author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Ervin Joseph LOUIS.
    No. 56476.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Rehearing Denied Dec. 5, 1975.
    John M. Lawrence, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Edward M. Leonard, Jr., Bernard E. Boudreaux, Jr., Walter J. Senette, Jr., Asst. Dist. Attys., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Ervin Joseph Louis was charged with armed robbery of a night clerk at a motel in St. Mary Parish on August 10, 1972. He was tried by jury, convicted of armed robbery, and sentenced to serve eighteen years at hard labor without benefit of parole, probation or suspension of sentence but with credit for time served. Defendant’s attorney reserved only one bill of exception at trial and did not move for an appeal. Defendant was granted an out-of-time appeal by this Court, after present retained counsel began to represent him.

Defendant urges reversal of his conviction and sentence on the basis of the bill of exception which was reserved at trial after a motion for mistrial was denied by the trial judge. Defendant’s trial counsel had moved for a mistrial after learning that one of the jurors had left the jury room during a recess in the trial, and prior to the court’s charging the jury. When examined about the incident, the juror testified that he didn’t know he was supposed to remain with the jury at all times, and that he had simply spoken with his wife and fifteen-year-old son during the recess. He said that he had not discussed any of the facts of the case with them, and had merely asked how they were enjoying the trial, their court house visit being a new experience for them. He was not questioned more specifically about what was said in the conversation, either by him or by his wife or son.

Defense counsel has in brief argued that the juror’s brief separation from the jury and his short family conversation violated La.R.S. 15:394, which he claims provides that:

“From the moment of the acceptance of any juror until the rendition of verdict or the entry of a mistrial, as the case may be, the jurors shall be kept together under the charge of an officer in such a way as to be secluded from all outside communication.”

In fact, counsel is mistaken, for following the phrase “from all outside communication” in R.S. 15:394 was the following exception which would have applied to defendant’s case:

“ . . . provided that in cases not capital the judge may, in his discretion, permit the jurors to separate at any time before the actual delivery of his charge.”

At any rate, R.S. 15:394 is not the law today. In 1967 the provision was replaced by Article 791 of the Code of Criminal Procedure which merely describes how a jury is sequestered:

“A jury is sequestered by being kept together in charge of an officer of the court so as to be secluded from outside communication.
In capital cases, after each juror is sworn he shall be sequestered.
In noncapital cases, the jury shall be sequestered after the court’s charge, and may be sequestered at any time upon order of the court.”

Article 791 was in effect at the time of defendant Louis’ trial. In a noncapital prosecution, seclusion is required of a sequestered jury, but sequestration, unless ordered by the court, is not required except after the court’s charge. The record before this Court does not reflect that the jury at Louis’ trial was in fact sequestered. We assume that the jury was not sequestered since the state in brief contends that it was not, and defendant did not in brief or otherwise contest that allegation.

Since the defendant was on trial for armed robbery which is not a capital crime, there was no requirement under Article 791 that the jury be sequestered throughout the trial. The conversation at issue took place at a recess during the taking of testimony, before the judge’s charge to the jury. There was no prohibition, therefore, against allowing these jurors in a noncapital case to separate at a recess prior to the judge’s charge since they had not been sequestered.

Although separation of a juror in these circumstances did not violate Article 791, a mistrial would nonetheless be in order (“shall be ordered”), under Article 775 of the Code of Criminal Procedure “when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial.”

Examining what occurred at defendant’s trial in light of the mandatory mistrial requirement of Article 775, we do not find the occurrence prejudicial, much less so prejudicial as to preclude defendant’s obtaining a fair trial. This juror could not have been adversely influenced by the brief, non-relevant conversation with his wife and son.

In the case of State v. Traylor, 311 So. 2d 847, 850 (La.1975), this Court held that:

“It is only when there is a substantial likelihood that the extra-judicial communication will influence one or more of the jurors in a verdict that a mistrial is warranted.”

A mistrial was not warranted. The trial judge properly denied defendant’s motion for a mistrial.

For the above reasons, the conviction of defendant is affirmed.

      . La.R.S. 15:394 was repealed by Act 310 of 1966, Section 5 enacting the Code of Criminal Procedure and repealing certain statutes of Title 15 of the Revised Statutes.


source: Caselaw Access Project

author: MARCUS, Justice. SUMMERS, J.,

license: Public Domain

text:
    Maxine McINNIS v. FIREMAN’S FUND INSURANCE COMPANY.
    No. 56470.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Rehearing Denied Dec. 5, 1975.

      Charles W. Franklin, Franklin, Moore & Walsh, Baton Rouge, for defendant-respondent.
    Darrell D. White, White & May, Baton Rouge, for plaintiff-applicant.
   MARCUS, Justice.

Mrs. Maxine Mclnnis filed this suit against Fireman’s Fund Insurance Company, seeking damages for personal injuries suffered by her when a concrete troweling machine fell on her foot. The accident occurred when her husband, Sam Mclnnis, was loading the machine on a pickup truck. Defendant is the insurer of the employer of plaintiff’s husband. She alleges that the accident was caused by the sole negligence of her husband. Defendant denied negligence on the part of Sam Mclnnis and alternatively pleaded the affirmative defenses of assumption of risk and contributory negligence. After trial on the merits, plaintiff’s suit was dismissed. On appeal, the judgment was affirmed. 312 So. 2d 184 (La.App. 1st Cir. 1975). Upon plaintiff’s application, we granted certiorari. 314 So.2d 739 (La.1975).

FACTS

Sam Mclnnis, plaintiff’s husband, was employed as a field superintendent for Lurgi-Knost, Inc. A concrete troweling machine, weighing approximately 285 pounds, was left at the Mclnnis home by the employer for its use on a construction job in Taft, Louisiana. The next morning, Sam Mclnnis was engaged in loading the machine onto his pickup truck which he had backed into an area on the side of their apartment where the machine had been deposited. While lifting this piece of heavy equipment to his truck, it slipped from his grasp, slid off the tailgate of the truck and fell on his wife’s foot. On the evening before, Mclnnis’ immediate superi- or had asked him if he wanted help in loading the machine. Mclnnis had refused and told him that, if he needed any help, his son would assist him. The fact is that his son did not assist him in loading the machine. The only factual dispute involves whether or not plaintiff was assisting her husband in loading the machine on the truck at the time of the accident. Both Mr. and Mrs. Mclnnis were steadfast in their testimony that she was not. It is their position that Mrs. Mclnnis was on her way to put her husband’s lunch in the truck when the accident occurred. Due to the position of the truck, it was necessary for her to proceed behind her husband. It was at this time that the machine slipped out of his hands, slid off the truck and struck her foot. On the other hand, two employees of Lurgi-Knost testified that, when Mr. Mclnnis related the events of the accident to them, he stated that his wife was helping him lift the equipment onto the truck at the time of the accident.

ISSUES

The issues to be resolved in this litigation are: (1) negligence, if any, of Sam Mclnnis; (2) if he is negligent, whether plaintiff’s action is barred by either the defense of assumption of risk or contributory negligence; and (3) if plaintiff’s action is not barred by either of these defenses, the amount of damages she is entitled to recover.

I.

