author: TATE, Justice. SUMMERS, Justice DIXON, Justice. MARCUS, Justice SANDERS, Chief Justice SUMMERS, Justice

text:
    STATE of Louisiana, Appellee, v. Sammy K. LEE, Appellant.
    No. 56244.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Dissenting Opinion Nov. 24, 1975.
    On Rehearing March 29, 1976.
    Dissenting Opinion April 19, 1976.
    Dissenting Opinion On Rehearing May 17, 1976.

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

The defendant Lee was convicted of second degree murder, La.R.S. 14:30.1 (1973), and sentenced to life imprisonment at hard labor. We must reverse. We find that the trial court erred in refusing to receive testimony as to the decedent’s dangerous character in support of the accused’s plea of self-defense, after the defendant had laid the requisite foundation by producing appreciable evidence that the decedent had made a hostile overt act against the accused. (Assignments of Error Numbers 1 through 5).

Context Facts

The defendant Lee and the victim Etch-ieson were part of a group of transient blacktop roof repairers, who with their families had moved from Mississippi to a mobile trailer park near Monroe, Louisiana, about a week before the offense charged. For the most part, they were related to one another by blood or marriage and moved from job-site to job-site over several southern states.

On the Sunday morning of the incident, Etchieson’s daughter and Lee’s son, both five years of age, had gotten into a fight while they waited near the road for the Sunday school bus. Etchieson came out of his trailer in anger and headed toward the children.

Lee’s son ran towards his father, who was nearby standing with three other men preparing to go squirrel hunting. Lee had with him a 12-gauge shotgun.

Lee testified that Etchieson sprang at him and cut him with a knife and shouted, “I’m going to cut off your head.” (The three state witnesses, the decedent’s wife chiefly, testified Etchieson had no knife.) Lee shot Etchieson, causing his almost immediate death. He immediately turned himself in to the police, who found a small reddened slashmark (scratch) on his left chest beneath a ripped shirt.

The decedent was a big man, over six feet in height, weighing about 210 pounds. The accused was a much smaller man.

The defense upon which the accused relied was that he shot the decedent in self defense, in the reasonable belief that his own life was in danger. The defendant Lee was permitted to describe his own difficulties with the decedent Etchieson and to testify to a violent act he had seen him commit; but state objections were sustained to questions asked of him and of another defense witness which prevented him from attempting to establish the decedent’s dangerous and violent character. For reasons to be set forth, these objections erroneously hampered to a substantial degree the evidence he tendered for his plea of self-defense.

Evidence as to the Decedent’s Dangerous Character in Support of Plea of Self-Defense

In direct contradiction to the state’s three eyewitnesses, the first defense witness testified that she had seen the victim make two or three jumps toward defendant and swing at him with “something”. After he was shot, the victim staggered back and dropped a knife.

The second defense witness testified that immediately after the shooting, she saw a knife laying on the ground beside the victim.

The defense counsel then attempted to elicit testimony from this witness as to the victim’s dangerous character and reputation. The trial court sustained the state’s objection to the introduction of this testimony. Similarly, when the defendant took the stand and attempted to respond to questions concerning his own knowledge of the victim’s dangerous history, the trial judge refused to admit such testimony.

The evidence was sought in support of a plea of self-defense, authorized by La.R.S. 14:20: “A homicide is justifiable: (1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger * * *."

Evidence of the decedent’s dangerous character or of his threats against the accused may be admissible in support of this plea of self-defense, provided that the accused first produces evidence that the decedent had made a hostile demonstration or overt act against the accused at the time of the incident. See La.R.S. IS :482 (quoted below).

As explained in State v. Brown, 172 La. 121, 133 So. 383, 386 (1931), summarizing the well-settled principle: “An overt act is a hostile demonstration of such character as to create in the mind of a reasonable person the belief that he is in immediate danger of losing his life or of suffering great bodily harm. The term ‘overt act,’ as used in connection with prosecutions for murder where the plea of self-defense is involved, means any act of the deceased which manifests to the mind of a reasonable person a present intention on his part to kill defendant or do him great bodily harm.”

As amended by Act 239 of 1952, La.R.S. 15:482 provides: “In the absence of evidence of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible.” (Italics ours.) The 1952 amendment specifically permitted dangerous character evidence, if “evidence” instead of “proof” (the pre-1952 wording) was made of the overt act or hostile demonstration. See 13 La.L.Rev. 64 (1952).

Prior to the 1952 amendment, this court had held.that by the pre-1952 wording the “proof” of the overt act must be established to the satisfaction of the trial judge before evidence of the decedent’s dangerous character or of his threats against the accused could be received. State v. Terry, 221 La. 1109, 61 So.2d 888 (1952), 14 La. L.Rev. 226-28 (1953); State v. Tobias, 218 La. 226, 48 So.2d 905 (1950). State v. Thornhill, 188 La. 762, 178 So. 343 (1938); State v. Richardson, 175 La. 823, 144 So. 587 (1932); State v. Dreher, 166 La. 924, 118 So. 85 (1928). Chief Justice O’Niell repeatedly dissented from these rulings, strongly urging that by them the trial judge, by rejecting the credibility of defense witnesses on a merit-issue, was permitted to invade the trial jury’s function of evaluating the evidence. See: 11 La.L. Rev. 231-32 (1951); Note, 2 La.L.Rev. 376 (1940).

The legislative intent reflected by the 1952 amendment was to overrule legislatively our decisions that permitted the trial judge’s discretion to determine incredible the defendant’s evidence of an overt act and thus, without jury evaluation of it to withhold from the jury evidence tendered by the defendant in support of his position that he was acting reasonably in self-defense. This is the explicit purport of the amendment, and the prior academic and judicial criticism of the former interpretation (unique to Louisiana) re-enforces our view that such was the legislative intent.

Despite the specific evidence by the first and second defense witnesses that the decedent had attacked the accused with a knife, the trial court did not permit the dangerous-character evidence to go to the jury, apparently upon its own credibility evaluation that the evidence was untruthful. As our trial brother stated, “In view of the uniformity of positive evidence from state’s witnesses as to what had occurred and the absence of any weapon connected with the deceased, the Court was extremely doubtful that at this point in the trial there had been sufficient evidence to show an overt act or hostile demonstration by the deceased toward defendant at the time of the shooting.” (Italics ours.)

The trial court thus committed error in its ruling, for it ignored the effect of the 1952 amendment. By it, when appreciable evidence is in the record relevantly tending to establish the overt act, the trial court cannot exercise its discretion to infringe on the fact-determination function of the jury by disbelieving this defense testimony and thus, deny the accused a defense permitted him by law. See: State v. McMillian, 223 La. 96, 64 So.2d 856 (1953); Pugh, 14 La.L.Rev. 226-28 (1953) ; 13 La. L.Rev. 64 (1952).

The trial court’s ruling is inconsistent with such post-1952 decisions of this court, as State v. Harding, 307 So.2d 338 (La. 1975), State v. Poindexter, 231 La. 630, 92 So.2d 390 (1957), and State v. McMillian, 223 La. 96, 64 So.2d 856 (1953). (In fairness to the trial court, however, we must admit that there were a series of post-1952 rulings by this court which repeated the pre-1952 formulation by which the trial court had discretion to reject the evidence as to an overt act; which decisions overlooked without discussion the effects of the 1952 amendment.)

