken in support of his objection at the hearing to evidence showing the prior offense, in the absence of a showing that the maximum sentence for it had expired more than five years before the present offense. Without passing on the technical aspects of the motions used, it suffices to say that, however denominated, they clearly objected on the ground now relied upon on appeal to the defendant receiving an enhanced punishment as a second offender. This sufficiently preserves the issue for appeal. La.C.Cr.P. arts. 841, 844, 920(1).

      .La.R.S. 15:529.1 C provides that its provisions permitting enhanced sentence upon a subsequent conviction, because of prior offenses, “shall not be applicable in cases where more than five years have elapsed since the expiration of the maximum sentence, or sentences, of the previous conviction, or convictions, and the time of the commission of the last felony for which he has been convicted. In computing the period of time as provided herein, any period of servitude by a person in a penal institution, within or without the state, shall not be included in the computation of any of said five year periods.”

      . As enacted at the time of the defendant’s imprisonment and discharge, this statute provided: “Every prisoner in the state penitentiary who has been convicted of a felony and sentenced to imprisonment for one year or more may earn a diminution of sentence by good behavior, to be known as ‘good time’.” La.R.S. 15:571.3 (as amended by Act 426 of 1964).

      . The defendant concedes that, if he were paroled, his original sentence would not have expired until he was finally discharged from state supervision. Further, see below, if he had been paroled and his parole were revoked, his “maximum sentence” would not have expired until some date beyond that originally imposed.

      . La.R.S. 15:529.1 F provides:
      “The certificates of the warden or other chief officer of any state prison, or of the superintendent or other chief officer of any penitentiary of this state or any other state of the United States, or of any foreign country, under the seal of his office, if he has a seal, containing the name of the person imprisoned, the photograph, and the finger prints of the person as they appear in the records of his office, a statement of the court in which a conviction was had, the date and time of sentence, length of time imprisoned, and date of discharge from prison or penitentiary shall be prima facie evidence on the trial of any person for a second and subsequent offense of the imprisonment and of the discharge of the person, either by a pardon or expiration of his sentence as the case may be under the conviction stated and set forth in the certificate.”

      . These two enactments, along with the Louisiana Criminal Code of 1942 (Act 43 of 1942), were component parts of an overall codification and re-enactment of Louisiana criminal and penal statutes. See Wilson, The Louisiana Criminal Code — Making the Punishment Fit the Criminal, 5 La.L.Rev. 53 (1942).

      . LeDuff and the present defendant (Anderson) were jointly indicted for the offense. At their joint trial, La.C.Cr.P. art. 704, LeDuff was convicted of simple robbery. So far as the record shows, he did not appeal.


text:
    STATE of Louisiana v. Milton L. GRIFFIN.
    No. 59273.
    Supreme Court of Louisiana.
    July 1, 1977.
    Rehearing Denied Sept. 2, 1977.

    Charles W. Seaman, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James Lynn Davis, Dist. Atty., Herman L. Lawson, Asst. Dist. Atty., for plaintiff-appellee.

       Dixon, J., was of the opinion that a rehearing should be granted.

   PER CURIAM.

The record discloses that the defendant was sentenced on the same day that his Second Amended Motion for a New Trial was denied and does not indicate that he waived the required twenty-four delay. La.C.Cr.P. art. 873. Even though defendant did not object to this error at the time of sentencing or urge it on appeal, the error shall be considered by this Court since it is an error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. La.C.Cr.P. art. 920(2); State v. Young, 337 So.2d 1196 (La. 1976).

Defendant’s conviction is affirmed, but the sentence imposed is vacated and set aside, and the case is remanded to the district court with instructions to the trial judge to sentence defendant in accordance with law.


text:
    STATE of Louisiana v. Jerry T. Alex ANDER.
    No. 59316.
    Supreme Court of Louisiana.
    July 1, 1977.
    Rehearing Denied Sept. 2, 1977.
    Daniel J. Markey, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Earl HUTTO.
    No. 59341.
    Supreme Court of Louisiana.
    July 1, 1977.
    Rehearing Denied Sept. 2, 1977.