The troweling machine was forty-two inches in diameter, with a ring around the blade at the bottom and a handle. According to the testimony, not only was this piece of machinery heavy (about 285 pounds), but it was extremely awkward to handle. Attempting to lift this equipment to the truck without help (even assuming his wife was assisting him) constituted negligence on the part of Sam Mclnnis. According to his own testimony, while lifting the machine to the tailgate of the truck, it slipped from his grasp, slid off the tailgate and fell to the ground. There can be no serious doubt as to his negligence under the circumstances.

II.

Having concluded that Sam Mclnnis was negligent, we next consider the defenses of assumption of risk and contributory negligence. We stated in Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971):

The determination of whether a plaintiff has assumed a risk is made by subjective inquiry, whereas contributory negligence is determined objectively under the reasonable man standard. See Restatement (Second), Torts § 496 (1965) ; Symposium: Assumption of Risk, 22 La.L.Rev. 1-166.

It is fundamental that, in order to assume a risk, one must knowingly and voluntarily encounter a risk which caused him harm. Plaintiff must understand and appreciate the risk involved and must accept-the risk as well as the inherent possibility of danger because of the risk. Assumption of risk is an affirmative defense which must be specially pleaded. The burden of proving this defense is upon the defendant.

In the instant case, the defense of assumption of risk is predicated on the averment that plaintiff “knowingly and voluntarily” assisted her husband in loading a heavy piece of equipment, “the dangers and risks of which were apparent and obvious to her.”

As previously noted, the record contains a factual dispute as to whether plaintiff assisted her husband in lifting this heavy piece of equipment onto the truck. Even assuming that she was in fact assisting him, there is no proof in the record that plaintiff knew or understood the risk involved or that she accepted the risk as well as the inherent possibility of danger because of the risk. On the contrary, the record shows that Mr. Mclnnis, a former football player at LSU, had loaded similar equipment without assistance on previous occasions. Therefore, it was not obvious or apparent to plaintiff that he could not lift the machine on this occasion without incident. Under these circumstances, we have no hesitation in concluding that Mrs. Mclnnis did not assume the risk.

Contributory negligence is also an affirmative defense which must be specially pleaded. Defendant bears the burden of proving contributory negligence by a preponderance of the evidence. Contributory negligence is objectively determined under the reasonable man standard. Assuming again the plaintiff was assisting her husband at the time of the accident, we are unable to say that this conduct was unreasonable under the circumstances. Merely assisting her husband under the circumstances here presented is insufficient evidence to constitute contributory negligence on her part.

III.

In view of the foregoing, the final issue for our determination is the amount of damages plaintiff is entitled to recover for the injuries sustained by her as a result of the accident.

Plaintiff was seen by her doctor at the emergency room of the Baton Rouge General Hospital on the date of the accident (August 3, 1972). X-rays revealed a fracture of the mid-foot. A short leg walking cast was applied. Several office visits followed for patching of the cast and, on August 28, 1972, the case was removed and crutches were employed for ambulation. On September 11, 1972, she was allowed to begin full weight bearing without external support. Pain was subsiding at that time. The treating physician found plaintiff to be well-healed as of October 12, 1972 although she still complained of some swelling with excessive use of the foot. Plaintiff was discharged from his care at that time and was not again seen by him. The doctor’s report filed in the record is somewhat inconsistent. On the one hand, it recognizes a possible S-to-10% disability of the right foot because of some loss of motion and the possibility of arthritis. At the same time, however, it does not ascribe any permanent disability resulting from the injury. Plaintiff testified that she still suffers occasional pain.

The medical expenses amounted to $133.-50. Plaintiff lost wages for two months totaling $518.40. After reviewing the evidence, we consider that an award of $3,500.00 for general damages would be proper.

CONCLUSION

In sum, we conclude that the accident was caused by the sole negligence of Sam Mclnnis. Furthermore, plaintiff’s action is not barred by either the defense of assumption of risk or contributory negligence. Finally, plaintiff has successfully proven damages in the amount of $133.50 for medical expenses, $518.40 for loss of wages, and $3,500.00 for general damages.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and set aside. Judgment is now entered in favor of the plaintiff, Mrs. Maxine Mclnnis, and against defendant, Fireman’s Fund Insurance Company, in the full sum of $4,151.90, together with legal interest thereon from the date of judicial demand until paid, and all costs of these proceedings.

SUMMERS, J.,

dissents for the reasons assigned by the trial judge and the Court of Appeal on this purely factual issue involving, to a large extent, credibility of witnesses. See 312 So.2d 184 (1975).

      . Langlois v. Allied Chemical Corporation, 258 La. 3067, 249 So.2d 133 (1971) ; Pollard v. Roberts, 306 So.2d 801 (La.App. 2d Cir. 1975) ; W. Prosser, Law of Torts 447 (4th ed. 1971).

      . La.Code Civ.P. art. 1005 (1960).

      . Langlois v. Allied Chemical Corporation, supra; Pollard v. Roberts, supra.


author: BOLIN, Justice. DIXON, Justice

text:
    STATE of Louisiana v. Wilbert MATTHEWS.
    No. 56460.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Rehearing Denied Dec. 5, 1975.

      John D. Ponder, Ponder & Richardson, Roger W. Jordan, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   BOLIN, Justice.

Wilbert Matthews was charged by bill of information with armed robbery of a grocery store proprietor and was convicted after a jury trial. A sentence of fifty years’ imprisonment at hard labor was imposed by the trial court. Defendant seeks reversal relying on ten bills of exceptions reserved to various rulings of the trial court. We affirm.

On February 22, 1971, two men entered the victim’s business establishment. Each made a purchase and exited the store but remained on the sidewalk in the immediate vicinity for a few minutes. After a short time elapsed the two men reentered the store, aimed guns at the proprietor and his wife, and demanded money. The perpetrator identified as the defendant remained at the cash register with the proprietor’s wife while the other armed individual accompanied the victim to the rear living quarters of the structure to obtain more money. According to the testimony of the victim, the two men left the store and entered a taxi, in which they fled from the vicinity of the crime.

Approximately seven months later, a female who had patronized the victims’ store on the day of the robbery approached the grocer and his wife, claiming that she had seen the two men who perpetrated the robbery and knew their identities. The woman gave the grocer the names and nicknames of the two men, which names the proprietor reported to the police. Photographs of the two men obtained from the police files, along with pictures of other individuals were subsequently viewed by the victim and his wife. The defendant and the individual jointly charged in the bill of information were identified from these photographs. Some weeks later, plans to conduct a line-up in which these two individuals were to appear were thwarted. Subsequently, a photograph of a line-up conducted about one month after the commission of this offense, in which both defendant and the person charged with him appeared and in which they were the suspects sought to be identified in connection with another offense, was shown to the victim and his wife. Again, both parties identified the defendant and the man with whom he was charged. Subsequent to these identifications this case came on for trial. Shortly before trial commenced the State elected to sever the jointly charged persons and proceeded against defendant, whose conviction followed after the trial on the merits.

