author: SUMMERS, Chief Justice.

text:
    STATE of Louisiana v. Walter CHAPMAN.
    No. 62694.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Rehearing Denied March 5, 1979.

      James David McNeill, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Lance M. Africk, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
   SUMMERS, Chief Justice.

Defendant Walter Chapman was duly charged by bill of information with two counts of armed robbery. The first count charged that on June 29, 1977, while armed with a pistol, he robbed Paul Doucet of $1,716. The second count charged that on June 25,1977, while armed with a pistol, he robbed Melvin Emilien of $164.95.

After trial by jury on September 8, 1977 defendant was found guilty on both counts. He was thereafter charged as a multiple offender on the basis of a conviction of receiving stolen things on April 26, 1977, and the September 8, 1977 conviction on two counts of armed robbery. However, he was found guilty of being a second offender on the basis of his April 26, 1977 conviction of receiving stolen things and his September 8, 1977 conviction of the armed robbery of Paul Doucet. On this finding he was sentenced to serve 99 years as a multiple offender. On the second conviction, the robbery of Melvin Emelien, he was sentenced to serve an additional 99 years at hard labor.

On this appeal six assignments of error are urged.

Assignment 1: Melvin Emelien was employed at a Tenneco service station in New Orleans. On the night of June 25, 1977,— shortly before closing time, defendant entered the store with a pistol and robbed him. Defendant wore no mask or disguise and was plainly visible in a well-lighted room. The robbery lasted about twenty-five minutes. Emelien had seen defendant at the service station four times before.

Thereafter on July 22, 1977 Officer Cu-róle of the New Orleans police came to Emelien’s residence and exhibited a photographic lineup from which Emelien identified a photograph of defendant as the person who robbed him. The officer did not suggest to Emelien whose photograph he should identify. During the trial on September 8,1977 Emelien positively identified the defendant as the person who robbed him.

It is the defense contention that the photographic identification was made after indictment and for that reason defendant’s counsel should have been present. Although defendant had been arrested prior to this identification for the robbery of Paul Doucet, he had neither been arrested nor indicted for the robbery of Emelien. There was therefore no right to counsel at this pre-indictment photographic lineup involving the robbery of Emelien. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); State v. Johnson, 306 So.2d 724 (La.1975). In addition, the Sixth Amendment does not require an attorney to be present at a proceeding when witnesses are shown a photographic spread, including a photograph of the defendant. Anderson v. Maggio, 555 F.2d 447 (5th Cir. 1977). And there is no right to have counsel present during photographic identification procedures. United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973); State v. Williams, 343 So.2d 1026 (La.1977). Finally, there was an adequate independent basis for the in-eourt identification. State v. Allen, 251 La. 237, 203 So.2d 705 (1967).

This assignment is without merit.

Assignment 2: It is contended by the defense that the trial judge erred in allowing the hearsay testimony of Officer Augustine, a witness for the State, when Augustine testified that Paul Doucet told him at the police station, “That guy robbed me.”, referring to defendant. No objection was made by the defense at the time.

This Court has repeatedly recognized the efficacy of Article 841 of the Code of Criminal Procedure and the importance of adhering to its caveat that “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” This assignment is therefore without merit.

Assignment 3: An envelope, identified as S-4, containing $56 was admitted as evidence as part of the property taken from the victim Doucet. Doucet had testified that he had been robbed of “almost sixty dollars.” The defense objected to the introduction of the money and assigns as error the overruling of his objection. It is the defense contention that the money was not, and could not be, identified and should not have been admitted in evidence as the money taken from the victim.

In State v. Holmes, 354 So.2d 1282 (La. 1977), a defendant was accused of an armed robbery in which only twenty-dollar bills were taken. The prosecution sought to introduce money, not twenty-dollar bills, found on the person of the defendant when arrested. This Court held that although the time lapse and the different denominations of the money found on the defendant made it unlikely that it was the exact same money that had been taken in the robbery, the money was, nevertheless, still admissible. As observed in Holmes “[a]s tenuous as the relevancy may be it is not illogical.” The difference in denomination and time lapse was held to go to the weight of the evidence, not to its admissibility.

In the present case defendant was apprehended shortly after he robbed Doucet, and there is substance to the State’s claim of relevancy because the $56 was “almost” $60.

This assignment is without merit.

Assignment 4: The defense contends that the trial judge was in error in his selection of the first count of the two-count bill of information as the second offense in the multiple offender conviction.

The Habitual Offender Law, La.Rev.Stat. 15:529.1, provides no guidelines for a judge in a situation such as this. At sentencing the State requested that both counts of the two-count indictment be considered and that defendant be adjudged a triple offender. The trial judge declined to do so. Instead, he used only the first count. Defendant was therefore convicted as a second offender and sentenced as such.

In State v. Schamburge, 344 So.2d 997 (La.1977), and in State ex rel. James Henry Jackson v. Henderson, 283 So.2d 210 (La. 1973), this Court held that convictions on more than one count entered on the same day should be treated as one conviction for applying the multiple offender statute. Therefore, the trial court properly considered the September 8, 1977 two-count conviction as one count.

Assignments 5 and 6: Although conceding that Article 493 of the Code of Criminal Procedure permits the joinder of two or more offenses of “similar character,” and that Article 495 requires that any objection to such joinder must be raised by a motion to quash in advance of trial, defense counsel submits that the court should review this record and find that the offenses in the instant case are not legitimate “other crimes” under the Prieur doctrine and should have been severed on motion of the State prior to trial.

The rule that misjoinder of offenses must be raised by motion to quash prior to trial is statutory. La. Code Crim.Pro. art. 495. No claim of unconstitutionality or exception to the rule is urged. We therefore adhere to the rule’s mandate as we have before. State v. Mallett, 357 So.2d 1105 (La.1978); State v. McZeal, 352 So.2d 592 (La.1977).

For the reasons assigned, the convictions and sentences are affirmed.

DENNIS, J., concurs.

       Chief Judge L. Julian Samuel participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.


source: Caselaw Access Project

author:
SUMMERS, Chief Justice.
     DENNIS, Justice,

license: Public Domain

text:
    ASSOCIATED EXECUTIVE CONTROL, INC. v. BANKERS UNION LIFE INSURANCE COMPANY.
    No. 62885.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Rehearing Denied March 5, 1979.
    Harry M. Zimmerman, Jr., Stone, Pig-man, Walther, Wittmann & Hutchinson, New Orleans, for defendant-respondent.
    Norris S. L. Williams, Chaffe, McCall, Phillips, Toler & Sarpy, Harry McCall, Jr., New Orleans, for plaintiff-appellant.
   SUMMERS, Chief Justice.

According to the petition filed by Associated Executive Control, Inc., on January 30, 1974, Bankers Union Life Insurance Company entered into a contract with Associated to pay Associated a $50,000 finding and servicing fee in connection with the sale of the stock of Guaranty Life Insurance Company, a company owned by Bankers. A copy of the contract is attached to the petition and made a part thereof. The contract is in the form of a letter from Bankers to Associated dated January 30, 1974 and provides as follows:

“This letter agreement shall memorialize a certain agreement which was made in Denver, Colorado today January 30, 1974] between you [Associated] this Company [Bankers] and Mr. F. D. V. deLa-Barre, who I understand to be Secretary-Treasurer of your company and fully authorized to act on your behalf in making this agreement.
“We agree to pay you a consulting, finding and servicing fee totaling $50,000 in the event that a sale is consummated for all of the stock of Security Guaranty Life Insurance Company which is owned by Bankers Union Life Insurance Company as of this date, in the event that you are a moving force in the consummation of a transaction which is acceptable in the full and absolute discretion and approval of Bankers Union Life Insurance Company. It is expressly understood that there are no exclusive rights granted by this letter for you to seek out and find a buyer, and Bankers Union Life Insurance Company shall be totally free to seek out a buyer independently of any efforts by you.
“In the event that such sale is consummated, which shall mean that the matter has been closed and all other aspects of the same shall be completed to the satisfaction of the company, then one month thereafter the aforementioned fee shall be due and payable to you.
“It is understood that included in the fee shall be all monies claimable by the law offices of F. D. V. deLaBarre to this Company from the date that this Company acquired the stock of Security Guaranty Life Insurance Company to the date of this agreement, including all services relating to a piece of property generally described as the Monroe Golf Course, Monroe, Louisiana, which were performed by or through the law offices of F. D. V. deLaBarre, and expenses incurred, directly or indirectly, and therefore, you will protect, indemnify and hold harmless this Company from any claims by the said F. D. V. deLaBarre, or his successors or assigns, which may concern the same property in Monroe, Louisiana, or other services done by him for the benefit of this Company.”

The petition further alleges that Associated negotiated a sale for Bankers with Ronald E. Smith and enlisted J. Darrel Jordan of Olaques, Jordan and Company to assist in consummating the transaction.

Further, it is alleged that on February 5, 1975 Bankers forwarded a copy of the proposed purchase agreement to Jordan whereby Smith would acquire the stock of Security. The agreement provided that the purchaser would pay $10,000 as partial payment of the price pending closing of the sale transaction within 45 days of the signing of the agreement to sell. Unless seller was “unable or refused” to close the transaction, the $10,000 would be forfeited to seller if the sale was not consummated within 45 days. The petition further alleges that on April 14, 1975 Jordan delivered the $10,000 to Bankers in Denver, and sought to obtain Bankers’ signature to the purchase agreement, subject to slight modifications with respect to the stock being purchased. Bankers agreed to make these revisions and to send the final purchase agreement to New Orleans for Smith’s signature.