      James B. O’Neill, Zwolle, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Herman L. Lawson, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Earl Hutto and Rocky Tyler were charged in the same bill of information with aggravated criminal damage to property in violation of La.R.S. 14:55. After trial by jury, Hutto was found guilty as charged and was sentenced to serve five years at hard labor. On appeal, defendant relies on three assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial judge erred in denying his motion for a mistrial made during the voir dire examination of the prospective juror, W. A. Barnard.

On voir dire examination of Barnard by the state, Barnard indicated that, although he had heard rumors about the case which were circulating among the residents of Pleasant Hill, Louisiana, where the crime was allegedly committed, he had no preconceived notion of defendant’s guilt or innocence. After completion of examination by the state, the prospective juror was examined by defense counsel who delved into what Barnard had heard about the case. After in-depth questioning by defense counsel, Barnard candidly admitted that defendant was rumored to be the individual who had fired a shot at a house occupied by Jere Gregory and his family. Immediately, defense counsel challenged the prospective juror for cause which challenge was allowed by the trial judge. Defendant then moved for a mistrial arguing that Barnard’s statement uttered in the presence of other prospective jurors was so prejudicial as to make it impossible for him to obtain a fair trial. The trial judge denied the motion. No admonition was requested by defense counsel.

Voir dire examination of prospective jurors is designed to discover bases for challenges for cause and to secure information for an intelligent exercise of peremptory challenges. State v. Ford, 349 So.2d 300. (La.1977); State v. Sheppard, 263 La. 379, 268 So.2d 590 (1972). The questions propounded by defense counsel to the prospective juror in the instant case were designed to ferret out any potential adverse influence on Barnard’s ability to render an impartial verdict. Although the prospective juror’s candid response provided a justifiable basis for the exercise of a challenge for cause, it did not warrant the declaration of a mistrial. Mistrial is a drastic remedy to be sparingly granted and is only authorized in specified instances where unnecessary prejudice results to an accused. State v. Governor, 331 So.2d 443 (La.1976); State v. Sylvester, 298 So.2d 807 (La.1974); State v. Clouatre, 262 La. 651, 264 So.2d 595 (1972). No showing was made that the response of the excused juror to the inquiry of defense counsel affected the other jurors. Nor do we find that any undue prejudice resulted therefrom. We consider that the prospective juror’s response was an honest and frank answer to defense questions directed toward discovering partiality or bias on the part of the juror. Therefore, the trial judge did not err in denying defendant’s motion for a mistrial.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial judge erred in denying his motion for a mistrial based upon the reference of a state witness in her testimony to another crime committed by defendant.

At trial, the state called to the stand Mrs. Jere L. Gregory, an occupant of the house which was damaged by a shotgun blast fired through a kitchen window. On direct examination, the following colloquy occurred:

Q. Do you know the Defendant, Earl Hutto?
A. I didn’t know him until the night before he robbed our store.

Immediately, defense counsel objected to the witness’ remark and moved for a mistrial or, in the alternative, an admonition to the jury to disregard the statement. After the jury was removed from the courtroom, defense counsel asserted that, although the “remark was certainly not solicited by the [sjtate,” it should be attributed to the prosecution since the witness was under the control of the state. Therefore, it was argued, the remark constituted a prohibited reference to another crime attributable to the state thereby mandating a mistrial under La.Code Crim.P. art. 770. In opposition to the motion for a mistrial, the state argued, inter alia, that the witness’ remark was not within the scope of La.Code Crim.P. art. 770, but rather that La.Code Crim.P. art. 771 was the applicable article. Accordingly, an admonition would be sufficient to dispel any prejudice which might have resulted. After a brief recess, the trial judge denied the motion concluding that any prejudicial effect of the remark could be sufficiently corrected by an admonition to the jury to disregard the witness’ statement. The jury returned to the courtroom and was so instructed. No further mention of the robbery was made thereafter during trial.