BILL OF EXCEPTIONS NO. 1

This bill is leveled at the trial court’s denial of a defense motion to suppress evidence. The only motion to suppress appearing in the record addresses itself exclusively to efforts to obtain suppression of pre-trial identification of defendant and exclusion of “all testimony or other evidence relating thereto.” Defendant in brief avers defense counsel intended that this bill apply to the motion to suppress evidence filed in previous cases, which cases are not further identified in brief or at any point in the record. A review of the record reveals there was no motion seeking suppression of physical evidence in the instant case. The only issue before us, therefore, is the propriety of the trial court’s action in denying defendant’s motion to suppress the pre-trial identification of defendant.

The formal motion to suppress the identification urges that the failure of police to allow defendant to be represented by counsel at the pre-trial identification fatally taints that identification and mandates its suppression. Cited in support of this contention are Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) and United States v. Wade, 388 U. S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The decisions in Gilbert and Wade are inapposite. Those cases involve pre-trial line-up identification and are not concerned with photographic identification. United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973) leads us to conclude defendant’s instant claim lacks merit. In Ash the Court concluded a criminal defendant does not have a constitutional right to have counsel present at photographic displays conducted by the government for the purpose of attempting to secure an identification of the perpetrator of a crime. The pre-trial identification sought to be suppressed in the present case was a photographic identification and, therefore, comes within the purview of the Ash holding. A review of the hearing on the motion to suppress the identification fails to reveal suggestiveness or other impermissible procedure in connection with the photographic identification. Indeed, no such illegal procedure is suggested.

This bill of exceptions lacks merit.

BILL OF EXCEPTIONS NO. 2

During the trial on the merits, the victim, in response to questions of defense counsel, sought to explain an inconsistency between his trial testimony and testimony given a day earlier at the hearing on the motion to suppress the pre-trial identification. During the pre-trial hearing, the victim had testified that he had been unable to identify either of the men who robbed him from photographs he had viewed. At trial, the victim claimed he had identified both the defendant and the other robber. On cross-examination, defense counsel sought to probe this inconsistency, and asked whether the witness had in fact stated on the earlier occasion that he had been unable to identify anyone from the photographs exhibited to him. In the course of explaining the inconsistency the witness stated he was confused with another incident and mentioned his inability to identify anyone from photographs occurred at a time when he visited the district attorney’s office. He then stated, again with reference to the occasion upon which he visited the district attorney’s office, “ * * * I also had to take a lie detector test. * * *” Defendant objected to the witness’ reference to a lie detector test, whereupon the trial court reacted favorably to defendant’s objection by admonishing the jury to disregard any remarks concerning a lie detector test. Remarking he felt the admonition inadequate to protect the rights of his client, defense counsel requested a mistrial, which the trial court refused to grant.

In brief defendant argues there was some doubt a robbery occurred at all and that the reference to a lie detector test could only lead the jury to infer the victim successfully demonstrated to the lie detector examiner that a robbery had occurred. This statement, defendant contends, severely prejudiced him.

The Court has reviewed the record and is unable to find any indication there was doubt a robbery had taken place or that the witness’ reference to a lie detector test invariably creates an inference that the victim successfully established to the satisfaction of the authorities a robbery had occurred. The fact that the reference does not compel such an inference is clearly demonstrated by the colloquy within which the reference occurred.

As noted by the trial court in its per curiam to this bill of exceptions, the denial of the mistrial is proper under La.C.Cr.P. art. 770, which sets forth the grounds which render the declaration of a mistrial mandatory. Moreover, the procedure for admonition set forth in La.C.Cr.P. art. 771 was properly followed in this instance. After a review of the record and consideration of defendant’s arguments in connection with this bill of exceptions, we are not convinced that any prejudice flowed from the witness’ gratuitous remark.

BILLS OF EXCEPTIONS NOS. 3, 4, and 5.

During the testimony of a police officer the State sought to elicit testimony concerning the officer’s attempt to conduct a line-up to determine whether the robbery victim and his wife could identify the defendant and his co-indictee as the perpetrators of the crime. During preliminary questioning the State asked the'-witness if he had succeeded in his attempt to conduct a line-up, to which question defendant objected on grounds that the inquiry was irrelevant, immaterial and would generate prejudice against the defendant. The objection was overruled and a bill reserved. Thereafter, in response to questions by the State the witness testified he was unsuccessful in his attempt to conduct a line-up which included the defendant and the person charged with him. The attempt was unsuccessful in part because the two men strenuously resisted being removed from the tier to participate in a line-up, “hollering and screaming” their objections. At this point defense counsel again objected, arguing that the testimony was immaterial, irrelevant and highly prejudicial. The trial court’s action in overruling the defendant’s objection led to the reservation of Bill No. 4. Later in the trial, during the same officer’s testimony, defendant reserved Bill No. S when the trial court permitted the State to elicit testimony regarding the general procedure for conducting line-ups. The officer who testified he conducted “the majority of line-ups” had not conducted the line-up represented by the photograph which was at that time the subject of trial inquiry.

In essence, defense counsel does no more than reiterate his trial objections of immateriality, irrelevance and resultant prejudice in his appellate brief. In its per cur-iam to these bills of exceptions the trial court addressed itself to the court’s wide discretion in determining the relevancy and materiality of evidence. The judge noted those particular objections are traditionally considered the weakest objection to the admission of evidence, and stated this evidence was considered relevant to show the jury why and under what circumstances there was a failure to conduct a police line-up. A review of pertinent testimony in connection with these bills of exceptions shows that a photograph of a much earlier line-up, in which both defendant and the co-accused appeared, was used to secure the victims’ identification in lieu of a physical line-up, because of the circumstances. The photograph of the line-up was introduced into evidence with a caption thereon showing March, 1971 as the date of the line-up. In the instant case defendant did not become a suspect until September, 1971. It appears that the officer’s testimony regarding his inability to conduct the lineup and his testimony that this inability led to instructions from a criminal district court judge to use this photograph of an earlier line-up for identification purposes was relevant and material. It tended at least to explain why a picture dated some six months before the authorities suspected the defendant of this crime was used as a means of securing identification of the perpetrators. The trial court did not err in overruling defense counsel’s objections which formed the bases of Bills Nos. 3 and 4.

Our review of the record substantiates the defendant’s contention in Bill of Exceptions No. 5 that the officer testifying about line-up procedures did not conduct the line-up reflected in the photograph. In spite of this, we find no error in the trial court’s ruling which allowed the officer to testify regarding general line-up procedures, in the absence of a defense claim that the general procedures explained to the jury were not actually used in connection with the photographed line-up. In brief defendant once again argues the officer’s testimony was irrelevant. In view of defendant’s failure to show any prejudicial effect in connection with the officer’s testimony acquainting the jury with the routine aspects of line-up procedure, we find no reversible error in the trial court’s ruling.

BILL OF EXCEPTIONS NO. 6

This bill was reserved when the trial court sustained the State’s objection to the defense counsel’s attempt to exhibit to a police officer witness the search warrant he had purportedly executed at the apartment of the defendant, for the stated purpose of determining whether that warrant was the same warrant the officer had executed.