However, on April 24, 1975, it is alleged, a Denver law firm forwarded a revised stock purchase agreement containing, among other revisions, this clause:

“Buyer further represents that he has not had any dealings with, nor has he been influenced by, the firm of Associates Executive Control, Inc., 1501 American Bank Building, New Orleans, Louisiana, or any of its agents, or F. D. V. deLa-Barre in connection with the transaction contemplated by this agreement. On the basis of such representation, seller agrees to pay any valid claim of Associates Executive Control, Inc. or F. D. V. deLa-Barre for a finder’s or brokerage fee, commission or other compensation on account of Seller’s dealings with such persons in connection with the transaction contemplated by this Agreement and to indemnify, defend and save Buyer harmless from any such claim.”

The petition alleges Smith would not, and in good faith could not, make this representation. Associated explained to Bankers, but Bankers refused to delete the clause and aborted the sale.

Allegations of the petition also set forth that, by virtue of the agreement between Associated and Bankers and the complete performance by Associated, Bankers should be held to pay the $50,000 contracted for. Bankers is alleged to have arbitrarily, capriciously and unilaterally declined to consummate the sale with the willing buyer provided by Associated, although it had initially accepted the terms of the purchase agreement.

In the event the agreement between Associated and Bankers was held to be null because of a potestative condition, Associated alternatively alleges that it should recover $56,750.45 on the basis of quasi-contractual quantum meruit or under the civil law concept of culpa in contrahendo.

Bankers filed an exception of prematurity and no cause of action. The exception of prematurity is based upon the allegation that the contract between Associated and Bankers is based upon a suspensive condition, which has not been met and suit on the contract was therefore premature. For the same reasons, the exception of no cause of action alleges the petition states no cause of action and hence there can be no recovery in quasi contract or under a theory of culpa in contrahendo. The exceptions were maintained.

On appeal to the Fourth Circuit the ruling of the trial judge was affirmed. The Court of Appeal held that the terms of the agreement between Associated and Bankers left little doubt regarding the intent of the parties, providing that Associated would be entitled to the $50,000 fee if it were a moving force in the “consummation” of the stock sale, subject to acceptance in the absolute discretion of Bankers. Payment of the fee, the court decided, was subject to a suspensive condition, and the obligation could not be enforced until the condition occurred. The court relied upon Articles 2021 and 2043 of the Civil Code and the decision of this Court in Sugar Field Oil v. Carter, 207 La. 453, 21 So.2d 495 (1945) and Jordy v. Salmon Brick & Lumber Co., 121 La. 457, 46 So. 572 (1908).

Certiorari was granted on Associated’s application. 363 So.2d 72.

For the purpose of Bankers exceptions the allegations of Associated’s petition must be accepted as true. If any part of the petition states a cause of action, it must be maintained to that extent. La.Code Civ. Pro. art. 927(4); Elliott v. Dupuy, 242 La. 173, 135 So.2d 54 (1961). These allegations must be read in connection with the letter agreement, the initial proposed agreement to sell and the revised agreement to sell, all of which are attached to and made a part of Associated’s petition as exhibits. Jennings v. Prejean, 216 La. 645, 44 So.2d 325 (1950); Hays v. Hays, 169 La. 588, 125 So. 627 (1930).

In the letter agreement it is stated that Bankers would pay Associated a consulting, finding and servicing fee of $50,000 in the event a sale was consummated of the stock of Security Guaranty Life Insurance Company. According to the allegations of the petition, Associated did find a purchaser and Bankers did agree to sell; the only condition of the proposed sale which prevented its consummation was a provision that would compel the buyer to represent, contrary to the true facts, that he had no deals with, nor had been influenced by, Associated. This the prospective purchaser would not do, and the inference from the pleading is that the quoted requirement of Bankers was the sole reason for aborting the stock sale. Bankers’ belated requirement that the purchaser disclaim that Associated had any dealing with or that it influenced the prospective purchaser was in fact a repudiation of Bankers’ obligations under the letter agreement.

And, while Bankers did make its obligation to Associated dependent upon a sale transaction “which is acceptable in the full and absolute discretion and approval of Bankers”, there is no intimation in this letter agreement, the initial agreement to sell, or the revised agreement to sell that the sale to which the prospective purchaser and Bankers agreed did not meet Bankers’ approval. But, according to the allegations of the petition and the exhibits attached, Bankers insisted that the purchaser deny Associated’s influence in bringing about the sale agreement. This would have the effect of denying Associated’s entitlement to the $50,000 fee stipulated in the letter agreement. If it had not been for this unforeseen proviso in the sale, imposed by Bankers at the last minute, the inference to be gained from the record is that the stock sale would have been “consummated”. These are the facts as they are understood.

While the letter agreement between Bankers and Associated was indeed subject to conditions, as the Court of Appeal held, none of those conditions prescribed, or implied, that Bankers could demand that the purchaser represent that Associated did not influence the stock sale, when in fact Associated did find the purchaser and did negotiate the sale. There is no doubt that allegations of the petition are emphatic that Associated “sought and negotiated a sale agreement on behalf of [Bankers].”

Nor did the condition that the sale transaction be “acceptable in the full and absolute discretion and approval of Bankers” contemplate under any interpretation that the purchaser agree that Associated had not earned its fee. It is correct to say that the letter agreement did not set forth the price of the sale or its terms and conditions. In this respect Associated’s right to recover was dependent upon the discretion of Bankers. But these unstated conditions contemplated such things as the happening of future events, the price, time, conditions of delivery, etc., agreements to be reached preliminary to the consummation of a sale.

It would be unusual to say in the letter agreement of January 30, 1974 that Bankers agree to pay Associated a fee for finding a purchaser when the sale was consummated and to later construe that agreement to mean that one of the conditions of that sale could be that the purchaser must deny, contrary to the actual facts, that Associated had any part in bringing about the sale. It is a conspicuous and intolerable abuse of the discretion contemplated in the agreement on Bankers’ part to impose such a requirement. It is saying that Bankers could agree to pay Associated a commission when certain conditions are met, but that one of the conditions would be that Bankers would not have to pay Associated the commission when those conditions are met.

Notwithstanding the provision of the letter agreement making payment of the fee dependent upon “a transaction which is acceptable in the full and absolute discretion and approval of Bankers” that discretion cannot and does not contemplate that the stock sale can be aborted by a requirement that Bankers not pay Associated’s fee when all other conditions have been fulfilled. The law does not sanction such a gross abuse of discretion. “The obligation of contracts extends not only to what is expressly stipulated, but also to everything that, by law, equity or custom, is considered as incidental to the particular contract, or necessary to carry it into effect.” La.Civil Code art. 1903. It is the opinion of the Court that in this respect Associated has alleged a cause of action for violation by Bankers of the letter agreement to pay $50,000. La. Civil Code art. 1931, 1957-59.

For the reasons assigned, the exception of no cause of action is denied and the case is remanded to the trial court to be proceeded with according to law, Bankers to pay all costs incurred to date.

DENNIS, J., concurs and assigns reasons.

MARCUS, J., dissents, agreeing with the Court of Appeal.

DENNIS, Justice,

concurring.

I respectfully concur, being of the opinion that the petition alleged a cause of action in the contract since under the facts alleged the defendant refused to go through with a “transaction which is acceptable” not because of any objection to the transaction but merely to avoid paying plaintiff’s fee. Alternatively, it has alleged a cause of action in culpa in contrahendo.

       Chief Judge William A. Culpepper participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. George Herbert ENGLISH, Appellant.
    No. 62823.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Rehearing Denied March 5, 1979.

      Kenneth Michael Wright, Rester, Van Norman & Wright, Max M. Morris, Lake Charles, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Adam L. Ortego, Jr., Asst. Dist. Atty., for appellee.
   TATE, Justice.

The defendant English was indicted for first degree murder. La. R.S. 14:30 (1976). He is charged with the intentional killing of Roland Lampris on September 5, 1977. He pleaded not guilty and not guilty by reason of insanity. After trial by jury, he was found guilty as charged. After the post-verdict sentencing hearing, La.C.Cr.P. arts. 905.1-905.9 (1976), the jury unanimously recommended that the death penalty be imposed. The district court accordingly sentenced the defendant to death.

English now appeals his conviction, urging fifteen assignments of error. Some of these relate to the guilt-determination portion of the trial, and some relate to the sentencing portion. Since we find reversible merit in some of these latter assignments, requiring us to set aside the death sentence, we will discuss the latter first.

I. THE SENTENCING HEARING ASSIGNMENTS OF ERROR

The defendant’s trial was conducted in accordance with the provisions of La.C.Cr.P. arts. 905.1-905.9 (1976), which provide for a bifurcated trial in capital cases. Initially, the jury is required only to make a determination as to the guilt or innocence of the defendant. If a verdict of guilty is returned, however, the same jury is required, during a second or sentencing phase of the trial, to recommend whether the defendant should be put to death or given a sentence of life imprisonment, without benefit of parole, probation, or suspension of sentence. This determination is to be made based upon a consideration by the jury of various statutory aggravating and mitigating circumstances, which are set forth in La.C. Cr.P. arts. 905.4 and 905.5.