The statute and jurisprudence require that an overt act be established before the dangerous-character and threat evidence concerning the decedent may be introduced. La.R.S. 15:482. State v. Burkhalter, 319 So.2d 392 (La.1975); State v. Houston, 316 So.2d 724 (La.1975); State v. Jackson, 308 So.2d 265 (La.1975); State v. Walker, 296 So.2d 310 (La.1974); State v. Warren, 271 So.2d 527 (La.1973); State v. Rollins, 271 So.2d 519 (La.1973); State v. Robinson, 263 La. 25, 267 So.2d 182 (1972); State v. Cannon, 231 La. 877, 93 So.2d 200 (1957).

But, once the overt act is established, this type of evidence is admissible in support of a plea of self-defense in a murder prosecution for two distinct purposes: (1) to show defendant’s reasonable apprehension of danger which would justify his conduct; and (2) to help determine who was the aggressor in the conflict. See: 11 La.L.Rev. 231 (1951); 1 Wigmore on Evidence, Sec. 63 (3d ed. 1940); McCormick on Evidence, Sec. 295, pp. 700-701 (2d ed. 1972).

When the evidence is introduced for the first purpose, it is admissible to show the accused’s state of mind, based on what he himself knew of the decedent’s reputation or threats. As explained in State v. McMillian, 223 La. 96, 64 So.2d 856, 857, reversing for refusal to permit introduction of evidence concerning specific prior acts between the parties, such evidence “was admissible and relevant to show the reasonableness of the defendant’s fear of an impending attack or of suffering great bodily harm at the time of the homicide. It would have tended to negative intent and was thus relevant and admissible under [La.R.S.15:] Article 441 of the Code of Criminal Procedure, which provides: ‘Relevant evidence is that tending * * * to negative the commission of the offense and the intent.’ ” See also 2 Wigmore on Evidence, Sections 246, 247 (3d ed., 1940) and McCormick on Evidence, Section 295 (2d ed., 1972).

The reason for the overt-act foundation required to let in such evidence to prove aggression is explained by Wigmore, Section 63 at pp. 489-490: “There ought, of course, to be some other appreciable evidence of the deceased’s aggression, for the character-evidence can hardly be of value unless there is otherwise a fair possibility of doubt on the point; moreover, otherwise the deceased’s bad character is likely to be put forward to serve improperly as a mere excuse for the killing * * *. See also McCormick on Evidence, Sections 193, 295 (2d ed., 1972).

Based on these authorities, the trial court committed error in failing to permit the accused to elicit from a witness evidence as to the dangerous character of the accused and in failing to permit the accused to testify as to his own knowledge of prior acts by the decedent which manifested the decedent’s dangerous character.

In the context of the facts, the series of questions to the first defense witness (Footnote 2) were to develop incidents of violence known to all members of the closely-knit family group with which both the decedent and the accused had lived in various places over the preceding year or so; while questions 2 and 3 (Footnote 2), as asked, were subject to objection as not tied in more specifically to this aim, the effect of sustaining the state’s objection was to terminate examination of this witness to this end. Question 1, however, sought to elicit evidence as to the decedent’s known dangerous character, relevant both on the aggressor issue and on the accused’s state of mind.

It is true that questions two through five (see Footnotes 2 and 3) sought to elicit testimony of specific acts by the victim. The traditional rule is that character evidence is established by general reputation, not by specific acts. La.R.S. 15:479.

Nevertheless, the evidence of specific acts is relevant not to show the victim’s character, but to show the defendant’s state of mind. See State v. McMillian, 223 La. 96, 64 So.2d 856 (1953); 2 Wigmore on Evidence, Sec. 248 (3d ed., 1940). The accused’s state of mind (his reasonable belief of his own danger) is a material issue in this case. La.R.S. 14:20.

Therefore, though prior threats and violent acts, (whether against the accused or against others) might be inadmissible as character evidence, they are admissible if defendant knew of them at the time of the offense. As the objections of the state and the rulings of the trial court show (with regard to Question 1 also), the defendant was denied the right to produce evidence of prior dangerous acts of the decedent unless directed against the accused himself or else witnessed by the latter.

The erroneous rulings had the effect of depriving him of substantial evidence in support of proving his own state of mind, that is, his reasonable belief that he himself, from what he knew or had heard of the decedent’s violent propensities, was in danger of serious bodily harm when the decedent came up to him as a result of the fight between their two children.

Harmless Error?

Alternatively, the state argues that the rulings, if erroneous, were harmless. The state points out that the accused was permitted to testify as to his own difficulties with the decedent and as to a violent incident he himself witnessed.

Nevertheless, the effect of the rulings was to deprive the accused of the opportunity to establish the known dangerous character of the decedent, insofar as resulting from a pattern of violent incidents involving others in the itinerant group besides the accused himself (whose testimony, in the absence of corroboration, the jury might regard as self-serving). As noted above, the accused had a statutory right to present such evidence. The substantial curtailment of this right cannot be regarded as harmless. See La.C.Cr.P. art. 921; Pugh, Louisiana Evidence Law 550— 65 (1974).

We must therefore reverse, since the defendant was erroneously denied the right to introduce evidence in support of his claim of self-defense. In reversing, we acknowledge that, except for this error, the state’s conduct of the trial was fair and dispassionate.

Other Assignments

Since the issues are not likely to recur, we will do no more than note two other substantial issues raised: Assignment 9, the denial of a new trial despite production of two previously unavailable witnesses who substantially contradicted trial testimony of the decedent’s wife, the state’s chief witness (see Footnote 1); and—Assignment 6, the refusal to permit a demonstration before the jury by defense counsel of the operation of the shotgun, cf. State v. Roy, 220 La. 1017, 58 So.2d 323 (1952).

Decree

For the reasons assigned, we reverse the conviction and sentence, and we remand for a new trial in accordance with law.

Reversed and remanded.

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

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice

(dissenting).

The “Context Facts” of the majority opinion states that “Etchieson came out of his trailer in anger and headed toward the children,” and “Lee’s son ran toward his father . . . .” and, further, after the defendant turned himself in to the police, he was found to have “a small reddened slashmark (scratch) on his left chest beneath a ripped shirt.”

Although this statement of fact serves to bolster defendant’s plea of self-defense, it should be noted that these facts are all in dispute. The more preponderating and credible testimony (some from disinterested witnesses) supports a finding that Etch-ieson did not come out of his trailer in anger. He headed toward his wife rather than the children; and his purpose was to get his wife back to their trailer. 'Immediately thereafter he was shot as he stood outside the trailer door. Although defendant was later observed to have a scratch on his chest and a torn shirt, these were not necessarily connected with the claim that defendant had been attacked by decedent with a knife.

The Court has accepted a version of the facts which was not established at the trial and rejected by the trial judge and jury.

Despite the erroneous acceptance of the facts concerning hostile demonstration, which neither the trial judge nor jury considered acceptable, the Court has erroneously considered objections to questions seeking to elicit evidence of the victim’s dangerous character.