The record indicates that defense counsel’s desire to exhibit the warrant to the officer was in no way connected with an attack on the sufficiency of the warrant or the propriety of the search and seizure purportedly conducted pursuant to its authority. Notwithstanding the trial court’s urging that counsel state the basis of his attempt to show the warrant to the officer, counsel was unable to establish what he hoped to prove by showing the search warrant was the same. In its per curiam to this bill of exceptions, the trial court maintains that under the circumstances the line of questioning was irrelevant, immaterial and not a matter for the jury’s 'concern. We find no reversible error in this ruling, in view of the fact there was no dispute over the legal sufficiency of the warrant, the search or the seizure.

BILL OF EXCEPTIONS NO. 7

During redirect examination of one of the State’s witnesses, defendant objected to a line of inquiry which he claimed should have been explored on direct examination. The court commented that the State could take the witness off the stand and then recall him in order to introduce the desired evidence. When defense counsel commented he believed that would have to be done, the court proceeded to excuse the witness and instructed the State to recall him. The witness was recalled and the defendant objected to this action, arguing that the State should not have the right to recall the witness.

In brief defendant concedes the trial court has wide discretion in recalling witnesses who have previously testified. Additionally, this Court has refused to recognize as error a trial court’s action in allowing the scope of redirect examination to exceed the scope of cross-examination, in light of the defendant’s statutory right to recross on new matters brought out on redirect examination. La.R.S. 15:281, State v. Jefferson, 284 So.2d 882 (La.1973).

There is no error presented by this bill of exceptions.

BILL OF EXCEPTIONS NO. 8

During trial, the defense objected to the introduction into evidence of numerous items of tangible evidence, stating the various items had not been connected with defendant. Defense counsel likewise objected to the State’s amendment of its verbal description of exhibit S-3, a .22 caliber gun, to include the six live .22 caliber rounds contained therein. This bill of exceptions was reserved to the trial court’s overruling of the defendant’s objection. On appeal, defendant urges only the impropriety of the admission into evidence of a .38 caliber pistol, arguing it had not been identified as being used either in the robbery for which he was being prosecuted or the robbery referred to at trial to prove system and intent.

At the time defendant entered his objection to the introduction of the tangible evidence he specifically excepted from his objection the .38 caliber pistol, stating, “ * * * we would like to obj ect to the introduction of the evidence * * * with the exception of the one .38 caliber pistol, which the statement made did identify as belonging to him.” In light of this action on the part of defendant, this bill lacks merit.

BILL OF EXCEPTIONS NO. 9

After the State had rested, defendant called as his first witness the woman whose communication of the identity of defendant and his co-indictee to the victims of the robbery led to defendant’s arrest on the charge and the instant prosecution. While, questioning the witness the defendant asked whether her husband had written her any letters from Parish Prison, apparently prior to the time that she had identified defendant and his confederate to the robbery victims. The State objected to the defendant’s question regarding letters to the witness from her husband in Parish Prison, stating that fact would be immaterial. After removal of the jury, defense counsel stated to the court that he was attempting to show bias on the part of the witness by the attempted line of inquiry. The court rejoined that defendant would have to have evidence to prove bias. Defense counsel replied he felt he could supply that necessary evidence later. The State entered a further objection, arguing that La.R.S. 15:487 prohibits a party from impeaching his own witness unless he has been taken by surprise or unless the witness is hostile, and even then the impeachment must be limited to evidence of prior contradictory statements. After hearing the State’s argument the court ruled it would not permit defendant to pursue his line of inquiry, and this bill of exceptions was reserved.

Our review of the record reveals that at the time defendant called the witness to the stand, counsel requested that he be allowed to treat her as a hostile witness and cited as a basis for his request the prior evidence which established she had identified him to the victim. The court indicated that it would require testimony to establish her as an adverse witness and had not yet heard any such testimony. Defense counsel rejoined that he felt sufficient testimony had been given, but stated that if the court did not agree, he could elicit testimony from the witness.

Defendant argues in brief that La.R.S. 15:492 establishes that the legislature wished to grant to litigants the right to establish the bias of witnesses and argues that he had the right to establish her bias, although he called her as a witness, because it was clearly shown that she was a hostile witness, and, hence, subject to impeachment under La.R.S. 15:487.

Assuming that the showing made by defendant could have warranted declaration of this witness as a hostile witness within the meaning of La.R.S. 15:487, and further assuming that the trial court’s action in foreclosing defendant’s inquiry regarding the alleged letter she received from her incarcerated husband curtailed his right to avail himself of the provisions of La.R.S. 15:492 and exhibit the witness’ bias, such error does not warrant reversal of the defendant’s conviction and sentence. The study of the entire record reveals the witness’ true involvement in this case. For example, the inordinate lapse of time between her knowledge of the identity of the perpetrators and her revelation to the victims was established to the extent that her bias was evident to the jury. Considering all of the circumstances of the case, and in view of the fact that the error, if any, does not in our opinion amount to a substantial violation of a constitutional or statutory right and is not prejudicial to defendant’s substantial rights, we find the bill lacks merit. La.C.Cr.P. art. 921.

BILL OF EXCEPTIONS NO. 10

Defendant reserved this bill of exceptions when the trial court sustained the State’s objection to defendant’s attempt to inquire whether the witness whose testimony was the subject of Bill No. 9 was under the influence of any narcotics at the time of the giving of her testimony. The trial court sustained the State’s objection, which was based on the premise that the question was yet another attempt by the defendant to impeach his own witness. In accordance with our disposition of the issue presented by Bill of Exceptions No. 9, we do not find that disallowance of this question and the information it sought, if error, is of such magnitude as to require a reversal of the defendant’s conviction.

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

DIXON, J., dissents and assigns reasons.

TATE and CALOGERO, JJ., dissent for the reasons assigned by DIXON, J.

DIXON, Justice

(dissenting).

I respectfully dissent from the treatment of Bill No. 9. There has obviously been a substantial violation of the defendant’s constitutional rights to confront witnesses against him. Defendant’s brief, not in the least way contradicted by the State, discloses that the trial judge and prosecutor prevented defendant from revealing to the jury that the witness who revealed the identity of the robbers to the victim did so because her husband, in jail, had made a deal with the police.

Defendant’s brief is quoted as follows:

“The facts concerning Carolyn Parker are as follows:

“1. Carolyn Parker was in the store just prior to the robbery. She returned after the robbery and asked for change from the Guillorys who told her they had no change'. She did not tell the Guillorys who robbed them.

“2. Carolyn Parker was arrested and remained in jail for a considerable time. Her husband, Clarence Parker, was also in jail. Both were being held for the same crimes as that of defendant is being charged with.

“3. After getting out of jail, she told the Guillorys that defendant and Isiah Smith were the ones who robbed them.

“4. Counsel for defense knew nothing of these facts until during the actual trial of this matter. Carolyn Parker was subpoenaed as a State’s witness.

“5. The State in its opening statement had stated that the State will introduce evidence from two other witnesses (besides the Guillorys) to this robbery.