At the conclusion of the sentencing hearing, the jury returned a unanimous recommendation that the defendant be sentenced to death. It based this recommendation upon its finding that the state had proven beyond a reasonable doubt (see La.C.Cr.P. art. 905.3) the existence of the following aggravating circumstances: (1) the offender was engaged in the perpetration of aggravated kidnapping; (2) the offender was previously convicted of an unrelated murder; (3) the offender knowingly created a risk of death or great bodily harm to more than one person; and (4) the offense was committed in an especially heinous, atrocious and cruel manner. See La.C.Cr.P. art. 905.4(a), (c), (d), and (g), respectively.

The post-verdict sentencing hearing shall be conducted in accordance with the rules of evidence and trial procedure applicable to the trial on the merits. Thus, for instance, hearsay evidence is inadmissible in the same manner that it would be at the trial. Likewise, error in the instructions of the trial court to the sentencing jury requires reversal of the sentence, if prejudicial to the convicted defendant in the jury’s arriving at its sentencing recommendation.

In the present instance, the admission over defendant’s objection of hearsay evidence (Assignment 13) was prejudicially erroneous and requires reversal of the sentence of death recommended by the jury and imposed by the trial court. We likewise note the trial court’s arguably erroneous refusal to grant a special instruction as to a mitigating circumstance (Assignment 14).

Assignment 18

One of the aggravating circumstances successfully relied upon by the state in arguing for the death penalty is that English, the “offender was previously convicted of an unrelated murder,” La.C.Cr.P. art. 905.-4(c) (1976). While a soldier in Vietnam, in 1969 the defendant English was convicted before a court martial of the killing of a Vietnamese civilian and sentenced to twenty years imprisonment.

To prove the prior conviction, the state did not rely upon duly-authenticated records prepared by the Army. Instead, over defendant’s objection the state proved the fact of this prior conviction by the testimony of the accused’s parole officer, who testified that the federal parole records in his possession showed that the defendant had been convicted of murder in 1969 before a court of military justice.

The witness admitted that his information was merely based upon documents (of unknown nature) in the file concerning the accused, which had not been prepared by him and of which he had no personal knowledge concerning their preparation or contents.

The defendant vigorously and repeatedly objected to the proof of this prior conviction by the hearsay evidence of this officer.

Hearsay evidence is testimony in court, or written evidence, of an out-of-court statement offered to show the truth of the matter asserted therein and resting for its value upon the credibility of the out-of-court asserter. State v. Martin, 356 So.2d 1370 (La.1978); McCormick on Evidence, Section 246 (2d ed. 1972); Pugh, Louisiana Evidence Law, 387 et seq. (1974). The traditional exclusion of hearsay evidence is based upon considerations of unreliability and of potential unfairness to the accused to permit the introduction of out-of-court statements which cannot be tested by cross-examination of the out-of-court declarant. State v. Hudson, 361 So.2d 858 (La.1978); State v. Ford, 336 So.2d 817 (La.1976). See also Pugh, Louisiana Evidence Law 388-432 (1974).

In Louisiana criminal trials, hearsay evidence is inadmissible except under certain recognized exceptions. La. R.S. 15:434. In brief in this court, the state points out no exception permitting admissibility of this statement of a witness, based upon his examination of office records of unshown nature, to prove that the accused had been convicted of a murder in Vietnam in 1969. Even if the parole office record itself had tendered as proof of the fact noted in its contents, these records do not fall within the official records exception, permitting the officer entrusted with the duty to make and retain a record of the fact to certify its existence as reflected by his records, based upon his first-hand knowledge of such a record. See State v. Nicholas, 359 So.2d 965, esp. 969 (La.1978).

The hearsay proof of the prior conviction for murder was thus erroneously admitted over objection. This evidence was inadmissible under the rules of evidence applicable to .sentencing hearings, and it was the chief evidence of this prior conviction. Even though we (and the jury) might feel to be reliable a federal law enforcement officer’s testimony that he had received information that the defendant had been convicted of an earlier killing, under the law óf evidence this hearsay testimony is no more admissible to prove the earlier conviction than would be the equally hearsay report of a stranger or a neighbor that he had heard that the accused had been convicted of an earlier crime.

The improper admission into evidence of this hearsay evidence of the prior conviction was obviously prejudicial to the defendant in the proof of this aggravating circumstance which, if proved, entitled the jury to recommend the death penalty.

The prejudice is especially great under present circumstances: Under our independent review of the excessiveness of the death sentence directed by statute, La.C. Cr.P. art. 905.9 (1976) and our court rule adopted in accordance therewith, Rule 28 (Rule 905.9.1) (1977), it is unlikely or at least arguable that we would have found that any other aggravating circumstance was proved. See Appendix attached to this opinion. The death penalty may not be imposed unless at least one statutory aggravating circumstance is found to exist beyond a reasonable doubt. La.C.Cr.P. art. 905.3 (1976).

Assignment 14

In the sentencing portion of the hearings, the defendant was denied certain special charges requested. La.C.Cr.P. art. 807 provides: “ * * * A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.”

In the general charge in the innocence-guilt trial on the merits, the trial court had instructed the jury that “an insane person is one who is incapable of distinguishing between right and wrong.” (See La. R.S. 14:14, providing this to be the test of insanity for exemption from criminal responsibility for the act, i. e., for purposes of the plea of not guilty by reason of insanity.)

After the sentencing evidence was taken, the defendant timely requested several special charges.

A mitigating circumstance provided by La.C.Cr.P. art. 905.5(e) is: “At the time of the offense the capacity of the offender to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired ás a, result of mental disease of defect or intoxication.” In explanation of this mitigating circumstance, the defendant requested Special Charge 7.

Pertinent for present purposes, this special charge requested that the jury be instructed that “a mental defect would be a defect or deficiency in the emotional, psychic, or intellectual function of a person which rendered the mind deficient for the purpose for which the mind is to be used. Mental disease means a person is suffering from an illness which lessens his capacity to use his customary self-control, judgment, and discretion in the conduct of his affairs and social relations. ... A mental disease or defect is not to be confused with insanity, as to which you have been previously instructed.”

The trial judge rejected this special instruction, apparently accepting the state’s contention that the test of legal insanity (the right-wrong test, La. R.S. 14:14) for innocence or guilt also governed the test of the mitigating circumstance relating to the offender’s mental defect or disease, La.C. Cr.P. art. 905.5(e).

At the sentencing hearing, only three witnesses testified: the federal probation officer, and the two psychiatrists who had served on the sanity commission which found the accused legally sane under the right-wrong test. These doctors testified that, while the defendant had been intermittently under psychiatric treatment since a child of nine, he was legally sane and appreciated the consequences of his acts and thus knew right from wrong. They testified that he was suffering from a severe psychiatric illness (known as psychopathy or an anti-social personality) characterized by an emotional flatness and lack of conscience.

In his closing argument, the district attorney relied heavily upon these doctor’s testimony that the defendant “knew right from wrong,” and adverted to his arguments in the earlier guilt-innocence stage of the trial that mental defects and mental illnesses do not affect the criminal responsibility of an individual.

Under the circumstances shown, the defendant was clearly entitled to a special instruction of the nature requested.

Without it, the jury had been instructed by the court, without correction at the sentencing hearing, that the test of the defendant’s criminal responsibility was solely provided by the right-wrong test. While this is a correct statement of law insofar as the determination of whether the accused is not guilty by reason of (legal) insanity, once the accused’s guilt has been established by the verdict at the merit-trial another dimension of his mental condition comes into play as affecting whether the jury shall recommend that he be put to death.

The legislature specifically provided that, in the sentencing hearing, the jury may consider as a mitigating circumstance that “At the time of the offense the capacity of the offender to appreciate the criminality of his conduct or to conform his conduct to the requirements of law were impaired as a result of a mental disease or defect or intoxication.” La.C.Cr.P. art. 905.5(e). By permitting the jury to consider the mental condition of the offender as a mitigating circumstance — even though he was guilty, because his mental condition did not meet the right-wrong requirements of legal insanity, La. R.S. 14:14 — , it is obvious to us that the legislature intended to permit the jury to take into consideration, in deciding not to impose the death penalty, an abnormal mental condition short of legal insanity. It may be a mental disease or defect which diminishes the offender’s capacity for self-control and for forming the specific and deliberate intention to cause the killing charged, or it might be such other mental disease or defect affecting the act as the jury might feel was of a nature that indicated that the ultimate penalty of death should not be imposed.

The effect of the trial court’s denial of the special charge, under the circumstances shown, was to indicate to the jury that the test of the mitigating circumstance was the same as the test of legal insanity, and to deny the jury the opportunity intended for it by the legislature to consider the defendant’s psychiatric illness as a mitigating circumstance by reason of which it might decide not to recommend the death penalty. (We do not imply, however, that the refusal of a properly instructed jury to consider the present accused’s mental illness a mitigating circumstance would necessarily be deemed erroneous on review.)

We omitted from discussion portions of the requested charge that may or may not have been wholly correct and pertinent. Since it is necessary to reverse the death sentence because of the hearsay error (Assignment 13), we do not reach the issue of whether these omitted portions would have justified, if slightly incorrect, the trial court in totally rejecting this requested special charge on this essential issue of the sentencing hearing in this capital case.