A direct or indirect reference to another crime committed or alleged to have been committed by defendant, as to which evidence would not be admissible, made within the hearing of the jury by the judge, district attorney or a court official, during trial or in argument, would require a mistrial on motion of defendant. La.Code Crim.P. art. 770(2). However, Mrs. Gregory was not a “court official,” therefore article 770 does not apply. Rather, the applicable provision is La.Code Crim.P. art. 771. State v. Hardy, 344 So.2d 1018 (La.1977); State v. Jones, 332 So.2d 466 (La.1976); State v. Lepkowski, 316 So.2d 727 (La.1975); State v. Clark, 288 So.2d 612 (La.1974).

La.Code Crim.P. art. 771 provides in pertinent part:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

In the instant case, by defense counsel’s own admission, the reference to another crime was not deliberately obtained by the design of the prosecutor to prejudice the rights of defendant. Furthermore, the witness’ remark went beyond the scope of the question propounded to her as to her knowledge of defendant, an inquiry which called for a simple affirmative or negative response. Her remark was therefore unsolicited and unresponsive to the. prosecutor’s question. Unsolicited and unresponsive testimony is not chargeable against the state to provide a ground for the reversal of a conviction. State v. Hardy, supra; State v. Davis, 339 So.2d 825 (La.1976); State v. Jones, supra; State v. Luneau, 323 So.2d 770 (La.1975); State v. Lewis, 315 So.2d 626 (La.1975). The admonition by the trial judge to the jury to disregard the witness’ statement was sufficient to dispel any prejudice which might have been created and to assure defendant a fair trial. Hence, the trial judge did not err in denying defendant’s motion for a mistrial.

Assignment of Error No. 2 lacks substance.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that the trial judge erred in admitting in evidence a written confession made by him while under interrogation on the ground that it was not freely and voluntarily made. He argues that the free and voluntary nature of the confession was vitiated by several factors, namely, that he was intoxicated at the time that he confessed to the crime; the interrogation was conducted in a small confined area in the presence of three armed policemen; against his will, he was induced to confess by the deputies’ remarks to “make it light” for himself; he was falsely advised that Rocky Tyler, his co-participant in the offense, had implicated him in the crime; and lastly he was not informed of his rights to confer with counsel during interrogation. Prior to trial, no motion to suppress the written confess was filed by defendant.

During the trial, outside of the presence of the jury, a suppression hearing was conducted during which the state offered testimony of the Chief of Police of Pleasant Hill, Willie A. Cobb, and Deputy Sheriffs Travis Bennett and Tommy Raimond. Cobb testified that defendant was arrested on the evening of October 30,1975 at which time he was advised of his Miranda rights. On the afternoon of the following day, defendant was taken to an interrogation room at the sheriff’s office measuring ten feet by ten feet where he was again informed of his Miranda rights by Deputy Bennett in the presence of Chief Cobb and Deputy Rai-mond and executed a waiver of rights form prior to questioning. Cobb testified that, although defendant’s demeanor indicated that he had been drinking, he appeared to understand what he was saying. Defendant agreed to make a statement and indicated that he did not wish to exercise his right to counsel. Cobb further testified that defendant was not threatened or promised leniency in an attempt to coerce him to confess. Moreover, in view of the fact that Tyler, defendant’s co-participant in the offense, had not been questioned by police officials prior to defendant’s interrogation, Cobb denied that he had advised defendant that Tyler had implicated him in the crime. At the conclusion of approximately twenty-five minutes of questioning, defendant confessed to the crime. The testimony of Deputies Bennett and Raimond corroborated that of Chief Cobb in that they likewise denied that defendant had been coerced to confess or that he was intoxicated to such a degree that he was not aware of what he was saying.

To rebut the state’s showing of the volun-tariness of the confession, defendant testified that, although he initially refused to make a statement, he was induced to confess his involvement in the offense by the deputies’ remarks to “make it light" on himself and by information relayed to him by Cobb that Tyler had related defendant’s participation in the incident. Defendant admitted that he was advised of his right to counsel, that he refused such assistance, and that the confession was not the product of fear, duress, intimidation, menaces, threats, inducements or promises. Defendant did not testify as to his intoxication- at the time of the confession. On the contrary, during cross-examination, he admitted that he had been in custody for a period of ten hours prior to entering his confession, during which period he had nothing to drink.