“The witness was a hostile witness as far as the defense was concerned. She was held by her own testimony for three months in jail as an accessory before and after the fact in this very case (T-137). For some unknown reason she was released after 3 months. There is no doubt that bad blood existed between Clarence Parker, her husband, and Isiah Smith (the other defendant that the State had severed from this trial). Carolyn Parker admitted even though questioned by the police, she said nothing. It should be noticed on page 145 the following testimony:

“EXAMINATION BY MR. ROGER JORDAN:

“Carolyn Parker
Transcript Page 145, Line 1 thru 17
“ ‘Q. Why did you tell them, and not the police ?
‘A. Well, I wrote a letter to the police and told them about it too.
• ‘Q. When did you do that ?
‘A. A little after I got out.
‘Q. Why didn’t you tell them in the three months that you were in jail ?
‘A. Because I didn’t get—
“ ‘BY MR. WIMBERLY:
‘Your Honor, I have to object again.
“ ‘BY THE COURT:
‘Objection sustained.
“ ‘BY THE WITNESS :
‘Because I didn’t get a—
“ ‘BY THE COURT:
‘Don’t answer the question. Let’s get on to something else, Mr. Jordan.’
“The Court nor the district attorney quite obviously was going to let the witness finish her answer and it is quite obvious that a deal was made with her by the State.
“Again, when questioned about the letters her husband had written her from Parish Prison:
“EXAMINATION BY MR. ROGER JORDAN:
“Carolyn Parker Transcript Page ISO, Line 27 continued Page 151, Line 1 thru 27 and Page 152, Line 1 thru 25
“ ‘Q. Did he write you any letters from Parish Prison?
‘BY MR. WIMBERLY:
‘Objection, it’s immaterial whether her husband wrote her any letters from Parish Prison.
‘BY THE COURT:
‘What’s the purpose of the question?
‘BY MR. JORDAN:
‘Your Honor, perhaps we ought to have the jury excused for this argument.
‘BY THE COURT:
‘Very well.
‘(The jury exits the courtroom)
‘BY MR. JORDAN:
‘Your Honor, I’m trying to establish by this testimony that this witness received a letter from her husband, in which he stated that he was attempting to make a deal with the District Attorney’s office to get off of his charge by testifying against these two people, and I believe that this woman has identified these two people after three months in jail, when she had ample opportunity to identify them. She identified them after she got out for the simple reason that she’d received communication from her husband that this is what she ought to do — that she is attempting to get her husband off. Furthermore, I think—
‘BY THE COURT :
‘You have to have some evidence to prove that, sir.
‘BY MR. JORDAN:
T think I can connect it up later.
‘BY MR. WIMBERLY:
‘May I be heard?
‘BY THE COURT:
‘Alright, Mr. Wimberly, I’ll hear you.
‘BY MR. WIMBERLY:
‘Article 487 of the Revised Statute, Title 15 reads:
‘No one can impeach his own witness unless he has been taken by surprise by the testimony of such witness, or unless the witness show hostility toward him, and even then the impeachment must be limited to evidence of prior contradictory statements.’
‘It’s impermissible to do what he is trying to do. Her husband wasn’t called as a witness in this trial anyway.
‘BY THE COURT:
‘That’s it. I’m not going to permit you to go any further, Mr. Jordan.
‘Call back the jury.
'BY MR. JORDAN:
‘I object, Your Honor, and reserve a bill.
‘BY THE COURT:
‘Let the bill be reserved.’

“Defense counsel certainly had a right to ask this witness this question especially since the State had been given every opportunity throughout the trial to connect their questions to case. It should be remembered that Clarence Parker was supposedly across the street at the time of the robbery (T150, Line 24). The question referred to is ‘Did (Clarence Parker) he write you any letter from Parish Prison.’ The next obvious question that defense counsel was going to ask was what were the contents of these letters.

“The law allows leading questions to unwilling witnesses. R.S. IS :277 reads as follows, to-wit:

‘A leading question" is one which suggests to the witness the answer he is to deliver, and though framed in the alternative, is inadmissible when propounded to one’s own witness, unless such witness be unwilling or hostile.’

“It was brought out in the testimony that Carolyn Parker had told the police she knew nothing of the robbery. Certainly the fact that she also testified now she knew who committed the crime. State v. Fulmer, 1972, 263 La. 971, 270 So.2d 116. In the case of State v. Finley, Sup.1973, 275 So.2d 762, the prosecuting attorney was allowed to propound leading questions to identification to witness who was reluctant to testify and cast doubt on her own identification although he could not impeach witness, since he was not surprised at her reluctance. The instant case is somewhat different in that the defense did not know of the existence of this witness until the testimony of the Guillorys and was surprised at her very existence. Defense attorney had no opportunity to talk to the witness during the trial and find out about the existence of the letters from Sally Baptiste, a witness subpoenaed by the defense attorneys for Isiah Smith during the trial.

R.S. 15:492 reads as follows, to-wit:

‘When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admit such fact, any other witness may be examined to establish the same.’

“It is obvious that legislature in its wisdom wished to allow attorneys the right to establish the bias of witnesses and bring out their motives for testifying.

“R.S. 15:587 [15:487] reads as follows, to-wit:

‘No one can impeach his own witness, unless he has been taken by surprise by the testimony of such witness, or unless the witness show hostility toward him, and, even then, the impeachment must be limited to evidence of prior contradictory statements.’

“One of the critical questions raised by the clause ‘taken by surprise by the testimony of such witness’ is the time element. Does this mean that if defense counsel learns five minutes before calling a witness that she is going to change her testimony, prevents the attorney from being surprised by the testimony? The defense in this case was surprised by the testimony of James Guillory from the day before in regard to the identification of the photographs. Also it should be pointed out that James Guillory was very careful not to mention the name of Carolyn Parker the day before.

“That the witness was hostile is quite evident for the reason previously given (1) she probably made a deal with the State for herself and maybe her husband, (2) her husband and Isiah Smith had ‘bad blood’ between them, (3) she had been in jail for three months in regard to the crime and she stated she had nothing to do with it.

“The State’s argument is that the hostility that the witness had toward Isiah Smith could not be imputed to Wilbert Matthews. This I feel is the reason the State severed the trial in an attempt to prevent the defense for Wilbert Matthews impeaching Carolyn Parker. However, I would like to point out that two people committed the robbery and in order for Carolyn Parker to make her story stick against Isiah Smith she was more or less forced to identify the other supposed robber and since Wilbert Matthews was a friend of Isiah Smith and Carolyn Parker knew this, so it was natural that she say that the other person was Wilbert Matthews. This certainly would not be the first time a bystander was pulled into the vindictiveness between people.”

The jury was entitled to know, and the defendant was entitled to show the bias of the witness which might have affected her identification of the defendant.