Section 482 of Title 15 of the Revised Statutes permits evidence of the dangerous character of the victim in such a case when a hostile demonstration has been shown. Assuming that a hostile demonstration has been shown here, the evidence of dangerous character must be legal evidence admitted in accordance with rules established for its admissibility. When an effort is made to introduce evidence of the dangerous character of the victim and the question propounded is objected to because it seeks hearsay or other improper testimony, the objectionable character of the question is not excused by the fact that a hostile demonstration or overt act on the part of person slain has been established.

The State objected three times during the whole of Louise Ward’s testimony. Each of the objections were sustained.

First, the question was asked, “Did you ever—ever hear or ever know of any— dangerous characteristic of Lane’s?” This question solicits information received by the witness from other persons regarding specific instances of Lane’s dangerous characteristics. Dangerous character depends upon the general reputation that a man has among his neighbors, not upon what particular persons think of him. La.R.S. 15:479; State v. Harris, 258 La. 720, 247 So.2d 847 (1971). There is a noticeable lack of foundation for admission of evidence of the deceased’s general reputation in the community. And, surely, the State is not required to permit a witness to testify regarding things she supposedly heard about the victim from others. La.R.S. 15:434, 463. The evidence of dangerous character referred to in Section 482 of Title 15 must mean competent, legal, admissible evidence, not hearsay. The same is true of the question: “On October the 6th, at that time—did—had you ever heard of any relevant acts that he had committed on anyone ?”

Secondly, these two questions were objected to by the State: “Had you ever seen Lane—do anything violent?” and “Did you ever see him do anything physical to anyone?” Questions which are phrased in terms of “ever see”, “do anything” and “to anyone” open the door for witnesses to answer as they see fit. No limitations are placed on the response solicited and the opposing counsel has no way of anticipating the character or relevance of the replies. In fact, the majority opinion recognizes that these two questions are vague and indefinite and subject to objection, but held that the State did not object on that ground, stating that “the thrust of the State’s objection was that the witness could not be asked whether she had seen the decedent do any particular violent act in proof of his dangerous character.”

To the question “Had you ever seen Lane ... do anything violent?” the witness answered “Yes, sir”. The State’s attorney then objected, saying: “I’m going to object to this, also . . . this is really not proper . . . character testimony . . . from the witness. I submit it’s improper.” The trial judge then ruled “Well, it’s a very vague question, the objection will be sustained.” In my view, the “thrust” of the State’s objection was not, as this Court found it to be, relative to this question. Nor was the “thrust” of the State’s objection as the Court found it to be relative to the other question.

And I cannot agree that defendant was deprived of substantial evidence in support of proving his own state of mind from what he knew or had heard of decedent’s violent propensities. The record plainly shows that defendant was not limited in his testimony concerning what he asserted he knew of the victim’s violent propensities. He testified extensively in this regard.

The Court by a bare majority has overruled a number of recent decisions of this Court to deny this Court’s interpretation of Section 482 to mean credible and sufficient evidence. The effect of this decision is to permit a defendant to establish a hostile demonstration by his simple uncorroborated statement to that effect, or by the statement of a single witness whose credibility has been destroyed, for in either instance there is “evidence” of hostile demonstration. This opinion makes any incredible statement “evidence” within the contemplation of Section 482. I would adhere to the decisions overruled by the majority opinion.

ON REHEARING

DIXON, Justice.

Defendant was convicted of the second degree murder of Lane Etchieson, a violation of R.S. 14:30.1, and was sentenced to life imprisonment. From this conviction and sentence he appeals, perfecting nine assignments of error.

On original hearing we held the trial court erred in ruling that defendant had not laid the proper foundation for the admissibility of evidence of the victim’s dangerous character and threats against the accused. (R.S. 15:482). Rehearing was granted to reconsider this holding.

In view of the evidence adduced at trial and the 1952 legislative change of R.S. 15 :- 482, we reinstate our original opinion. A review of the transcript before us reveals the following testimony relevant to the determination whether there was “evidence” of an overt act or hostile demonstration by the victim against the accused.

State witness Brenda Walker, formerly Brenda Etchieson: At the time of the shooting, the Etchieson family had been living for about a month in the Monroe Mobile Home Trailer Park, where defendant’s family also lived. On the Sunday morning of October 6, 1974, one of the Etchieson children argued and fought with one of the Lee children. The then Mrs. Etchieson interrupted them and an argument ensued between her and defendant’s wife. During this argument Mrs. Etchieson heard her trailer door open and she turned to see her husband coming outside. Realizing he was coming to tell her to stop the argument, she turned again to face defendant’s wife. In this posture she could no longer see her husband. While still arguing with defendant’s wife, she heard a gun discharge and turned in time to see her husband grab his side and fall to the ground. Though she could not remember whether defendant was armed when her husband exited the trailer, she testified she saw no weapon in her husband’s hand. After the shot had been fired, she ran for help. In response to State questioning she testified she had never seen her husband engage in any type of struggle with defendant.

State witness Trooper B. K. Bennett: While he was on duty he was hailed by a vehicle containing several people. He stopped, got out of his car and met the occupants. Defendant, who had been in the car with his shotgun, ran toward Bennett shouting that he “thought he had shot someone.” Bennett took the shotgun from defendant, brought him inside the nearby police station and questioned him. Though defendant was hysterical and disheveled, he told Bennett where the shooting had occurred. Bennett noticed defendant had a “red mark” on his stomach and that his shirt was torn.

State witness Deputy Thomas Reighney: Though he investigated the scene of the shooting, Reighney did not see defendant until “past noon” at .the parish jail. Defendant did not have a shirt on, and he had a small scratch near, his chest plate.

State witness D. O. Sinclair: As Sinclair was driving by the trailer park, he heard the noise of a “backfire or shotgun” and saw a young lady running along a service road. He drove his car up to her and she told him her husband had just been shot at the nearby trailer park. He jumped out of his car and ran to the spot where Etchie-son was lying. In the first moments of his arrival, only he and another man were in the immediate area of the deceased; a crowd soon gathered. When it appeared that the gathering crowd might cause further trouble, Sinclair left to call the police. He saw no weapon in the area where Etch-ieson was lying.

State witness Elzie Woods: Woods lived in the trailer park. He was outside his trailer and heard “loud talking.” He turned to look in the direction of the disturbance and saw one of two men pump his gun (Woods demonstrated this pumping action for the jury) and fire at the other. After the shooting he went inside, phoned the police and remained inside.

State witness Mrs. Lorena Woods: She was outside her trailer, heard “loud talking,” turned to the direction of the noise, and saw one man pump his gun and shoot another. She did not approach the body; she went back inside her trailer.

Defense witness Mrs. Goldie Mae Owens: Mrs. Owens heard women arguing and went outside her trailer. She then saw Etchieson come out of his trailer yelling at defendant.-Etchieson took “two or three jumps” over to where defendant was standing and was “swinging at him with something.” Defendant shot him. After the gun discharged, Etchieson fell to the ground and dropped a knife. Mrs. Owens did not see the deceased actually strike defendant, but she did see him try. Mrs. Owens gave this same account of facts to Deputy Reighney when he interviewed her.

Defense witness Mrs. Louise Ward: While inside her trailer, Mrs. Ward heard a gun discharge and people scream. She went outside and saw Etchieson lying on the ground. Next to him was a regular, brown kitchen knife. She did not give this information to investigating officers; however, they did not question her.