Appropriate Decree after Reversal of Death Sentence

The murder occurred on September 5-6, 1977. At that time, the law applicable to sentencing hearings was provided by La.C. Cr.P. arts. 905.1 to 905.9, as enacted by Act 694 of 1976. The provisions of this act relating to the jury’s sentencing recommendation were:

“[T]he sentencing hearing shall be conducted before the same jury that determined the issue of guilt. The order of sequestration shall remain in effect until the completion of the sentencing hearing.” La.C.Cr.P. art. 905.1. (Italics ours.) “The court shall sentence the defendant in accordance with the recommendation of the jury. If the jury is unable to unanimously agree on a recommendation, the court shall impose a sentence of life imprisonment without benefit of probation, parole or suspension of sentence.” La.C.Cr.P. art. 905.8.

As thus originally enacted, the death penalty could not be imposed unless unanimously recommended by the same jury that determined the issue of guilt. No provision was made for the appropriate decree on appeal if reversible error was found in the sentencing hearing, although not in the guilt-trial itself.

Since the same jury that decides guilt must (under the statute) be the jury to recommend the death penalty, defense counsel argues that therefore, upon finding reversible error in the sentencing hearing, the appellate court must set aside not only the sentence itself but also the conviction. A new trial is required, the defendant argues, in order that a guilt deciding jury (alone entrusted by the statute with the power to recommend death) be empaneled which is empowered to recommend the death penalty.

However, the 1976 statute does not require that the conviction be set aside if there is reversible error in the sentencing hearing. It does not specifically regulate this situation. Nevertheless, it does provide that, if the sentencing jury is unable to agree unanimously on death, then — instead of declaring a mistrial and setting aside the conviction too — the court shall impose a life sentence. La.C.Cr.P. art. 905.8.

In conjunction with the power of the appellate court to set aside the death sentence and impose a sentence of life imprisonment, La.C.Cr.P. art. 905.8, the most reasonable construction of the 1976 statute as a whole is that, upon finding reversible error in the sentencing hearing, the reviewing court should not reverse the conviction but only the sentence. Accordingly, upon such limited reversal, the reviewing court should remand the case in order that the trial court may resentence the convicted defendant to life imprisonment without benefit of probation, parole, or suspension of sentence.

By Act 105 of 1977 (effective shortly after the crime, and thus not applicable to this trial, see footnote 6), the legislature amended La.C.Cr.P. art. 905.1 (1976) so as to authorize, for the first time, the empaneling of a new jury for the sentencing hearing, if a mistrial or new trial or reversal is required because of trial error in the sentencing hearing itself.

The enactment of this amendment, effective after the crime, poses an ex post facto issue:

May it be applied in the instant case, as to remand the case for a sentencing hearing which might result in a death recommendation? Or, instead, must we apply the law in effect at the time of the crime, which, as we have seen, requires a re-sentencing to life imprisonment instead of a remand for new sentencing hearing which may result in the imposition of the death penalty?

Any law enacted after the commission of an offense for which the accused is tried is prohibited as an ex post facto law, U.S. Constitution, Article 1, Section 9, Louisiana Constitution, Art. 1, Section 23 (1974), where it inflicts a more severe punishment than the law annexed to the crime at the time it was committed, or where it changes the law to the material disadvantage or detriment of the accused. State v. Curtis, 363 So.2d 1375 (La.1978) and federal and Louisiana decisions cited and summarized therein.

On the other hand, a procedural change, when it does not affect the accused’s substantive rights in the prosecution of a criminal offense, may nevertheless be applicable to the trial of the offense, even though the crime was committed before its effective date. State v. Carter, 362 So.2d 510 (La. 1978); cf., State v. Martin, 351 So.2d 92 (La.1977).

The 1977 amendment, effective after the present crime, cannot be considered as a merely procedural change. Instead, its application to the present prosecution is constitutionally prohibited under ex post facto principles:

Before the change, if reversible error occurred in the sentencing hearing, the greatest penalty imposable upon the accused was life imprisonment. After the change, however, the death penalty might be imposed upon him, if upon the remand for a new sentencing hearing the new jury recommended such penalty. The constitutional prohibitions against ex post facto laws prohibit the defendant’s exposure to this more severe punishment than would be applicable under the laws in effect at the time the crime was committed.

Accordingly, the death sentence must be reversed, and the case must be remanded for re-sentencing in accordance with the views above expressed.

II. THE MERIT-TRIAL ASSIGNMENTS OF ERROR

Twelve assignments were filed urging error which allegedly required reversal of the conviction.

Assignments 8 and 11

A most serious issue is presented by Assignments 3 and 11. These complain of the district court’s refusal to grant a continuance sought on the day (March 13) for which the trial had been re-fixed.

Earlier motions for continuances had been granted for trial dates previously set of October 24,1977, November 14,1977, and January 9, 1978. The basis for these continuances was to obtain information relating to the psychiatric care and diagnosis of the defendant English while he was in military custody Fort Leavenworth.

The last continuance was obtained on January 6,1978 (and the trial was thereafter re-fixed for March 13 the date it commenced), on the basis that the defendant’s counsel had finally located a Dr. Dupuis in New York, who had extensive knowledge (based on his observation and diagnosis of the defendant at Ft. Leavenworth) of the defendant’s mental condition and was of the opinion that the accused was insane. The trial court granted the continuance and signed a certificate for the issuance of an out-of-state subpoena to compel the appearance of Dr. Dupuis at the trial, see La.C. Cr.P. art. 741.

For some reason, the original subpoena was not prepared or sent. Therefore, on March 7 (six days before the trial), the defense counsel moved for and obtained a new order for service of the out-of-state subpoena, which was mailed to the Sheriff of New York County on that date by the Sheriff of Calcasieu Parish.

On the day (March 13) set for the trial, no return on the subpoena had been filed. The denial of the continuance presents a very serious issue of prejudicial error. By it, arguably the accused was deprived of an opportunity to present the testimony of a witness as to his defense of not guilty by reason of insanity (and possibly his only one), who was also an extremely material witness on his behalf as to mitigating circumstance (his mental disease or defect, La.C.Cr.P. art. 905.5(e)), by reason of which the jury might not recommend the death penalty at the sentencing hearing.

Ultimately, we conclude that the trial court’s denial of a continuance, under all the circumstances of this case, is not a reversible abuse of its discretion.

The accused had obtained three prior continuances to enable him to prepare this defense.

Considering also the necessity for a hearing in New York before a judge of that state for him also to determine that the subpoenaed witness to be material and necessary for the Louisiana proceeding, see McKinley’s Criminal Procedure Law of New York, Section 640.10, and even assuming that the second request of March 7 (six days before the trial date) represented due diligence, La.C.Cr.P. art. 709(3), we are unable to say that the defendant was sufficiently able to show that the New York physician could in fact be secured to testify at a date to which the trial would be continued, La.C.Cr.P. art. 709(3), taking into consideration also the multiple continuances previously given to the accused to secure evidence of the nature for which this last continuance also was sought. In finding the denial non-reversible, we also take into consideration that the chief actual prejudice caused by the unavailability of this physician’s testimony, as reflected by the record, would his failure to testify as to a mitigating mental condition at the sentencing hearing — and, since we have already set aside the death penalty recommendation that his testimony might have avoided, we cannot say that the accused suffered such substantial prejudice as to require reversal also of the conviction itself.

Other Assignments of Error

None of the other assignments present reversible error, nor do any of them involve legal issues not governed by clearly applicable legal principle. We have therefore noted our disposition of them in Appendix II attached to this opinion, which remains a public record of this court but which will not be published with this opinion.

Decree

For the reasons assigned, we affirm, the conviction, but we set aside the sentence and remand to the district court for re-sentencing of the defendant to life imprisonment without benefit of probation, parole, or suspension of sentence.

CONVICTION AFFIRMED; SENTENCE SET ASIDE, AND CASE REMANDED FOR RE-SENTENCING.

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

APPENDIX

In our appellate review of the sentence imposed, this court is required not only to determine whether reversible error occurred, but also to make an independent fact determination in every sentence of death to determine if it is excessive. La.C. Cr.P. art. 905.9.

Louisiana Supreme Court Rule 28 (Rule 905.9.1) Section 1, adopted pursuant to that code article, provides that in determining whether the sentence is excessive the court shall determine:

“(a) Whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors, and

“(b) whether the evidence supports the jury’s finding of a statutory aggravating circumstance, and

“(c) whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”

The record does not fairly support the jury’s finding that two other of the aggravating circumstances were present, namely, (1) that the murder was committed during the perpetration of an aggravated kidnapping, and (2) that the offense was committed in an especially heinous, atrocious and cruel manner. Further, it is at least arguable whether the other aggravating circumstance relied upon by the jury was proved beyond a reasonable doubt, namely (3) that the defendant knowingly created a great risk of great bodily harm to more than one person. We so conclude, because:

(1) The jury found beyond a reasonable doubt that the murder occurred in the course of an aggravated kidnapping. By abducting the victim and his companions, the defendant did commit simple kidnapping, “. . the [ijntentional and forcible seizing and carrying of any person from one place to another without his consent.” La.R.S. 14:45 (1966). Aggravated kidnapping, however, demands the additional proof of “the intent ... to force the victim, or some other person, to give up anything of apparent, present or prospective value ... in order to secure a release of the person under the offender’s actual or apparent control.” La.R.S. 14:44 (1950) (Italics supplied). Arguably, the extinction of a debt by killing the creditor is the gaining of something of value under the statute, but there is not evidence that the defendant intended to condition the release of the victim upon the payment of ransom, and it is that intent which distinguishes aggravated from simple kidnapping.