       “BY [DEFENSE COUNSEL] :
      Q Mr. Guillory, you remember being in Court yesterday?
      A Right, sir.
      Q You took the stand?
      A Right.
      Q Did you take an oath yesterday?
      A Right.
      Q I remember you were asked a question about did you identify from these photographs, mug shots as you called them, that the police brought out, these people’s pictures, and you said, no, that you didn’t identify anybody, is that right?
      A That’s right, but I was confused with another incident. You see, I came to the D.A.’s Office, and I looked at photos. That is when I couldn’t identify none of these people, these two characters here. I aslo had to take a lie detector test. That’s what I thought they were referring to. That’s the photos that I couldn’t come up- with.
      “BY [DEFENSE COUNSEL] :
      I object to tlie use of a lie detector test in reference to the witness’s identification. I believe—
      “BY THE COURT:
      Yes, that is not admissible in evidence, so I’m instructing the jury to disregard any remarks concerning a lie detector test.
      “BY [DEFENSE COUNSEL] :
      May it please the Court, I’m not certain that the instruction of the Court, although certainly accurate, would be adequate to protect the rights of the defendant, and I do at this time ask for a mistrial on the basis that the witness did try and bolster the veracity of his testimony by his reference to a lie detector test.
      “BY THE COURT:
      No, I mean, you’re saying that now. I didn’t get that impression. I don’t think anybody else did for that matter.”


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Donald WILLIS.
    No. 56397.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Rehearing Denied Dec. 5, 1975.
    Jesse S. Heard, Jr., 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.
   SUMMERS, Justice.

Donald Willis and three accomplices were jointly charged with armed robbery. On March 19, 1975 the State severed the cases, and the instant bill of information was amended to charge that on January 22, 1975 Donald Willis “while armed with a dangerous weapon, to-wit: a knife, approximately 17)4 inches long, robbed Jerry Sapp, contrary to the provisions of R.S. 14-64 . . . .” Willis waived trial by jury. He was found guilty and sentenced to ten years at hard labor and committed to the Louisiana Department of Corrections. In brief he assigns one error in support of his appeal to this Court.

At 1:40 o’clock on the morning of January 22, 1975 Jerry Sapp was working as an attendant at a 7-11 Store in the city of West Monroe, Louisiana. Four black males arrived at the store in a black Mustang automobile, entered the store and looked around, made no purchases and departed. A few minutes later they returned, one of the four remained at the front of the store by the telephone booth, the other three entered the store. One of the trio produced a long knife from a sheath and threatened Sapp, while his accomplices emptied the two cash registers -of $67.93 in bills and coins. The four then fled in the Mustang which Sapp had observed at their first appearance.

Sapp reported the robbery to the police. The Mustang occupied by four blacks was observed by patrolling officers a few blocks from the scene of the robbery. It was stopped, tbe coins were observed on the floor of the car and some spilled out into the street. Sapp identified them as the robbers. A search warrant was later obtained to search the vehicle and the knife was found.

By application for bill of particulars filed prior to trial, defendant requested an answer to the following interrogatory:

“That it is necessary that your Mover know whether or not the State claims that all four Defendants charged in the Bill of Information committed the crime of armed robbery, or whether three of the Defendants committed the crime of armed robbery, aided and abetted by one Defendant, or whether two of the Defendants committed the armed robbery, aided and abetted by the other two defendants, or whether one of the Defendants committed the armed robbery, aided and abetted by the other three defendants.”

The State responded as follows:

“The defendant, Donald Willis, is charged as a co-defendant of Arenta Peevy, Larry Darnell Meadows, and Jimmy Ray Smith, with armed robbery of Jerry Sapp. Inasmuch as the State is not required to reveal its evidence, the State declines to state the actions of defendant, or any of his co-defendants, in committing the criminal offense.”

When the trial judge would not compel the State to answer further, defense counsel objected and assigned the ruling as error. His contention is that in the trial of criminal cases where there are multiple defendants, there is a possibility that one of the defendants will plead to a lesser and included charge in exchange for his testimony against the other defendants. If the State had been required in this case to furnish the particulars requested, defense counsel argues, he would know whether any of the defendants had turned State’s evidence. He points out that this did in fact occur when Larry Meadows testified against defendant and received a reduced sentence.

Although the record of the preliminary examination is not before us, in his per curiam to this assignment of error, the trial judge noted that defendant did, in effect, secure the information he desired through the testimony of Jerry Sapp at the preliminary examination. The preliminary examination was held on the same day defendant’s request for bill of particulars was filed.

In addition, this record contains answers to a motion for bills of• particulars in the case of one of Willis' accomplices advising the date and time of the offense, the address of the store where the robbery occurred, the name of the robbery victim, and a description of the weapon used in the commission of the offense.

The function of the bill of particulars is to inform the accused concerning matters which are pertinent to the charge against him, and which the trial judge in his sound discretion considers necessary in fairness to permit the accused to defend himself. The accused, however, is not entitled to the evidence upon which the State relies to establish its case. The bill of particulars cannot be used as a device for pretrial discovery of the State’s evidence. La.Code of Crim.Proc. art. 484; State v. Fresal, 278 So.2d 64 (La.1973); State v. Square, 257 La. 743, 244 So.2d 200 (1971) ; vacated in part on other grounds, 408 U.S. 938, 92 S.Ct. 2871, 33 L.Ed.2d 760 (1972); State v. Bourg, 248 La. 844, 182 So.2d 510 (1966).

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. La.R.S. 14:24; State v. Berry, 188 La. 612, 177 So. 684 (1937). A defendant accused of armed robbery, therefore, is not entitled to a bill of particulars advising whether he is charged as a principal or as an accessory. State v. Gonzales, 173 La. 947, 139 So. 15 (1932).

Furnishing bills of particulars is permissive in this case, and the trial court ruling will not be set aside unless there is an abuse of discretion. State v. Square, supra; State v. Andrus, 250 La. 765, 199 So.2d 867 (1967) ; none is shown here, and this bill has no merit.

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


author: CALOGERO, Justice. DIXON, Justice

text:
    Richard S. CALDWELL et al. v. TRANS-GULF PETROLEUM CORP. et al.
    No. 56361.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Rehearing Denied Dec. 5, 1975.

      James E. Franklin, Jr., Shreveport, for defendants-applicants.
    Graham Stafford, Schumacher, Mc-Glinchey, Stafford, Mintz & Hoffman, New Orleans, for plaintiffs-respondents.
   CALOGERO, Justice.

This case presents two legal issues for our determination:

(1) Is a fractional, undivided interest in a non-producing oil and gas lease a “security” as defined in Louisiana’s Blue Sky Law, La.R.S. 51:701 et seq.?, and

(2) Does a material issue of fact exist as to the liability of the three defendants herein who have been cast for return of the purchase price by a decision of the trial court sustaining plaintiffs’ motion for summary judgment?

Plaintiffs, Richard S. Caldwell and Nano John Turchi, filed suit against Trans-Gulf Petroleum Corporation, Hugh M. Sneed, and William J. Sneed, among others, for the return of the purchase price of fractional, undivided interests in certain non-producing oil and gas leases, and reasonable attorneys’ fees. After securing admissions and answers to interrogatories, and taking several depositions, plaintiffs moved for and. were granted summary judgment in their favor. On appeal to the Second Circuit that court unanimously affirmed the trial court’s granting of plaintiffs’ motion for summary judgment against the aforementioned parties. The trial court’s award of attorneys’ fees to plaintiffs was reversed and remanded by the Court of Appeal for further proceedings, because the court found that a genuine issue of fact existed as to the amount of such attorneys’ fees.

We granted writs upon application of the aforementioned defendants.

Securities, as defined by R.S. 51:701(1), have to be registered with the Commissioner of Securities of the State of Louisiana. Failure to comply with the requirements of registration entitle purchasers of securities to recover the purchase price paid plus 6% interest from date of payment and reasonable attorneys’ fees. See R.S. 51:715.