Defendant Sammy Lee: After his and Etchieson’s children and wives argued, Lee approached the deceased, apologized, and told him he would spank his child for misbehaving. Etchieson grabbed defendant and tore his shirt before he could free himself. Then defendant ran to his nearby truck, got his shotgun and commenced walking back to his trailer. Meanwhile, Etchieson had returned to his trailer. As defendant proceeded, Etchieson came outside, ran toward defendant and cut him on the wrist as he sought to protect himself. Lane Etchie-son shouted to defendant that he was “going to cut [his] head off,” and defendant shot him. Defendant firmly believed that Lane intended to kill him. After the shooting, defendant ran down the road in a state of panic and eventually hailed down a state trooper.

From a review of the entire testimony taken at trial, it is clear that defendant should have been allowed to introduce evidence of Etchieson’s dangerous character and threats against defendant. After Mrs. Owens testified, it cannot be said that there was an “absence of evidence” of a hostile demonstration or “overt act.” R.S. 15:482.

The rulings complained of deprived the defendant of an opportunity to present to the jury important evidence which might have corroborated his own testimony about his state of mind at the time of the shooting.

The State also complains of the “objectionable nature” of the questions the defense was precluded from asking. We affirm our original holding, to the effect that questions which might be objectionable and inadmissible as character evidence, might, nevertheless, be admissible if relevant to prove the state of mind of the defendant. See State v. McMillian, 223 La. 96, 64 So. 2d 856 (1953).

Accordingly, our original opinion is reinstated, the conviction and sentence are reversed, and the case is remanded for a new trial in accordance with law.

MARCUS, J., dissents and assigns reasons.

SANDERS, C. J., dissents and assigns written reasons.

SUMMERS, J., dissents and assigns written reasons.

MARCUS, Justice

(dissenting).

Even assuming credible evidence of hostile demonstration or of overt act on the part of the victim, thereafter, in my opinion, only evidence of the victim’s dangerous character (general bad reputation—not specific acts) and of his threats or hostile acts against the accused (not third persons) are admissible. In my view, the questions asked here were improper and the ruling of the trial judge was correct. Accordingly, I respectfully dissent.

SANDERS, Chief Justice

(dissenting).

Assuming there was credible evidence of a hostile demonstration by the victim against the defendant, the real problem in the instant case is whether the trial judge properly rejected the questions directed to the witness and to the defendant.

The questions directed to the witness were as follows:

“Q. ‘Did you ever . . . ever hear or ever know of any . . . dangerous characteristics of Lane’s?’
“Q. ‘Had you ever seen Lane . . . . do anything violent?’
“Q. ‘Did you ever see him do anything physical to anyone ?’ ”

The questions to the defendant were as follows:

“Q. At the time of the incident, ‘had you ever heard of any violent acts he had committed on anyone?’
“Q. ‘Do you know of any overt act that Lane Etchieson had ever committed towards anyone ?’ ”

The statutes governing proof of dangerous character provide:

LSA-R.S. 15:482:
“In the absence of evidence of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible.”
LSA-R.S. 15:479:
“Character, whether good or bad, depends upon the general reputation that a man has among his neighbors, not upon what particular persons think of him.”

LSA-R.S. 15:479 embodies a long-established rule that dangerous character must be proved by general reputation and not by specific acts. State v. Ricks, 170 La. 507, 128 So. 293 (1930); State v. Sharpe, 170 La. 69, 127 So. 368 (1930); State v. Fontenot, 50 La.Ann. 537, 23 So. 634 (1898).

From the statutes, it can be plausibly argued that proof of the victim’s dangerous character is restricted to general reputation and his threats against the accused. If the statutes are so construed, neither the questions directed to the witness nor those directed to the defendant are admissible.

However, in State v. McMillian, 223 La. 96, 64 So.2d 856 (1953), this Court held that evidence of the victim’s prior assaults upon the defendant and threats communicated to him are admissible in a self-defense case to show the defendant’s state of mind. Relying solely on State v. McMillian, supra, the majority holds that the questions here represented proper interrogation. In so holding, I think the majority erred.

The three questions directed to the defense witness are inadmissibly broad and vague. They are directed to the victim’s specific acts of violence toward third parties occurring at anytime in the past, whether known to the defendant or not. The first question also calls for reports of acts of violence that the witness has heard.

It is well established that evidence of specific difficulties between the victim and third parties, at least when not shown to be related to the case, is inadmissible. State v. Fontenot, supra; 40 C.J.S. Homicide § 210, p. 1119; Wharton’s Criminal Evidence § 163, p. 298 (13th ed., Torcia, 1972).

As the trial judge noted, the questions are entirely too general and vague to determine relevance.

The questions directed to defendant raise a more difficult issue. Broadly posed, the issue is whether the victim’s specific acts of violence against third parties known to the defendant are admissible to show the defendant’s state of mind when self defense is the issue.

There is a split of authority as to whether the defendant may offer evidence of prior acts of violence on the part of the victim toward third parties, known to the defendant, to show his state of mind or apprehension of harm. See Jones v. State, 182 Md. 653, 35 A.2d 916 (1944); Dempsey v. State, 159 Tex.Cr. 602, 266 S.W.2d 875. Contra, Newsome v. State, 197 Miss. 797, 20 So.2d 708 (1945); People v. Soules, 41 Cal.App. 2d 298, 106 P.2d 639 (1940); State v. Bozarth, Mo., 361 S.W.2d 819 (1962).

In People v. Soules, supra, the California court stated:

“It is almost uniformly held that proof of the turbulent, violent and dangerous character of a person, offered for the purpose of concluding therefrom that he was more likely to have been the aggressor in an affray which resulted in his death, must be established by evidence of his general reputation for peace and quiet in the community where he resides. The same rule is usually applicable to evidence of a violent nature adduced in assault and murder cases to corroborate the defendant in his claim that he acted in necessary self-defense, believing from the circumstances of the particular case, as a reasonable man, that he was about to be assaulted and that he was likely to be killed or to receive great bodily harm.”

Louisiana has previously aligned itself with those states that exclude evidence of prior acts of the victim against third parties. State v. Boudreaux, 221 La. 1078, 61 So.2d 878 (1952); State v. Fontenot, supra.

The majority relies solely upon State v. McMillian, supra. That case, however, is inapposite, because it involved prior assaults of the victim upon the defendant, who had pleaded self-defense.

In my opinion, the majority does not adequately treat the question. Assuming that a rule of admissibility is adopted, such a rule undoubtedly has boundaries.

As the Court stated in People v. Soules, supra:

“It is, however, apparent that even if such evidence is competent, under certain circumstances, it should be received with caution for the reason that it is remote, weak, collateral to the real issue, confusing to the jury, unsatisfactory and difficult to rebut. To entitle such evidence to any substantial weight it would be necessary to adduce proof of the circumstances of each previous affray to fairly determine whether the deceased was warranted in acting as he did.”

Under a rule of admissibility, the questions addressed to the defendant here are far too general and vague. As the trial judge noted, the questions call for hearsay reports of violent acts by the victim against third parties committed at remote times and places. Such broadly phrased questions would introduce at the trial collateral issues confusing to the jury and harmful to the administration of justice. In my opinion, the trial judge properly excluded the questions.