(2) The jury also found that the murder was committed in an especially heinous, atrocious or cruel manner. There are unfortunately few delicate methods of committing murder, and none of them involve the use of a gun. However, any system that seeks to distinguish rationally among murders in terms of heinousness must necessarily incorporate into that concept some idea of torture or the pitiless infliction of unnecessary pain on the victim. See Proffitt v. Florida, 428 U.S. 242, 254-57, 96 S.Ct. 2960, 2967-68, 49 L.Ed.2d 913, 917-18 (1976) and Gregg v. Georgia, 428 U.S. 153, 201-02, 96 S.Ct. 2909, 2938, 49 L.Ed.2d 859, 877 (1968). As these decisions indicate, absent such limiting judicial construction the statutory terms are open to attack as unconstitutionally vague and overbroad and thus furnishing insufficient objective standards as guidelines so as to avoid their arbitrary and discriminatory application in the imposition of the death penalty.

In the present case, the victim was shot twice and bludgeoned once. However, as the coroner testified, any of the wounds would have proven fatal. They were intended to kill, not maim, cripple, or torture in a conscienceless and merciless manner.

(3) The jury also found that the defendant knowingly created a risk of death or great bodily harm to more than one person. We agree that the evidence supports the theory that the defendant intended to kill each of the three persons abducted. However, it appears that the defendant intended to commit each murder by a distinct act, that is, by shooting each intended victim individually at short range.

Arguably, the commission of any one of the individual murders would not have created the risk of death or great bodily harm to the other intended victims during the murder of the individual victim. This suggestion is supported by the fact that the killing of the victim did not cause injury or death to the other intended victims, both of whom escaped. Arguably, the legislature may have intended this aggravating circumstance to apply only to situations in which, for instance, the defendant sets a fire or explodes a bomb in an inhabited building, or shoots randomly into a crowd, where the same act which kills the victim also knowingly creates a risk of death or great bodily injury to more than one person.

The more probable legislative intent is that the extreme penalty of death may be justified when the single consecutive course of conduct contemplates and causes the knowing creation of great risk of death or great bodily harm to more than one person, as here. See Proffitt v. Florida, 428 U.S. 242, 256, 96 S.Ct. 2960, 2968, 49 L.Ed.2d 859, 918 (1976). The latter judicial construction (or either, for that matter) provides sufficient objective guidelines to guard against arbitrary and capricious infliction of the death penalty, so as to save from unconstitutionality the statutory standard. Id.

       Chief Judge L. Julian Samuel participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.

      . La.C.Cr.P. art. 905.2 (1976) provides: “The sentencing hearing shall focus on the circumstances of the offense and the character and propensities of the offender. The hearing shall be conducted according to the rules of evidence. Evidence relative to aggravating or mitigating circumstances shall be relevant irrespective of whether the defendant places his character at issue. Insofar as applicable, the procedure shall be the same as that provided for trial in the Code of Criminal Procedure. The jury may consider any evidence offered at the trial on the issue of guilt. The defendant may testify in his own behalf. In the event of retrial the defendant’s testimony shall not be admissible except for purposes of impeachment.” (Italics ours.)

      . Here, the parole officer could only testify at best from second-hand knowledge that someone else had reported the fact of the conviction. See Nicholas at 359 So.2d 969.
      The state could, of course, have introduced certified copies of official documents of the military court or defense department agency entrusted with the duty to make and retain the record of the fact of the conviction, which (properly authenticated) would have been admissible to prove the conviction. State v. Nicholas, cited in text. The state would also have to prove that the accused was the same person as the individual convicted in 1969 in Vietnam. State v. Lee, 364 So.2d 1024 (La.1978).

      . Additionally, the state sought to prove the prior conviction by eliciting testimony from the two doctors, who served on the defendant’s sanity commission, to the effect that the defendant had confessed to the prior killing and conviction during their interviews with him. The admission of this testimony was also objected to at the time of the testimony.
      This testimony was clearly inadmissible. As stated in State v. Aucoin, 362 So.2d 503, 505 (La. 1978), by tendering his mental health as an issue by his plea of not guilty by reason of insanity the defendant waives the physician-patient privilege, La. R.S. 15:476, only as to such information as is genuinely relevant to the narrow issue there tendered.

      . This consideration by the jury is analogous to consideration in other jurisdictions of the defense of diminished responsibility or capacity. See, Comment, Partial Insanity Affecting the Degree of a Crime, 22 La.L.Rev. 664 (1962); Arenella, The Diminished Capacity and Diminished Responsibility Defenses: Two Children of a Doomed Marriage, 77 Col.L.Rev. 827 (1977); Comment, Diminished Capacity — Recent Decisions and an Analytical Approach, 30 Vand.L. Rev. 213 (1977). LaFave and Scott, Criminal Law, Sections 37, 42 (1972).
      Although Louisiana is among the minority of states that reject the defense of diminished responsibility as it relates to the guilt or innocence of the defendant, see State v. Jones, 359 So.2d 95 (La. 1978) and authorities cited therein, the legislature may well have intended that a similar concept be applied to a determination of whether the death penalty should be inflicted upon the defendant.

      . The portions of the requested instruction omitted by us, if incorrect, are so because less favorable to the accused than the law requires.

      . This provision was amended by Act 105 of 1977 to resolve the problem of the appropriate appellate decree upon finding error in the sentencing hearing. See footnote 8 below. However, the effective date of this act was September 9, 1977. See certificate of Secretary of State, State of Louisiana, Acts of the Legislature, Regular Session 1977, Volume I, p. iii. The 1977 statute was therefore not applicable to the present prosecution.

      .Aside from practical difficulties in reassembling the original jury long after the original trial, the statute itself provides that the jury must remain sequestered through the merit-trial and the sentencing hearing. See La.C.Cr.P. art. 905.1 (1976).

      . As re-enacted in 1977, La.C.Cr.P. art. 905.1 now provides:
      “A. Except as provided in Part B herein, the sentencing hearing shall be conducted before the same jury that determined the issue of guilt. The order of sequestration shall remain in effect until the completion of the sentencing hearing.
      “B. If an error occurs only during the sentencing hearing which would necessitate the declaration of a mistrial, or the granting of a new trial by the trial court, or if an appellate court finds an error that occurred only in the sentencing hearing which would necessitate a remand and a new trial, then the trial court shall be empowered to empanel a new jury under the same procedure set out in Title XXVI, Chapter 3 of The Louisiana Code of Criminal Procedure for determining only the issue of penalty, and the rule of sequestration shall apply to the new jury so empanelled.”

      . The record shows that, for some reason, the New York Sheriff did not receive the communication until March 22, after the trial had concluded.

      . La.C.Cr.P. art. 905.4(a).

      . La.C.Cr.P. art. 905.4(g).

      .La.C.Cr.P. art. 905.4(d).


text:
    STATE of Louisiana, Appellee, v. Abraham BONIER, Jr., Appellant.
    No. 62952.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Rehearing Denied March 5, 1979.

      Donald M. Garrett, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., Edward E. Roberts, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Bonier was convicted of armed robbery, La.R.S. 14:64, and sentenced to fifty years’ imprisonment at hard labor. Upon his appeal, he relies upon two assignments of error. Both are based upon the trial court’s interruption of his counsel’s closing argument.

The interruption allegedly constituted a comment upon the evidence in violation of La.C.Cr.P. art. 772 (Assignment 1), which caused prejudice not cured by any admonition, that thus entitled the accused to a mistrial, La.C.Cr.P. art. 771 (Assignment 2).

The essential issue involves whether the trial court improperly indicated that the (possibly) unloaded pistol used in the robbery is a “dangerous weapon” as a matter of law, rather than leaving such factual determination to the trial jury.

Context Facts

The interruption occurred wh§n counsel was arguing that there was no proof that the .22 caliber pistol used in the robbery was loaded and thus was not a dangerous weapon.

The trial court interrupted counsel, stating “ * * * that is not the law and I will not permit you to argue that to the jury.” The defendant’s lawyer replied, “Well, your honor, I think I am entitled to argue whether this was a dangerous weapon, in the manner it was used — .”

The court stated: “I have instructed you, sir, and you will drop the subject matter.” After counsel once again replied as to his responsibility to argue for the accused, the court stated: “You may object to my ruling but that is as far as you can go, because the law is very explicit that the test is whether or not the victim believes that it is a dangerous weapon. You can . . . armed robbery can be committed with a weapon that is not loaded. *■ * * ”

The defendant’s attorney then objected to the trial court’s interruption as a comment on the evidence and also moved for a mistrial. The trial court’s adverse rulings are the basis for the assignments of error urged on this appeal.

Applicable Legal Principles

Armed robbery is robbery committed while armed with a “dangerous weapon.” La.R.S. 14:64. “Dangerous weapon” is defined as an “instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” La. R.S. 14:2(3).

The definition contemplates the “use of some inanimate instrumentality” as a dangerous weapon. State v. Calvin, 209 La. 250, 24 So.2d 464, 469 (1946), noted 7 La.L. Rev. 288-89 (1947). The “dangerousness” of the instrumentality by reason of the manner in which it is used is a question of fact for the jury to decide. State v. Murff, 215 La. 40, 39 So.2d 817, 823 (1949).