It is not denied that the fractional interests in the oil and gas leases purchased by plaintiffs were in fact not registered with the Commissioner of Securities for the State of Louisiana.

Defendants contend, however, that interests in oil and gas leases are not securities under the provisions of the Louisiana Blue Sky Law, R.S. 51:701 et seq., hereinafter sometimes referred to as the Act.

Two pertinent provisions of the Act which bear upon resolution of this issue are 51:701(1) and 51:701(5).

R.S. 51:701 provides as follows :

“Definitions
“When used in this part, the following terms shall, unless the text otherwise indicates, have the following respective meanings:
“(1) ‘Security’ shall include, any note, stock, treasury stock, bond, debenture, evidence of indebtedness, warehouse receipt, certificate of interest of participation, or the right to subscribe to any of the foregoing, certificates of interest in a profit sharing agreement, certificate of deposit for a security, collateral trust certificate, pre-organization certificate, pre-organization subscription, voting trust certificate, any transferable share, investment contract, or beneficial interest in title to property, profits or earnings , or in general, any interest or instrument commonly known as a ‘security,’ or any certificate of interest or participation in, temporary or interim bond, debenture, note, certificate, or receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing. ‘Security’ does not include any insurance or endowment policy or annuity contract fixed or variable, which is authorized to be written pursuant to Title 22 of the Louisiana Revised Statutes of 1950, as amended. (Emphasis provided)
“(5) 'Issuer shall mean and include every person who proposes to issue, has issued or who shall hereafter issue any security. Any person who acts as a promoter for and on behalf of a corporation, trust or unincorporated association or partnership of any kind to be formed shall be deemed to be an issuer. With respect to interests in oil, gas or mineral leases, royalties, or servitudes, any person who shall divide any interest in any such security for the purpose of sale of fractional parts thereof to the public shall be deemed an issuer.” (Emphasis provided)

Although the Act does not in the definition of “security” specifically denominate fractional interests in oil, gas, and other minerals as securities, the definition of “issuer,” as may be seen from the underscored language above, includes persons “who shall divide any interest” in oil, gas or mineral leases “for the purpose of sale of fractional parts thereof to the public.” In this very sentence the type of mineral leasehold interest with which we are concerned in this lawsuit is referred to as a security (“ . . . in any such security.”)

The apparent intent of this provision is to make the public sale of mineral leasehold rights, which have been fraction-alized by the offeror, subject to the Act, but to make the Act inapplicable both where the owner publicly sells the entirety of his interest, and where he creates a fractional interest but not for the purpose of sale to the public.

Although we agree with the result of the Court of Appeal in this case, that court relied upon the term “beneficial interest in title to property” (which is part of the definition of “security” in the Act) as including these sales of fractional working interests in non-producing oil and gas leases.

We find it unnecessary to conclude that interests in oil, gas, and mineral leases, or fractional interests thereof, fall within the language “beneficial interest in title to property, profits or earnings,” the provision in the Act’s definition of “security” most nearly encompassing those mineral leasehold interests, in light of the fact that 51:701(5) so clearly describes as a security the limited type of oil, gas, or mineral lease interest which is encompassed within the Act, namely, interests which have been divided for the purpose of sale of fractional parts thereof to the public.

Defendants argue that the inclusion in the act of the “issuer” definition of R.S. 51:701(5), with its clear reference to certain sales of leasehold mineral interests as a “security,” was merely an unfortunate drafting error and that the statute is in fact ambiguous with respect to whether mineral interests of any character were intended to be included in Louisiana’s Blue Sky Law. In this argument they rely entirely upon the fact, earlier related herein, that the definition of “security” at R.S. 51:701(1) does not specifically include the sale of interests in oil and gas leases. They point out that the Louisiana Act, which was enacted in 1940, was apparently patterned on the federal Securities Act of 1933, and that the federal statute specifically included in the definition of security “fractional undivided interest in oil, gas, or other mineral rights.” 15 U.S.C. § 77b(1) - Their argument is that patterning our state statute upon the federal act and yet ex-eluding from the definition of security an item specifically included in the federal statute is indicative of the legislative intent to exclude from the definition of security in the state act the “fractional undivided interest in oil, gas, or other mineral rights.”

While the foregoing is not, arguably, entirely without merit, we feel that the language contained in 51:701(5) defining “issuer” is much too clear to leave any serious doubt that the fractionalized, undivided interests sold by these defendants in non-producing oil and gas leases were securities, subject to regulation under the Louisiana Blue Sky Law.

We note that the Court of Appeal in its opinion did not specifically find that defendants’ public sales were of leasehold rights which had been fractionalized by defendant-offerors, but it is evident from a review of the record that such was the case. The secretary, Mr. William J. Sneed, admitted that he periodically received breakdowns of the people who had purchased fractional interests, along with the particular undivided fractional interest purchased by each such person. The president, Mr. Hugh Sneed, testified that the company was attempting to raise money by soliciting sales from members of the public, that he knew that fractional interests were being sold, and that “sometimes they got orders in the field when people would confirm then cancel out and it would place the company in a mighty embarrassing position.” It is evident, therefore, that defendants were not simply selling the entirety of acquired interests nor simply creating fractional interests for purposes other than sales to the public. But rather they were fractionalizing the leasehold rights prior to and for the purpose of sale to the public.

Alternatively defendants contend that the sales here involved are exempt transactions under the provisions of R.S. 51:705(12), and that uncontroverted facts in the record, including affidavits, indicate same.

R.S. 15:705 provides: “Exempt Transactions

(12) Any transaction pursuant to an offer directed by the offeror to not more than ten persons in this state during any period of twelve consecutive months, whether or not the offeror or any of the offerees is then present in this state, if:
(a) The seller reasonably believes that all buyers in this state are purchasing for investment, and;
(b) no commissions or other remtmeration is paid or given directly or indirectly for soliciting any prospective btty er in this state; but the commissioner may by rule or order, as to any security or transaction or any type of security or transaction, withdraw or further condition this exemption, or increase or decrease the number of offerees permitted, or waive the conditions in subparagraphs (a) and (b) with or without the substitution of a limitation on remuneration.” (Emphasis provided)

Defendants presented depositions and affidavits in connection with the motion for summary judgment to the effect that they did not direct their offer to more than ten persons in this state during any period of twelve consecutive months, that they reasonably believed that all buyers in the state were purchasing for investment, and that no commission or other remuneration was paid or given for soliciting any prospective buyer in the state.

From the depositions of William Sneed, Hugh Sneed and Clarence L. Apple, Jr., it is apparent that a commission of ten percent was paid to Apple for consummating the sale of fractional interests in the gas leases. Thus, defendants’ contention essentially is that Apple and others were not paid for soliciting prospective buyers but rather were paid for selling the fractional interests.