It is to be observed that following the ruling, the trial judge allowed the defendant to testify as to the victim’s prior threats and hostility toward him. He also allowed the defendant to testify that he had witnessed an act of violence committed by the victim on his (the victim’s) wife. The record reflects that state of mind of the defendant was adequately explored.

For the reasons assigned, I respectfully dissent.

SUMMERS, Justice

(dissenting).

I dissent for the reasons assigned by me to the original opinion and for the reasons assigned by the Chief Justice to the majority opinion on rehearing.

      . However, on the motion for new trial, two witnesses were produced, allegedly not discoverable by the exercise of due diligence prior to the trial. (They were in Texas and Florida then, neither of them being in Louisiana from immediately after the shooting.) They testified respectively that (a) one saw the knife in Etehieson’s hand and saw Etchieson’s wife pick it up and throw it in the back of a pickup after the shooting, and (b) one heard Etchieson’s wife admit (contrary to her trial testimony) that her husband had cut Lee prior to the shooting.

      . Q. No. 1: “Did you ever . . . ever hear or ever know of any . . . dangerous characteristics of Lane’s?”
      Q. No. 2: “Had you ever seen Lane . do anything violent?”
      Q. No. 3: “Did you ever see him do anything physical to anyone?”
      These questions form the basis of Assignments 1-3. The second and third questions may have been subject to objection as vague, but the thrust of the state’s objection was that the witness could not be asked whether she had seen the decedent do any particular violent act in proof of his dangerous character.

      . The questions asked of the defendant himself, to which objections were sustained (Assignments 4 and 5), were:
      Q. No. 4: At the time of the incident, “had you ever heard of any violent acts he had committed on anyone?”
      Q. No. 5: “Do you know of any overt act that Lane Etchieson had ever committed towards anyone?”

      . Although the results may have been correct in some or all of the following eases, the expressions in them repeating the pre-1952 discretion of the trial court to exclude self-defense testimony are overruled as incorrect: State v. Groves, 311 So.2d 230 (La.1975); State v. Weathers, 304 So.2d 662 (La.1974); State v. Mitchell, 290 So.2d 829 (La.1974); State v. Foreman, 256 La. 999, 240 So.2d 736 (1970); State v. Cooper, 249 La. 654, 190 So.2d 86 (1966); State v. Knight, 227 La. 739, 80 So.2d 391 (1955).

      . However, as noted above, such evidence is inadmissible until the issue of self-defense has been raised by the introduction of evidence of the victim’s overt acts or hostile demonstration at the time of the offense.


source: Caselaw Access Project

license: Public Domain

text:
    William David OWENS, Jr., et al. v. MARYLAND CASUALTY COMPANY, INC.
    No. 57883.
    Supreme Court of Louisiana.
    May 11, 1976.
   In re: William David Owens, Jr., Et Al, applying for Certiorari, or writ of review to the Court of Appeal, Second Circuit, Parish of Bossier, 327 So.2d 423.

Writ denied. On the facts found, the result is correct.

DIXON, J., dissents from denial.


author: TATE, Justice. SANDERS, Chief Justice SUMMERS, Justice

text:
    STATE of Louisiana, Appellee, v. Lawrence Ted WILLIAMS, Appellant.
    No. 57018.
    Supreme Court of Louisiana.
    March 29, 1976.
    Dissenting Opinion May 14, 1976.

      Edward C. Keeton, Marrero, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Williams was convicted of aggravated burglary, La.R.S. 14:60, in that he entered a dwelling with the intent to commit aggravated battery upon Mrs. Ethel Gray. He was sentenced to twenty years at hard labor.

We find prejudicial error presented by bill No. 3 and therefore must reverse.

Prejudicial hearsay

The prejudicial error resulted from the admission, under objection, of hearsay testimony which identified the defendant Williams as Mrs. Gray’s assailant.

The incident occurred shortly after 6:30 in the morning, after the victim’s daughter, granddaughter, and great-granddaughter had left for work and school. An assailant knocked on the door, forced his way in, and beat the old lady with an iron pot.

The testimony in question was admitted during the examination of the first witness, Rosalie Smith, the victim’s daughter. Sometime after she had arrived at work, she received a call that her mother had been hurt.

She returned from her work across the river and asked her mother what had happened. By this time, her mother had gone to a neighbor’s home, and policemen had arrived at the scene and were completing their investigation. Although the time interval is not clearly shown, the daughter arrived back at the home within about two hours after the incident.

The objected-to testimony occurred when the witness, Mrs. Smith, was permitted to testify that her mother told her that her assailant had told her, “I am Bagette’s pa.”

This witness identified the defendant Williams as the father of Bagette, Mrs. Gray’s (the victim’s) great-granddaughter, as did later witnesses.

The trial court overruled the objection on the basis that it would corroborate the testimony of Mrs. Gray when she took the stand.

If indeed Mrs. Gray’s assailant had made the declaration in the course of the crime, Mrs. Gray could have testified to this out-of-court declaration under the res gestae exception to the hearsay rule. The evidence would then be of words or acts of a participant which were an immediate concomitant and part of the continuous conduct incident to the criminal act, La.R. S. 15:447, 448.

Perhaps, then, as the trial court held (see also discussion below), the witness could have testified in corroboration of the victim’s admissible account of the facts surrounding the criminal act.

The present difficulty arises, however, because in fact the victim did not so testify when she took the stand. In fact, she testified to the contrary that her assailant had identified himself as “Bertrand”. (The testimony of the investigating policeman was to the effect that Mrs. Gray told him, when he interviewed her at the neighbor’s home, that her assailant was “an unknown colored male”. Tr. 43.)

Thus, the first witness was permitted to testify that the victim told her that her assailant had stated to the victim at the time of the crime that he was the defendant. However, when the victim herself testified, she did not so testify. The witness was therefore permitted to testify to a most damaging statement allegedly made by the victim, which was contradicted by the victim herself when she took the stand.

Thus, if admissible, the admission of the witness’s statement as to the victim’s declaration, has the effect of permitting such unsworn alleged out-of-court declaration into testimony as direct evidence that the defendant was her assailant—even though the victim herself, in her sworn evidence, testified contrary to the first witness’s description of what she had allegedly said.

In Louisiana, a prior inconsistent statement of one’s own witness cannot be admitted as substantive evidence of the truth of its content. The effect of its admissibility is limited, when in fact proper foundation has been made for its admission (as was not the case here), for its effect on impeaching the credibility of the witness. La.R.S. 15:487; State v. Ray, 259 La. 105, 249 So.2d 540 (1971).

The trial court’s ruling was thus erroneous. Whatever its justification or lack of prejudice if the witness’s testimony had merely corroborated the victim’s testimony of the incident, the witness’s testimony of the out-of-court statement allegedly made to her by the victim is in effect denied by the victim herself. Thus, the effect of the ruling was to admit into evidence an unsworn out-of-court statement as truth of its own content—to admit damaging and inadmissible hearsay to the effect that the victim’s assailant had admitted to her that he was the named accused now on trial for the offense.

Res gestae exception

The State apparently concedes that the basis on which the trial court admitted the out-of-court declaration was, as it turned out, incorrect, since it did not corroborate the declarant’s sworn testimony at the trial. It now contends that the evidence was admissible under the res gestae exception to the hearsay rule. La.R.S. 15 :447,448.