The term “dangerous weapon” is not limited to those instrumentalities which are inherently dangerous, but includes any instrumentality “which in the manner used, is calculated or likely to produce death or great bodily harm,” La.R.S. 14:2(3). See, e. g.: State v. Murff, 215 La. 40, 39 So.2d 817 (1949); State v. Reynolds, 209 La. 455, 24 So.2d 818 (1945). See also Note, 32 La.L. Rev. 158 (1971). This broadly defined term has given rise to a jurisprudence attempting to deal with the situation where a relatively harmless instrument, e. g., a bottle, creates danger because of the manner and the context in which it is used, most often a robbery.

In State v. Johnston, 207 La. 161, 20 So.2d 741 (1945), we held that an unloaded pistol was a dangerous weapon when used in connection with a threat to kill the victim. In doing so, the court noted that the pistol appeared to be in good working order and thus might usually provoke violence occasioning bodily injury or death because of a victim’s frequent resort under such circumstances to assault or escape from such apparently grave threat to his own life.

Following Johnston, a series of decisions held that the offender’s use in a robbery of an inanimate instrumentality resembling a loaded firearm could be found by the jury to constitute the use of a dangerous weapon in committing an armed robbery. State v. McMorris, 343 So.2d 1011 (La.1977) (bottle held in pocket like pistol would be), noted 38 La.L.Rev. 424-27 (1978); State v. Leak, 306 So.2d 737 (1975) (extension to a rachet coupled with a socket simulating a firearm), noted 36 La.L.Rev. 508-510 (1976); State v. Levi, 259 La. 591, 250 So.2d 751 (1971) (unloaded and unworkable pistol), noted 32 La. L.Rev. 158-63 (1971).

The cited law review commentaries raise two objections to the jurisprudence. First of all, some of these decisions (in particular McMorris) contain language which may incorrectly indicate that the possible use of the instrumentality as a club is sufficient to raise a factual issue as to the weapon’s dangerousness — whereas the statutory standard, La.R.S. 14:2(3), contemplates the actual use of the instrumentality “in the manner used is calculated or likely to produce bodily injury or death.” (Italics ours.)

Likewise, these law review critiques note that Johnston and its progeny are open to the construction, unwarranted by the statutory standard, that the test of the weapon’s dangerousness lies exclusively in the subjective characterization by the victim of whether he is in danger.

We find to be well-founded these law review criticisms of some of the language in these decisions, and of their alternative rationale (i. e., the possible use of the weapon as a club).

Correctly understood, these decisions recognize that whether an instrumentality resembling a loaded firearm is a “dangerous weapon” is a factual issue to be decided within the immediate context of an armed robbery case. The jury must first of all find that some gas, liquid or other substance or “inanimate” instrumentality was used. Then the jury must determine whether in the manner actually used it was “calculated or likely to produce death or great bodily harm.” In making its determination, the jury may find that there was an actual likely danger of serious bodily harm to anyone present in the highly charged atmosphere of the scene of a robbery, taking into consideration the great possibility of violence in the interaction between the offender and the victim thereby put in fear for his life. See Leak at 306 So.2d 738-39. (Of course the subjective reaction of the victim may be some evidence of whether there was an actual likelihood of danger; however, the subjective reaction of the victim is not determinative of the issue.)

In State v. Elam, 312 So.2d 318 (La. 1975), we specifically disapproved the erroneous inferences in argument to the jury “that a victim’s subjective reactions are determinative of the issue” whether the weapon used in the robbery was dangerous. 312 So.2d 321. We thus emphasized once again that the test provided by the statutory standard, and traditionally applied by our jurisprudence, is that the instrumentality, to be “dangerous”, must be used in a manner which in actual fact is likely to cause death or great bodily injury. Certain of the language in McMorris, Leak, and Levi might be construed as deviating from this standard; we therefore disapprove it as incorrect.

Conclusion

Under these principles, the trial court’s language was erroneous insofar as it implied that the test of dangerousness is whether a victim believes the weapon is dangerous — although the misstatement is understandable in view of this misinterpretation at least implied by some of the language in Levi and Leak.

In any case, the comment is not reversible error under the circumstances: In the context of the defendant’s argument — that an unloaded firearm may not be a dangerous weapon — ■, the trial court apparently intended only to correct the implication that the firearm must be loaded to be dangerous, 1. e., that it must be inherently dangerous.

Perhaps it would have been preferable for the court to await opposing counsel’s objection or to rely upon opposing counsel’s rebuttal to clarify the matter. Nevertheless, the thrust of the clarification is that the firearm admittedly used, even if unloaded might nevertheless be a dangerous weapon — because, if the victim believes it is loaded, there is objectively a danger of bodily harm or death arising from the great possibility of violent reaction between offender and victim.

Therefore — despite the substantial contention that the trial court’s premature interruption and admonition prevented defense counsel from arguing that under the circumstances the (possibly) unloaded .22 caliber pistol was not used in such a manner as to constitute a dangerous weapon — , we do not find the trial court’s interruption to have been a comment on the evidence, nor that it prejudicially tended to limit the trial jury in the exercise of its fact-finding function in the determination of this crucial issue: whether or not the gun in the present case, if unloaded (or not), was used in such manner as to cause actual likelihood of death or great bodily injury, so as to be a dangerous weapon.

Decree

Accordingly, for the reasons assigned, we. affirm the conviction and sentence.

AFFIRMED.

SUMMERS, C. J., and MARCUS and DENNIS, JJ., concur.

       Chief Judge L. Julian Samuel participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.

      . In addition to those cited in the text, others of our decisions have also held that a firearm not inherently dangerous (because unloaded or of a non-lethal nature) is nevertheless, for armed robbery purposes, a “dangerous weapon.” State v. Leggett, 363 So.2d 434 (La. 1978) (air pistol); State v. McClinton, 329 So.2d 676 (La. 1976).
      The great weight of national authority likewise holds that an unloaded pistol used in a robbery may be found to be a dangerous weapon, even if not used as a bludgeon. LaFave and Scott, Criminal Law, Section 94 at p. 703 (1972). This treatise points out that the majority view is conceptually wrong, because the aggravating circumstances of the robbery (through use of a dangerous weapon) are intended to be so severely punished because of the greater degree of dangerousness actually occasioned by use of the weapon, as compared with the simple force or intimidation required for the lesser crime of simple robbery (cf. La. R.S. 14:65). Id.
      In overlooking this conceptual difficulty, our decisions — in addition to the explanation that objectively danger of death and bodily injury results from the confrontation in a robbery between a victim and an offender apparently armed with a deadly weapon — sometimes advert to the difficulty of proof that the weapon used was actually loaded at the time of the robbery, if the weapon used is not recovered from the robbdr at the time of the holdup. The cited treatise comments that some jurisdictions therefore permit the inference that the weapon was loaded to go to the jury, despite the lack of proof that the weapon was loaded, LaFave and Scott, p. 703, or perhaps despite self-serving testimony by the accused after the fact that the gun was not loaded.

      . In Elam, the offender committed a robbery with threats of shooting, with his hand in his pocket in such a way as indicated he was holding a weapon. We specifically indicated that a hand in a pocket could not be a dangerous weapon (for, as earlier noted, a dangerous weapon must be an inanimate instrumentality used in such manner as calculated or likely to produce death or bodily injury). Nevertheless, we found that this conduct constituted some evidence from which the jury could reasonably infer (at least in absence of opposing evidence) the use of an actual weapon, even though the weapon was not actually found on the robber after he was captured following a chase of several hundred yards. We thus denied reversal, holding there was “some” evidence of the use of a dangerous weapon rejecting the contention that no evidence supported proof of this essential element of the crime.

      . The immediately succeeding argument of defense counsel dwelled on the lack of dangerousness in the use of the weapon (e. g., no one’s finger was on the trigger, the lack of fear on the part of the victim, the offender’s cooperation in leaving the stolen automobile and its keys at a given location after use of it for the getaway, per agreement with the victim, etc.) Tr. 45-46.


author: DIXON, Justice.

text:
    Roy YOUNG et ux. v. Richard J. CLEMENT, M. D., et al.
    No. 62789.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Rehearing Denied March 5, 1979.

      Robert W. Clements, Bernard H. McLaughlin, Jr., Stockwell, Sievert, Vicel-lio, Clements & Shaddock, Reginald W. Far-rar, Jr., Raggio, Farrar, Cappel & Chozen, Lake Charles, for defendants-respondents.
    Reuvan N. Rougeau, Roche & Rougeau, Lake Charles, for plaintiffs-applicants.
   DIXON, Justice.

In this medical malpractice suit exceptions of prescription were sustained in the trial court and affirmed on appeal. Young v. Clement et al., 359 So.2d 1070 (La.App. 1978).

The damage complained of resulted from surgery by Dr. Clement which removed Mrs. Young’s Fallopian tubes and ovaries on January 26, 1973, which plaintiffs claim were healthy, and from an errant stitch which blocked a ureter and required additional corrective surgery.

On November 20, 1975 plaintiffs filed their first suit, against Dr. Clement alone; the suit alleged a course of surgical procedures which followed a persistent uterine infection during pregnancy, the failure to diagnose and treat properly, and, specifically, the negligent suturing of the ureter on January 26,1973 during the removal of the ovaries. An amending petition was filed on February 9, 1976 making St. Paul Fire and Marine Insurance Company, Dr. Clement’s insurer, a party, and specifying that the removal of the tubes and ovaries on January 26,1973 was an unwarranted procedure because they were neither inflamed, infected nor malignant.