Before a confession may be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451; La.Code Crim.P. art. 703(C). It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966). A confession need not be the spontaneous act of the accused and may be obtained by means of questions and answers. La.R.S. 15:453; State v. Adams, 347 So.2d 195 (La. 1977); State v. Ross, 343 So.2d 722 (La. 1977); State v. Cotton, 341 So.2d 355 (La. 1976). Where the free and voluntary nature of a confession is challenged on the ground that the defendant was intoxicated at the time of interrogation, the confession will be rendered inadmissible only when the intoxication is of such a degree as to negate defendant’s comprehension and to render him unconscious of what he is saying. Whether intoxication exists and is of a degree sufficient to vitiate the voluntariness of the confession are questions of fact. State v. Adams, supra; State v. Green, 343 So.2d 149 (La.1977); State v. Manuel, 253 La. 195, 217 So.2d 369 (1968). The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of the testimony relating to the voluntariness of a confession will not be overturned unless they are not supported by the evidence. State v. Adams, supra; State v. Ross, supra; State v. Demourelle, 332 So.2d 752 (La.1976); State v. Sims, 310 So.2d 587 (La. 1975).

In the instant case, defendant’s allegation that he was induced to confess because of the misrepresentation by Chief Cobb that his co-participant had implicated him in the offense was uncorroborated and was specifically denied by Cobb. By defendant’s own admission, the confession was made freely and voluntarily after his Miranda rights were recited to him and after he had rejected the assistance of counsel. Furthermore, in spite of the fact that defendant’s demeanor indicated that he had been drinking prior to interrogation, the officers testified that he understood the questions asked of him and was aware of his responses. Defendant’s testimony at the suppression hearing exhibited his total recall of the interrogation thereby negating any allegation that his intoxication rendered him unconscious of his actions while under interrogation. In ruling the confession free and voluntary, the trial judge noted that the length of time between defendant’s arrest and his confession did not support the “possible theory that any drinking might have affected him” in the giving of his statement.

After a review of the record, we are convinced, as was the trial judge, that the state satisfied its burden of affirmatively proving that the confession was freely and voluntarily made after defendant had been advised of his Miranda rights.

In brief to this court, defendant further contends that the trial judge erred in admitting the confession in evidence in that it was not introduced in its entirety as required by La.R.S. 15:450. This basis of challenge to the admissibility of the confession is predicated on the testimony of Chief Cobb wherein it was disclosed that defendant had made a previous written statement after which he had changed his mind. The witness did not know the whereabouts of this statement. No showing was made nor is it alleged that the prior statement formed a part of the confession introduced in evidence. We are satisfied that the confession admitted at trial constituted defendant’s whole statement.

In sum, the trial judge did not err in admitting the confession in evidence.

Assignment of Error No. 3 is without merit.

The record discloses that defendant was sentenced on the same day as his motions for a new trial and in arrest of judgment were denied and that he did not waive the required twenty-four-hour delay. Thus, defendant’s sentence was illegally imposed. La.Code Crim.P. art. 873; State v. Young, 337 So.2d 1196 (La.1976); State v. Navarre, 302 So.2d 273 (La.1974) Even though defendant did not object to this error at the time of sentencing or urge it on appeal, the error shall be considered by this court since it is an error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. La.Code Crim.P. art. 920(2); State v. Young, supra; State v. Quinn, 288 So.2d 605 (La.1974). Hence, the sentence must be vacated and the case remanded to the trial court with instructions that defendant be sentenced in accordance with law.

DECREE

For the reasons assigned, the conviction is affirmed but the sentence imposed is vacated and set aside, and the ease is remanded to the Eleventh Judicial District Court, Parish of Sabine, with instructions to the trial judge to sentence defendant in accordance with law.