However, as the statute (quoted in footnote 4) itself specifically provides, res gestae includes spontaneous words or acts of the participants at the time of the occurrence, but “not the words of the participants when narrating the events.” As early recognized, the res gestae exception permits admission of events speaking through participants, but not the testimony of participants speaking about events. State v. Charles, 111 La. 933, 36 So. 29 (1904). Thus, when the declaration by the victim is narrative rather than spontaneous, it is not considered res gestae and its admission is erroneous. State v. Jacobs, 281 So.2d 713 (La.1973).

Our Louisiana jurisprudence has consistently distinguished between admissible res gestae statements (excited utterances) and non-spontaneous narration after the event, with the latter being inadmissible as hearsay. State v. Willis, 241 La. 796, 131 So.2d 792 (1961); State v. Nash, 169 La. 947, 126 So. 434 (1929); State v. Bussey, 162 La. 394, 110 So. 626 (1926); State v. Watson, 159 La. 779, 106 So. 302 (1925); State v. Roberts, 149 La. 657, 89 So. 888 (1921); State v. Cole, 145 La. 900, 83 So. 184 (1919); State v. Charles et al., 111 La. 933, 36 So. 29 (1904); State v. Ramsey, 48 La.Ann. 1407, 20 So. 904 (1896). See also State v. Hayden, 243 La. 793, 147 So.2d 392 (1962) (inadmissible hearsay identification testimony constituted reversible error although the out-of-court assertion was made in the presence of the defendant).

The State alternatively contends that, even if the evidence of the victim’s statement was inadmissible, the evidence was harmless, because the victim herself from the stand also identified the defendant as her assailant. The decisions cited in the previous paragraph indicate that, even if other evidence (including that of the victim) identifies the defendant as having committed the crime, reversible error results when the jury is permitted to hear inadmissible hearsay that directly identifies the defendant as the guilty perpetrator. See State v. Garon, 158 La. 1014, 105 So. 47 (1925) (holding adverse to the specific contention of the State).

Additionally, however, here the inadmissible hearsay added an additional dimension of prejudice: The out-of-court declaration was to the effect that, at the time of the offense, the perpetrator had specifically identified himself as the defendant. This hearsay testimony by the first witness of the trial was to an out-of-court declaration nowhere else in evidence, and which the sworn trial evidence of the declarant indicates was not in fact made.

The admission of prejudicial hearsay in violation of its exclusion by statute is prejudicial to the substantial rights of the accused and constitutes a substantial violation of a statutory right. It is thus reversible error. See, e. g., La.C.Cr.P. art. 921; State v. Murphy, 309 So.2d 134 (La.1975); State v. Hayden, 243 La. 793, 147 So.2d 392 (1962); State v. Kimble, 214 La. 58, 36 So.2d 637 (1948); State v. Garon, 158 La. 1014, 105 So. 47 (1925); State v. Larocca, 157 La. 50, 101 So. 868 (1924).

Decree

Accordingly, for the reasons assigned, we reverse the conviction and sentence, and we remand to the district court for a new trial in accordance with law.

REVERSED AND REMANDED FOR A NEW TRIAL.

SANDERS, C. J., dissents with written reasons.

SUMMERS, J., dissents and assigns written reasons.

SANDERS, Chief Justice

(dissenting).

As the majority holds, an item of hearsay evidence entered the record in the present case. Every item of hearsay, however, does not upset a conviction. Under both state and federal law, the ensuing question is whether or not the admission of the testimony is reversible error. See LSA-C.Cr.P. Art. 921; Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); Favre v. Henderson, 464 F.2d 359 (5th Cir. 1972). If a consideration of the entire record reflects that the ruling was harmless beyond a reasonable doubt, the conviction should be affirmed. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

After reviewing the record, I have concluded that the independent evidence of guilt is overwhelming. Hence, I would hold that the error is harmless and affirm the conviction.

For the reasons assigned, I respectfully dissent.

SUMMERS, Justice

(dissenting).

A bill of information filed on October 19, 1972 charged that Lawrence Ted Williams committed aggravated burglary on September 28, 1972, by entering, without authorization, an inhabited dwelling at 1401 Lincoln Drive in Marrero, Louisiana, where Ethel Gray was present, with intent to commit a felony therein, and that he did then commit a battery upon Ethel Gray with an iron pot, a dangerous weapon.

Defendant was tried on September 6, 1973, and the jury returned a unanimous verdict of guilty. He was committed to the Department of Corrections and sentenced to serve twenty years at hard labor.

Rosalie Smith was called and examined as a witness for the State. The victim, Ethel Gray, was her aged mother living with her at 1401 Lincoln Drive in Mar-rero. On the morning of September 28, 1972 when Rosalie Smith left her house for work, defendant was in his car parked across the street. Soon after arriving at work she was recalled to her house and upon arrival found her mother badly injured, bleeding and in need of hospitalization. She found blood “from my mother’s bedroom all the way out the kitchen and the driveway.” Her mother had been struck with an aluminum pot by a burglar who had gained access to the house. When the offender left he took a television set. Rosalie Smith was asked by the prosecutor :

“Q. Did your mother tell you who did it?
A. She didn’t tell me who, because she didn’t know whom. She never see him in her life.
Q. Did she tell you anything he said?
A. She told me when I asked her what did the man—”

Defense counsel objected that the question sought to elicit hearsay evidence. The trial judge found that Ethel Gray would later testify as a witness and the response sought from Rosalie Smith was designed to corroborate the later testimony of Ethel Gray. Accordingly he overruled the objection and this bill was reserved.

Rosalie Smith then testified that her mother told her that her assailant was “Bagette’s pa.” Bagette is Rosalie Smith’s granddaughter and the victim’s great-granddaughter. According to Rosalie Smith’s testimony, her daughter had lived with the defendant at some time in the past and was believed to be the father of a child of that union called Bagette. Thereafter Ethel Gray testified, but she did not say that her assailant told her he was “Bagette’s pa”. Instead she said the assailant told her, “I am Bertrand,” apparently an assumed name.. Therefore, Ethel Gray's testimony was not in this respect corroborated by Rosalie Smith. However, Ethel Gray did positively identify the defendant in court.

The State contends that Ethel Gray’s statement that her assailant was “Bagette’s pa” was part of the res gestae. There is no direct evidence of the time lapse between the burglary and assault on Ethel Gray and Rosalie Smith’s return to her home at which time Ethel Gray said her assailant told her he was “Bagette’s pa”. The record does show, however, that Rosalie Smith worked across the river. She left home that morning between six and 6:30 o’clock to arrive at work at seven. Shortly after seven the police received a call to go to the scene of the crime. This fact, together with the fact that defendant was parked across the street from the scene of the crime when Rosalie Smith left for work, strongly indicates that the crime occurred shortly after Rosalie Smith departed for work. While at work Rosalie Smith received a call from her neighbor and she returned to her house forthwith. The time interval was therefore not great.

“Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.” La.R.S. 15:447.
“To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act or immediate concomitants of it, or form in conjunction with it one continuous transaction.” La.R.S. 15:448.