Another supplemental petition was filed on September 2, 1976 joining St. Patrick Hospital of Lake Charles, Inc. (also insured by St. Paul Fire and Marine Insurance Company) alleging that the hospital knew or should have known that Dr. Clement improperly performed unwarranted surgery and wrongfully permitted him to operate in the hospital without proper supervision.

The Court of Appeal had only this to say about the prescription issues:

“The prescription issue was resolved on the basis of factual determinations by the trial court against the plaintiffs.. There is a reasonable evidentiary basis in the record for the findings of the trial court and, therefore, there is no manifest error.” 359 So.2d at 1071.

As held in Arceneaux v. Domingue, 365 So.2d 330, 1978, such a finding does not complete the appellate review of facts. When there is a reasonable evidentiary basis for the findings of the trial court they will not be disturbed unless manifestly erroneous (clearly wrong).

In his written opinion the district judge accepted July, 1975 as the time when the Youngs had actual knowledge of the cause of the blockage of the ureter. It was then that Dr. Melton told Mr. Young that the likely cause was a misplaced stitch during the removal of Mrs. Young’s tubes and ovaries. (Dr. Melton performed corrective surgery February 1, 1973). Mr. Young was prompted to inquire of Dr. Melton because of rumors about the reasons for Dr. Clement’s prior departure from Lake Charles.

The district judge was impressed by the fact that, after the surgery in February, 1973, Dr. Melton had explained to Mrs. Young that the cause of her pain which made the surgery necessary was a blockage of the ureter. The judge found that Dr. Melton would have told the Youngs the cause of the blockage if they had asked, and said, “They should have asked the question, ‘why the blockage’ then.” Such “constructive knowledge,” the trial court held, defeated plaintiffs’ efforts to avoid the running of prescription on their claim for the blocked ureter.

As for the claim for wrongful removal of healthy tissues (Fallopian tubes and ovaries) on January 26, 1973, the trial court found that the Youngs were not so ignorant of the factual basis of their claim as to prevent the running of prescription. Because Dr. Clement read the pathologist’s report to the Youngs shortly after the operation, presumably, the Youngs should have known that the tubes and ovaries were healthy and that their removal, therefore, unwarranted.

Prescription does not run against one who is ignorant of the existence of facts that would entitle him to bring a malpractice action, as long as such ignorance is not willful and does not result from his.neglect. Henson v. St. Paul Fire and Marine Insurance Co., 363 So.2d 711 (La.1978). Roy Young is a butcher; he and his wife both had confidence in Dr. Clement, who had treated her since October of 1970. Mrs. Young had kidney trouble since she was eleven. She had been hospitalized and treated for urinary tract infections. Once she was hospitalize^ for pain in the kidney area very much like that suffered after the January 26, 1973 operation, but on the opposite side. She had her fourth child in May of 1971 and a hysterectomy on January 18, 1972. Several surgical procedures followed in 1972 because of bleeding of the vaginal cuff. Dr. Clement was still treating her when-he moved to New Orleans in the middle of 1974, and he referred her to another doctor for care in his absence. The record discloses no evidence that the Youngs should have suspected that the reason for the blockage of the ureter was a negligent stitch by Dr. Clement during the operation to remove the tubes and ovaries. Dr. Clement, himself, according to his testimony, does not believe he stitched the ureter closed. He admits the blockage was due to the surgery. Dr. Melton’s operation to relieve the blockage did not explore the cause of the blockage. Dr. Clement believed the blockage was a result of intentional but necessary closing of the peritoneum over the ureter to stop bleeding. Dr. Melton’s opinion differed.

Neither doctor, obviously, told the Youngs that the surgeon’s negligence caused the blockage. The record does not support the trial judge’s conclusion that the Youngs should lose the right to litigate their claim because they failed to ask Dr. Melton, “Why the blockage?”

Nor should a finding that the Youngs were read the pathologist’s report after the removal of the tubes and ovaries justify a conclusion that the Youngs knew or should have known that the removal was unnecessary and unwarranted. That report is as follows:

“ST. PATRICK HOSPITAL of Lake Charles 524 S. Ryan Street Lake Charles, La. 70601 TISSUE CONSULTATION Submitted by Dr: Clement Date of Surgery 1/26/73 Pre-operative diagnosis:
‘P.I.D., Bleeding disorder.’
Post-operative diagnosis:
‘Exp. lap; bil. S & 0.’
‘Left ovarian cyst.’
Specimen:
‘Both tubes and ovaries (cyst on left ovary).’
Brief clinical history:
‘Previous hyst. Chronic P.I.D. since time of her surgery.’
GROSS: Received in one container are two grossly identifiable ovarian structures, two strips of skin and smaller fragments of soft tissue.
The strips of skin are characterized by the presence of linear scars. One ovary measures approximately 4 cm. in diameter. Another measures approximately 3 cm. in height. Segments of fallopian tube appear to be adherent to the ovarian surfaces. On sectioning both ovaries fairly large unilocular blood filled cysts are encountered. Grossly they appear to represent hemorrhagic corpus luteum cysts. The small ovary contains several small follicular cysts containing clear watery fluid. No gross evidence of active inflammation is apparent. Sections are submitted.
MICROSCOPIC: Sections of both ovaries reveal small follicular cysts and multiple corpora albicantia. No active inflammatory changes are noted. Sections include segments of fallopian tube which are attached to the ovarian surfaces. Fallopian tubes are not remarkable on section. DIAGNOSIS: BILATERAL OVARIES AND FALLOPIAN TUBES AND STRIPS OF SKIN CONTAINING LINEAR SCARS: (A) FOLLICULAR CYSTS OF OVARIES.”

Dr. Clement testified that the report showed a chronic infection present, and that he so informed Mrs. Young. Dr. Clement seemed to take the position that the pathology report justified the operation. He might be right. But the Youngs cannot be held to a superior ability to interpret the report to mean that he was wrong, and that they must sue within a year or lose their right.

On September 2, 1976 St. Patrick Hospital of Lake Charles, Inc. was made a party defendant by the second supplemental and amending petition. Plaintiffs alleged that the hospital knew or had reason to know that Dr. Clement “without justification, arbitrarily performed unwarranted surgery” without proper and normal diagnostic procedures and pathological evaluations. On the trial of the exception of prescription very little evidence was devoted to this aspect of plaintiffs’ case. The trial judge concluded that more than a year passed after plaintiffs employed a lawyer, investigated the case, and filed the original suit against Dr. Clement. Plaintiffs failed to show an ignorance of the factual basis for their claim against the hospital existing in the year before the claim against the hospital was filed.

In their Assignment of Error No. 2 plaintiffs complain about the trial court’s ruling on questions arising during a discovery deposition of an administrator of the hospital. The administrator had been instructed not to answer questions about the identity of the hospital “Tissue committee,” and actions it might have taken with reference to Dr. Clement. The trial judge upheld the refusal as justified under R.S. 44:7 D, an amendment to the public records act by Act No. 679 of 1975.

We need not at this time discuss plaintiffs’ arguments with respect to restrictions on discovery and the application of R.S. 44:7, except in one particular. Plaintiffs suggest that the refusal to answer questions about the “Tissue committee” was part of an effort to “conceal, hinder, and impede plaintiffs from ascertaining the nature and scope of the injuries and damages sustained by Judy Ann Young . . . ” If this is an argument that plaintiffs were prevented by the hospital from acquiring sufficient information to form the basis of their claim against the hospital, it is not supported by the record.

On the record before us, the plea of prescription of the hospital was correctly sustained.

In their Assignment of Error No. 1 plaintiffs complain of a denial of a motion for a new trial. No abuse of discretion is shown.

For these reasons the judgments of the court below are affirmed in part and reversed in part. The judgment sustaining the exception of prescription filed by St. Patrick Hospital of Lake Charles, Inc. is affirmed, and the costs attributable thereto are to be borne by plaintiffs; the judgment sustaining the plea of prescription filed by Dr. Richard J. Clement and St. Paul Fire and Marine Insurance Company is reversed at defendants’ cost, and the case is remanded to the district court for further proceedings.

       Chief Judge James E. Bolin participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Joe W. Sanders, Retired.

      . “The records and proceedings of any hospital committee, medical organization committee or extended care facility committee established under state or federal law or regulations or under the bylaws, rules or regulations of such organization or institution shall be confidential and shall be used by such committee and the members thereof only in the exercise of the proper functions of the committee and shall not be public records and shall not be available for court subpoena. No physician, hospital, whether public or private, organization, or institution furnishing information, data, reports, or records to any such committee with respect to any patient examined or treated by such physician or confined in such hospital or institution shall, by reason of furnishing such information, be liable in damages to. any person. No member of such a committee shall be liable in damages to any person for any action taken or recommendation made within the scope of the functions of such committee if such committee member acts without malice and in the reasonable belief that such action or recommendation is warranted by the facts known to him.”


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Henry KELLY.
    No. 62071.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Rehearing Denied March 5, 1979.