      . Minutes reflect that the court granted a severance of the information; Earl Hutto was tried separately.

      . This fact was not revealed during the suppression hearing but rather was elicited for the first time on cross-examination in the presence of the jury.


text:
    STATE of Louisiana v. Willard CARLOCK, Sr.
    No. 60492.
    Supreme Court of Louisiana.
    Sept. 1, 1977.
   In re: Willard Carlock, Sr. applying for writs of certiorari, prohibition, mandamus and for a stay order.

Writ denied. Article 682 of the Code of Criminal Procedure by clear implication invests in the Attorney General the authority of a district attorney in the prosecution when the trial judge notifies him of the recusal of the district attorney. Moreover, in the absence of a specific prohibition to that effect, an attorney employed under authority of article 63 of the Code of Criminal Procedure may continue his private practice.

CALOGERO, J., is of the opinion the writ should be granted. C.Cr.Pr. art. 682 does not by implication or otherwise invest in the attorney general authority of a district attorney in the prosecution when the trial judge notifies him of recusal of a district attorney. In such event Art. 682 simply imposes upon the attorney general the duty to appoint a district attorney of another district or a member of his staff to act in the place of a recused district attorney. Even in this latter event it is the substitute, the attorney general’s staff member, who has the power of the recused district attorney with reference to the case, not the attorney general. In this case the attorney whose recusal is sought is not a member of the attorney general’s staff, but rather by the attorney general’s own designation, simply special counsel. I believe the motion to recuse has merit.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. Christopher McALLISTER.
    No. 60530.
    Supreme Court of Louisiana.
    Aug. 30, 1977.
   In re: Christopher A. McAllister applying for supervisory writs.

Writ denied in part, granted in part: As to Assignment No. 2 (relating to motion to quash); denied — adequate remedy by appeal in the event of conviction. However, Assignment No. 1 (relating to motion to set bond) has merit. Trial judge is ordered to fix bail in accordance with law.

SUMMERS, J.,

dissents from the reversal of the ruling of the trial judge denying bail in this case involving a charge of first degree murder.


text:
    Rose Pareti, widow of Morris L. TAQUINO v. W. F. MINCHEN and E. S. Morrison.
    No. 60076.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: Rose Pareti, widow of Morris L. Taquino applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 345 So.2d 570.

Writ denied. Judgment of the court of appeal is correct.


text:
    STATE of Louisiana ex rel. William SAM v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 60075.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: William Sam applying for writs of habeas corpus, certiorari, prohibition and mandamus.

Writ denied. The record on appeal does not disclose any basis for the petitioner’s allegation.


text:
    John W. CHENEVERT v. Louisiana STATE DEPARTMENT OF HIGHWAYS.
    No. 60073.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re John W. Chenevert applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 345 So.2d 960.

Writ denied. No error of law.


text:
    WIGWAM, INC. v. William F. JUDICE et al.
    No. 60070.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: Wigwam, Inc. applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 345 So.2d 564.

Writ denied. The result is correct.


text:
    STATE ex rel. Nelson AVERY v. Matthew S. BRANIFF, Judge, Criminal District Court, Orleans Parish.
    No. 60067.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: Nelson Avery applying for writ of mandamus.

Writ denied. The matter is moot.


text:
    STATE of Louisiana ex rel. William JACKSON v. Frank J. SHEA, Judge, Criminal District Court, Parish of Orleans.
    No. 60060.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: William Jackson, applying for writ of mandamus.

Application denied: Since the trial judge denied the petitioners application on July 12, 1977, the petition for mandamus is moot.


text:
    STATE of Louisiana ex rel. Eugene WIGGINS v. Hon. Edwin A. LOMBARD, Clerk of Court, Criminal District Court.
    No. 59967.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: Eugene Wiggins, applying for writ of mandamus.

Writ denied: On the allegations made, the trial court correctly denied the relief sought. The applicant’s attorney has already received a transcript for purposes of appellate review, see our docket No. 57,951 (337 So.2d 1172), affirming the conviction, and no showing is made of its need for any other purpose.