In this State the rule of res gestae has been broadened rather than restricted. This tendency has been favorably regarded by the courts because the ultimate object to be attained by the introduction of any evidence is the ascertainment of facts; it is a reasonable means of arriving at the truth. Therefore, acts and declarations have been brought within the doctrine if they are connected with, and grow out of, the act or transaction in such a way as to form one continuous transaction, provided they in some way illustrate, elucidate, qualify or characterize the act, and, in a legal sense, are a part of it. State v. Curry, 263 La. 997, 270 So.2d 484 (1972); State v. Raymond, 258 La. 1, 245 So.2d 335 (1971); State v. Andrus, 250 La. 765, 199 So.2d 867 (1967); State v. Reese, 250 La. 151, 194 So.2d 729 (1967).

In State v. Curry, supra, this court stated, “. . . incidents offered as res gestae may be separated from the act by a lapse of time more or less appreciable, provided they grow out of and are in a legal sense immediately connected with the litigated act.” Testimony of an abortion victim’s landlady was held to be res gestae in State v. Reese, supra. There the victim had told her that she was pregnant and that she had found someone to perform an abortion. Then, on the following day, the victim told her that the abortion had been performed. Again in State v. Morgan, 296 So.2d 86 (La. 1974), this Court held that testimony of the prosecutrix’s neighbor that she heard the prosecutrix say that she had been raped by her stepfather was admissible as part of the res gestae. The statement was admitted even though it was made after the prosecutrix had time to clean up and get dressed. State v. Hills, 241 La. 345, 129 So.2d 12 (1961), allowed testimony of the victim’s landlord regarding a statement made by the victim to him more than a half hour after the attack.

Considered in the light of the quoted statutes and the cases interpreting those enactments the facts of this case do fall within the broad application of the rule of res gestae. When Rosalie Smith returned to find her mother still in a state of shock and bleeding from the assault, she appeared upon the scene of an “immediate concomitant” of the criminal act. The wounded and still suffering victim’s condition accompanied and was collaterally connected with the criminal act; her statements under these circumstances at a time shortly following the actual assault were therefore part of the res gestae. It should be noted also that defendant’s statement given by Ethel Gray to Rosalie Smith was itself a part of the res gestae uttered by defendant during the actual commission of the crime. Proof of such an utterance by the perpetrators of the crime while it was happening is always admissible as part of the res gestae.

It is furthermore relevant to mention that Ethel Gray’s statement to Rosalie Smith was in fact corroborated. Later in the trial Bonnie Hunter testified without objection that her sister said the description given to her by a neighbor of the man who came out of Rosalie Smith’s house carrying a television set shortly after Ethel Gray was assaulted, and the description she gave of the car he drove, indicated that defendant was the perpetrator of the crime.

I respectfully dissent.

      .See testimony of Mrs. Smith at Tr. 19-20:
      “Q Did she tell you anything he said?
      “A She told me what I asked her what did the man—
      [Defense counsel: “Objection; hearsay.” The Court in overruling the objection: “She [the mother] is going to be here as a witness. . . . It is a matter of corroboration.”]
      “Q What did she tell you?
      “A I asked her what did the man say, and she said that when he came in, he say T am Bagette’s pa.’
      “Q Would you repeat that?
      “A T am Bagette’s pa.’
      “Q Who is Bagette?
      “A My granddaughter.
      “Q Is that your granddaughter’s daughter?
      “A Yes.
      “Q And is that the daughter, who has been living with this man [i. e., the defendant] ?
      “A That’s right.”

      . While corroborative testimony may be admissible, La.R.S. 15:485, such corroborative testimony is usually not admissible until the witness has been sworn and his credibility has been attacked, La.R.S. 15:484. See, e. g., State v. Watson, 159 La. 779, 106 So. 302 (1925).

      . See testimony of the victim, Mrs. Gray at Tr. 28:
      “When I opened the door, he stepped up in the door. I said, ‘Who is you? What are you doing here?’ I said, ‘What you want?’ He said T am Bertrand.’ I said ‘Bertrand. I never seen Bertrand in m.y life.’ Well, he said, T am Bertrand,’ I said ‘What you want?’ ”

      . La.R.S. 15:447: “Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.” (Italics ours.)
      La.R.S. 15:448: “To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.”


text:
    STATE of Louisiana v. Gloria SANFORD and Yvonne Sanford.
    No. 57898.
    Supreme Court of Louisiana.
    May 11, 1976.
   In re: Gloria Sanford and Yvonne Sanford applying for writ of certiorari.

Writ denied. The showing made is insufficient to warrant the exercise of our supervisory jurisdiction.

DIXON, J., is of opinion the writ should be granted as to Gloria and denied as to Yvonne.


text:
    William H. HENDERSON v. ZONING APPEAL BOARD OF JEFFERSON PARISH.
    No. 57876.
    Supreme Court of Louisiana.
    May 11, 1976.
   In re: William H. Henderson applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 328 So.2d 175.

Writ denied. The judgment of the Court of Appeal is correct.

SUMMERS, J., concurs in the result, being of the opinion the result is correct.


author: DENNIS, Justice. SUMMERS, Justice

text:
    BECKER AND ASSOCIATES, INC. v. LOU-ARK EQUIPMENT RENTALS CO., INC. LOU-ARK EQUIPMENT RENTALS CO., INC. v. BECKER AND ASSOCIATES, INC.
    No. 56623.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    Dissenting Opinion May 14, 1976.
    Rehearing Denied March 26, 1976.

      Nathan Greenberg, Greenberg & Dallam, Gretna, for applicant Lou-Ark.
    Eugene R. Preaus, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for respondent Becker & Associates.
   DENNIS, Justice.

These consolidated cases present a suit by a lessee of heavy equipment against its lessor for the specific performance of an option to purchase the equipment and a suit by the lessor to recover the movable property and accrued rental from the lessee.

Lou-Ark Equipment Rentals Co., Inc., applicant herein, by a written agreement dated July 13, 1971, leased to respondent, Becker and Associates, Inc., a 45 ton crawler crane at a rental of $2,000.00 per 30 calendar days plus sales tax, for a minimum lease period of 30 days. On the same date the parties executed and made part of the lease a written agreement granting Becker the option to purchase the equipment, which provided that 99% of the rental paid for the crane would apply toward the purchase price and that the value of the equipment would be determined “by an independent appraiser or by mutual agreement.”

Becker paid Lou-Ark rental in. accordance with the terms of the lease from July, 1971 through February, 1973, totaling $41,-200.00 including taxes. In January and February, 1973, Becker informed Lou-Ark of its desire to exercise the option. At the request of Becker the value of the crane was estimated by two different appraisers, both of whom determined it was worth $40,000.00. It is disputed whether Lou-Ark agreed to the designation of either appraiser as an “independent appraiser” for purposes of determining the value of the property under the option. When Becker called upon Lou-Ark to sell the crane for the price of $40,000.00, Lou-Ark refused.

Becker filed suit against Lou-Ark for a declaratory judgment of ownership and alternatively for specific performance. It deposited $412 including taxes into the registry of the court as the balance between the appraisal value of the equipment and 99% of the amount it had paid Lou-Ark as rent. Lou-Ark brought suit against Becker seeking to be declared owner of the crane, for its return and for $12,000.00 accrued rent, as well as future rent, interest and attorney’s fees.