      Elizabeth Cole, New Orleans, Orleans Indigent Defender Program, for defendant-appellant.
    William J. Guste, Jr.; Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Robert Myers, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

On five different occasions during the early months of 1977 an individual identified as defendant, Henry Kelly, committed armed robberies at the same Tenneco Oil Company outlet, located in the 1800 block of South Claiborne Avenue in New Orleans. A five count bill of information charging these offenses was filed on March 14, 1977. On May 28, 1977, just before trial commenced, the state nolle prosequied the first count of the bill of information, and trial on the remaining four counts resulted in verdicts of guilty as charged. The defendant was sentenced to consecutive terms of ten years on each of three counts and five years on the fourth count. On this appeal defendant argues twenty assignments of error. Because we determine that these assignments do not present error requiring revérsal, we affirm the convictions and sentences.

Nineteen of the' assignments urged to this Court, presented in six arguments, are clearly without reversible merit; only Number 15, which will be discussed hereafter, presents a serious issue for our consideration. The first argument, which includes Assignment Numbers 1, 11, 12 and 13, involves the defense request for a subpoena duces tecum seeking production of a “log” which was purportedly kept by Ten-neco for the purpose of recording details of armed robberies. In an attempt to satisfy the subpoena, a Tenneco employee brought to court police reports of all armed robberies which occurred at the location, assertedly the only records Tenneco possessed, and the court refused to allow inspection of these police reports or conduct inspection itself to determine any exculpatory content. The Tenneco representative stated that the supervisor responsible for record keeping in the area of the robberies’ location was terminated for failure to keep required records. Additionally, the court declined to allow pre-trial evidence offered to show that the log had indeed existed at one time. Testimony of the Tenneco representative had been to the effect that the records were the only ones in existence at the time Ten-neco sought to comply with the subpoena. Under Code of Criminal Procedure article 723 they were not discoverable. Furthermore, the judge was not required to inspect the documents for exculpatory matter; the state had previously responded to a defense request for exculpatory matter, revealing that it had none. Defense was instructed that it could question at trial the witness it sought to present to show the log’s previous existence and, while it failed to present this witness, it did establish- at trial through another witness that at one time such a “log” was kept. However, the continued existence or retention of the “log” sought was not proven, and no prejudice in deferring presentation of evidence of the log’s previous existence is established. These complaints lack merit.

Assignments Numbers 3, 4, 5, 6, 7, 8, 9, and 10 comprise the second argument, which concerns the court’s conduct of the hearing on the motion to suppress the identification and the adverse ruling thereon. Our review establishes that the record adequately supports the denial of the motion. While we by no means approve of the trial judge’s conduct which prompted the defense complaint that he exhibited bias against the defendant and his attorney, we do not find that the record establishes the existence of bias or reveals any error of reversible proportions. Moreover, the conduct of which the defense complains took place during proceedings in connection with a suppression motion heard prior to trial and out of the presence of the jury, the triers of fact charged with the duty of judging the defendant’s guilt or innocence.

Assignments Numbers 18 and 19 are the subject of the third argument presented on this appeal. During the testimony of one of the victims, the court instructed that witness to cross the courtroom, approach the defendant whom he had identified, and point out the tattoo which the witness had mentioned in relating his description of the robber. Defense objected, complaining the witness had not stated the side of the robber’s face on which the tattoo was located. The witness said it was the left side and then complied with the court’s instructions. Later, during that same witness’ testimony, after he had testified again that the robber had a question mark tattoo on the left side of his face, the trial judge asked, “You say, he had a tattoo on the left side of his face?” The defense complained that the question amounted to a prohibited comment on the evidence.

The complaint that the witness had not stated the side of the perpetrator’s face on which the tattoo was located was rendered moot when, before following the court’s instruction, the witness stated it was on the left side. The judge’s question seeking to confirm that the witness had stated that the robber had a tattoo on the left side of his face was not a prohibited comment on the evidence but rather a request for verification of what the witness had just stated. In light of the fact that the judge’s question added nothing to the evidence, which was emphatic and unequivocal and which had just been repeated by the witness for the second time during his testimony, we cannot say that the question falls within the prohibition of Article 772 of the Code of Criminal Procedure.

The fourth argument concerns Assignments Numbers 20 and 21. They involve proceedings arising from trial testimony indicating, contrary to the bill of particulars, that a corporeal line-up had been conducted in this case. During defense cross-examination one of the victims said that a corporeal line-up had taken place, at which he had identified the defendant. This revelation prompted no immediate objection on the part of the defense. After the testimony of four intervening state witnesses, at the conclusion of which the state rested, the defense called the prosecutor to the stand and had him verify that the bill of particulars communicated that there had been no corporeal line-up. Out of the jury’s presence the prosecutor related that the answers in the bill of particulars were based on information communicated to him (that there were photographic identification procedures which resulted in the defendant’s identification, but no corporeal line-up) and that he had no personal knowledge of a line-up, but that there could possibly have been a corporeal line-up about which he had no knowledge, as the victim-witness indicated.

At this point in the prosecutor’s testimony, defense sought a mistrial on the basis that the state’s response to the motion for bill of particulars set forth no line-up was held, but the evidence established that there was a line-up. Mistrial was denied.

The failure of the defense to object at the time of its introduction to the evidence of line-up elicited at trial on the basis that it varied from the particulars waived any right to complain on the basis of the variance which may have existed. The record does not establish that the state’s representation was false, and certainly does not indicate any willful or knowing misrepresentation. Defense’s failure to pursue a course of remedial action at the time that the testimony it elicited signalled some discrepancy precludes relief on the basis of that discrepancy. These assignments are without reversible merit. See State v. Glover, 304 So.2d 348 (La.1974).

The fifth argument is presented in conjunction with Assignment Number 23. During closing argument the state argued that an identification of the defendant had been made in a fifth case, in addition to those made in the four cases for which he stood trial. The defense sought a mistrial, arguing there had been no testimony of an identification in a fifth case.

The record reveals that on cross-examination the defense elicited testimony from a witness that she was present on the occasion of a fifth robbery when the defendant robbed another Tenneco employee. Thus, the prosecutor’s argument was within the permissible scope of argument outlined by Article 774 of the Code of Criminal Procedure.

Assignments Numbers 14, 15 and 16 comprise the sixth argument made in support of this appeal. The three assignments deal with the alleged curtailment of voir dire, but Assignment Number 14, which would be meritorious had the error occurred after the date upon which the judgment in State v. Holmes, 347 So.2d 221 (La.1977) became final cannot avail defendant, whose trial concluded prior to that decision. Disallowing defense inquiry regarding apprehension of the robber of the bank in which the prospective juror being examined worked was within the sound discretion afforded the trial judge to limit the scope of examination by Code of Criminal Procedure article 786; moreover, the defense had exhausted its peremptory challenges prior to this inquiry. Thus, Assignment Number 16 is likewise clearly lacking in merit.

Assignment of Error Number 15, which complains that the trial court erred in disallowing inquiry of what a prospective juror’s vote would be if called upon to vote at the time of the voir dire, presents the closest issue for our consideration upon this appeal. When the trial judge disallowed the inquiry as it was framed, the defense preserved an objection. On this appeal, the defense argues that inquiry designed to test the juror’s understanding of the presumption of innocence and her ability and willingness to apply it was foreclosed, in violation of the defendant’s constitutional rights to a fair trial, full voir dire and peremptory challenge of prospective jurors.

After careful consideration of the assignment, we do not find it sufficiently meritorious to warrant reversal of Kelly’s convictions and sentences. This Court’s decisions in cases such as State v. Dixon, 365 So.2d 1310 (La.1978), State v. Hayes, 364 So.2d 923 (La.1978) and State v. Hills, 241 La. 345, 129 So.2d 12 (1961) (on rehearing) do, indeed, respect the constitutional mandate of full and effective voir dire, notwithstanding Code of Criminal Procedure article 786’s grant to the trial judge of latitude in restricting voir dire examination. While the question posed by defendant’s counsel in this instance arguably ought to have been permitted, we find the circumstances sufficiently distinguishable from those present in the Hayes case, a case admittedly similar to the instant case with regard to this assignment. Here, the prospective juror was simply asked how she would vote, guilty or innocent, if called upon to decide at that instant. No explanation of applicable legal principles was given this prospective juror prior to defense counsel’s inquiry; at that point the prospective juror was uncoun-seled, and possibly even unaware of what her role as a juror would be. In Hayes, prior to inquiring about the juror’s tendency to want to hear the defense version of the matter at issue, the defense counsel had emphatically advised of the defendant’s right to claim his Fifth amendment privilege without consequent penalty or disability-

Furthermore, the entirety of the voir dire examination indicates that the defense was otherwise given wide latitude in posing questions to the prospective jurors and was specifically permitted to inquire of prospective jurors what their vote would be at the conclusion of trial if the state failed to prove every element of the crime beyond a reasonable doubt. See State v. Monroe, 329 So.2d 193 (La.1976) (on rehearing). The assignment, while presenting a serious issue, lacks ultimate reversible merit.

Decree

For the foregoing reasons, the defendant’s convictions and sentences are affirmed.

AFFIRMED.

         Blanche, J., not participating.

      . Article 723 of the Code of Criminal Procedure provides as follows:
      “Except as provided in Articles 716, 718, 721, and 722, this Chapter does not authorize the discovery or inspection of reports, memo-randa or other internal state documents made by the district attorney or by agents of the state in connection with the investigation or prosecution of the case; or of statements made by witnesses or prospective witnesses, other than the defendant, to the district attorney, or to agents of the state.”