The two suits were consolidated for trial; the district court rendered judgment for Lou-Ark, and Becker appealed. The court of appeal reversed, set aside the lower court decrees and rendered judgment for Becker ordering specific performance of the option to purchase. 314 So.2d 553 (La.App. 4th Cir. 1975). Upon application of Lou-Ark, we granted writs. 318 So.2d 55 (La.1975).

Lou-Ark contends that the option agreement was null and void because it was without a fixed or definite term as required by Article 2462 of the La. Civil Code, which, in pertinent part, provides:

“* * *
“One may purchase the right, or option to accept or reject, within a stipulated time, an offer or promise to sell, after the purchase of such option, for any consideration therein stipulated, such offer, or promise can not be withdrawn before the time agreed upon; and should it be accepted within the time stipulated, the contract or agreement to sell, evidenced by such promise and acceptance, may be specifically enforced by either party.”

In enforcing this provision we have held that perpetual options which would take property out of commerce are prohibited because they violate the doctrine of ownership established by the La. Civil Code. Bristo v. Christine Oil and Gas Co., 139 La. 312, 71 So. 521 (1916); see also Delcambre v. Dubois, 263 So.2d 96 (La.App. 3rd Cir. 1972); Clark v. Dixon, 254 So.2d 482 (La.App. 3rd Cir. 1971).

The option agreement itself sets forth no time limit within which the offer to sell the property must be accepted. Nevertheless, the court of appeal held that the option stated a time within which it was to be exercised, because, being part of the same agreement as the lease, Becker could elect to exercise its right of option to purchase the leased property at any time during a thirty-day rental period for which the rent had been paid.

Had the lease contract provided a definite term we would agree with the decision below, because the failure to expressly state a termination date in an option agreement made part of a lease having a definite term does not render the option invalid if the time for its acceptance is necessarily limited by the term of the lease. Kinberger v. Drouet, 149 La. 986, 90 So. 367 (1922); Smith Enterprises Inc. v. Borne, 245 So.2d 9 (La.App. 1st Cir. 1971). However, upon careful inspection, we find that the lease between Becker and Lou-Ark was not for a definite term but was dependent upon the will of the parties for its duration.

The lease instrument provided for a “rental rate” of $2,000.00 plus tax “per 30 calendar days.” The “rental period” was described as beginning on July 13, 1971, and ending when the equipment “is received by the Owner at their warehouse . or ... on the date Bill of Lading is issued covering the return of the Equipment to the Owner. Additionally, a “termination of agreement” clause provided that the lessor shall have the right to take possession of the equipment five days after the lessee’s default on any payment. Therefore, the parties agreed to methods by which the lease could be terminated, but they did not agree upon a definite term for the lease.

Because no time for the duration of. the lease was agreed on by the parties, it was subject to termination in accordance with La.C.C. art. 2686, which provides:

“The parties must abide by the agreement as fixed at the time of the lease. If no time for its duration has been agreed on, the party desiring to put an end to it must give notice in writing to the other, at least ten days before the expiration of the month, which has begun to run.”

Thus, in addition to the methods provided by the lease contract, the lease could be terminated by either party by the giving of notice in writing to the other, at least ten days before the expiration of the month.

The court of appeal apparently concluded that by operation of law a new 30-day lease was confected each month. Thus, the court reasoned that the option to purchase terminated upon the expiration of each 30-day rental period and was effectively limited thereby. We find, however, that the premise of the court of appeal decision was erroneous and at variance with the jurisprudence concerning month to month leases.

Under La.C.C. art. 2686, the presumed continuance of a lease by operation of law from month to month, resulting from holding over without notice, is called a “tacit reconduction.” The effect of such a continuance is not to constitute a new lease each month or even to renew the old one, but rather to continue the original lease. Weaks Supply Co. v. Werdin, 147 So. 838 (La.App. 2d Cir. 1933). Cf. Governor Claiborne Apartments, Inc. v. Attaldo, 256 La. 218, 235 So.2d 574 (1970). Accordingly, the month to month lease in the instant case did not terminate each month but endured continuously until put to an end in the manner provided by La.C.C. art. 2686 or by the lease contract.

Since there were no provisions in either the lease or the option itself limiting its duration, the option was null and void for failure to stipulate a time period for the acceptance of the promise to sell. La. C.C. art. 2462.

Accordingly, the judgment of the court of appeal must be set aside. However, we cannot fully reinstate the trial court’s judgment because its conclusion that Lou-Ark is entitled to enforcement of the lease contract, including an award of attorney’s fees, was also erroneous. It is well settled under our Civil Code and the jurisprudence interpreting it that when one of the parties errs in perceiving the very nature of the contract into which he enters, the contract cannot be enforced against him. La.C.C. art. 1841 states:

“Error as to the nature of the contract will render it void.
“The nature of the contract is that which characterizes the obligation which it creates. Thus, if the party receives property, and from error or ambiguity in the words accompanying the delivery, believes that he has purchased, while he who delivers intends only to pledge, there is not [no] contract.”

See also Baker v. Baker, 209 La. 1041, 26 So.2d 132 (1946); Green v. McDade, 17 So.2d 637 (La.App. 2nd Cir. 1944). In both cases, the courts refused to enforce a purported contract of sale against an owner of property who intended only to offer it as security.

As stated at Pothier, 1 Obligations, Part 1, Art. III, § 1, n. 17, the source of our present Civil Code art. 1841:

“Error is the greatest defect that can occur in a contract, for agreements can only be formed by the consent of the parties, and there can be no consent when the parties are in an error respecting the object of their agreement. * * *
“There if a person intends to sell me anything, and I intend to receive it by way of loan or gift, there is neither sale, no loan, nor gift. If a person intends to sell me a thing, and I intend to buy or receive a donation of another, there is neither sale nor donation.”

In the instant case, Becker’s officers mistakenly believed that it was entering into a rental agreement with an option to purchase. In fact, the option was null for lack of a specified time within which to accept the offer of sale. We are convinced from the evidence that Becker would not have entered the transaction if its officers had been aware that the contract consisted of a mere lease of the equipment. Thus, Becker erred as to the nature of the contract, and the lease agreement should not be enforced against it.

However, the principle of unjust enrichment, embodied in our Civil Code art. 1965 requires that Lou-Ark be compensated in the amount of the fair rental value of the equipment for the period it was in Becker’s possession. Accordingly, it is necessary that we remand the case to the trial court to determine precisely this value.

The court of appeal judgment is set aside and the case is remanded to the trial court for further proceedings consistent with the views expressed herein.

Reversed and remanded.

SANDERS, C. J., concurs in the result only.

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice

(dissenting).

I dissent for the reasons assigned by the Court of Appeal. See 314 So.2d 553.


text:
    Mrs. Willie Lee MILLSAPS v. AETNA CASUALTY & SURETY COMPANY.
    No. 57865.
    Supreme Court of Louisiana.
    May 11, 1976.
   In re: Mrs. Willie Lee Millsaps applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 327 So.2d 554.

Writ denied. On the facts found by the Court of Appeal, there is no error in the judgment complained of.

DIXON, J., concurs in the denial for the reasons stated in the concurring opinions in the court of appeal.