We agree with the Court of Appeal’s treatment of this argument and its expression that accepting as true all defendants’ contentions, at a very minimum, the commission paid on a sale is an indirect remuneration for the solicitation of a prospective buyer. See R.S. 51:705(12) (b). The transactions involved were thus not exempt under Section 705(12). That section of the statute makes exempt any transaction pursuant to an offer directed by the offeror to not more than ten persons in this state in a period of twelve consecutive months, only if the seller reasonably believes that all buyers in the state are purchasing for investment and no commission or other remuneration is paid or given directly or indirectly for soliciting any prospective buyer in this state.

The sole remaining contention by defendants is that for liability of William J. Sneed and Hugh M. Sneed to attach under the statute they must be found to be included in 51:715(B) which provides:

R.S. 57:715. Civil Liabilities
“B. Every person who directly or indirectly controls a seller liable under Subsection (A), every partner, officer, or director of such a seller, every person occupying a similar status or performing similar functions, every employee of such a seller who materially aids in the sale, and every broker-dealer or agent who materially aids in the sale are also liable jointly and severally with and to the same extent as the seller, unless the nonseller who is so liable sustains the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist. There is contribution as in cases of contract among the several persons so liable.” (Emphasis provided)

The Court of Appeal found that no dispute exists in regard to the actions of Hugh M. Sneed and William J. Sneed which render them personally liable under the provisions of 51:715(B) as amended by Act 69 of 1969, concluding that they were officers or directors of the seller who did know and/or in the exercise of reasonable care could have known of the existence of the facts by reason of which the liability is alleged to exist.

The supportive evidence showed without contradiction that these two individuals were the principal officers of Trans-Gulf Petroleum Corporation. They admitted attending all directors’ meetings and having full knowledge of all material facts surrounding solicitations and sales, as well as the non-registry of the securities involved.

For the foregoing reasons the writ heretofore issued is recalled and the judgment of the Court of Appeal is affirmed.

DIXON, J., dissents and assigns reasons.

BOLIN, J., takes no part.

DIXON, Justice

(dissenting).

I respectfully dissent.

It seems to me that the blue sky law, being penal in nature, should not be expanded to control transactions not clearly included in the definitions of “securities.”

Oil, gas and mineral leases in Louisiana are not securities. They are real rights. In Louisiana, an undivided interest in land and an undivided interest in mineral leases are, in general, treated alike.

Contrary to the view of the majority, the preferred interpretation of R.S. 51:701(1) should be that, when our act, patterned on the federal act (which included oil, gas and mineral leases in its definition of securities) omitted oil, gas and mineral leases from the definition of securities, the omission was deliberate. The reference to oil, gas and mineral leases in R.S. 51-701(5) would more logically seem to be a legislative oversight.

      . Defendants Hugh M. Sneed and William J. Sneed admitted in deposition testimony and in formal pleadings that not only were the interests purchased by plaintiffs not registered with the Commissioner of Securities for the State of Louisiana, but this fact was known to them. They contend that they were “attempting to register same.”

      . This view which we adopt has heretofore been expressed in Lyman, Securities Regulation in Louisiana — A Practical Introduction to the Blue Sky Law, 16 La.B.J. 327 (1969).

      . In fact oil, gas, and mineral leasehold interests generally are apparently not securities under the Act, as we have noted above. Rather only interests in oil, gas, or mineral leases which have been divided for the purpose of sale of fractional parts thereof to the public are securities. R.S. 51:701(5).

      . The Securities Act of 3933 made no mention at all of oil, gas, or other mineral rights. Securities Act of 1933, c. 38, § 2, 48 Stat. 74 (1933). In 1934, however, the original act was amended to include in its definition of “security” “fractional undivided interest in oil, gas, or other mineral rights.” Cli. 404, § 201, 48 Stat. 905 (1934). The 1934 Amendment also added these interests to the definition of “issuer” by means of the following language:
      “ . . . except that with respect to equipment-trust certificates or like securities, the term ‘issuer’ means the person by whom the equipment or property is or is to be used; and except that with respect to fractional undivided interests in oil, gas, or other mineral rights, the term ‘issuer’ means tlie owner of any such right or of any interest in such right (whether whole or fractional) who creates fractional interests therein for the purpose of public offering.” Id.

      . It is noteworthy, although not controlling, that the Louisiana Securities Commissioner lias in fact registered fractional shares such as are at issue here. One of the defendants in this case, Hugh M. Sneed, stated at his deposition that his corporation had attempted to register the interests through “presentation of the Schedule D to the Securities Commission of the State of Louisiana.”
      Moreover, the Attorney General has twice rendered opinions the import of which is that oil, gas, and mineral interests are not outside the purview of the Blue Sky Law. 1946-48 Op.Att’y.Gen. 1019 (1947) ; 1932-34 Op.Att’y.Gen. 530 (1934).

      . A 1972 amendment to this section of the Act, (See Acts 1972, No. 725, § 2), changes the number of offerees to whom an offeror can sell shares, while remaining exempt from regulation, from ten to twenty-five.


author: MARCUS, Justice. SUMMERS, Justice

text:
    STATE of Louisiana Freddie Lee v. WILLIAMS a/k/a Freddie Lee Reed.
    No. 56309.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Concurring Opinion Nov. 20, 1975.

      Robert P. Waddell, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Charles R. Lindsay, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Defendant, Freddie Lee Williams, a/k/a Freddie Lee Reed, was jointly charged by bill of information with his brother, Nathan Williams, Jr., for having committed the crime of simple burglary in violation of La.R.S. 14:62. Nathan Williams, Jr. pled guilty to the charge. Defendant pled not guilty and was convicted of simple burglary after trial by jury. The district attorney filed a bill of information charging defendant with being a third felony offender. La.R.S. 15:529.1. It was alleged that, in addition to the present felony conviction of simple burglary, defendant had two prior felony convictions. Defendant pled guilty to being a third felony offender and was sentenced to serve 18 years at hard labor. On appeal, defendant relies upon two assignments of error to set aside his sentence.

In the first assignment of error, defendant argues that the Habitual Offender Law, La.R.S. 15:529.1, is unconstitutional on two grounds: first, that the statute prescribes the infliction of cruel and unusual punishment in violation of the eighth amendment, and, second, that the statute punishes a “status” rather than a crime and thus subjects the offender to imprisonment without due process of law in violation of the fifth amendment.

There is no substance to this argument. Habitual offender statutes have survived constitutional attack so often that their validity is no longer a matter of serious doubt. See McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901). The constitutionality of La.R.S. 15:529. 1 has been upheld by this court several times. It is well established that the law does not make it a crime to be a multiple offender; it merely prescribes an enhanced penalty for multiple offenders. As an enhancement-of-penalty provision, the statute does not punish a status, nor does it impose cruel and unusual punishment. See State ex rel. Williams v. Henderson, 289 So.2d 74 (La. 1974); State v. Vale, 252 La. 1056, 215 So.2d 811 (1968), rev’d on other grounds, 399 U.S. 30, 90 S. Ct. 1969, 26 L.Ed.2d 409 (1970); State v. Guidry, 169 La. 215, 124 So. 832 (1929). See also Price v. Allgood, 369 F.2d 376 (5th Cir. 1966), cert. denied, 386 U.S. 998, 87 S.Ct 1321, 18 L.Ed.2d 349 (1967).

The first assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

Conceding arguendo that the Habitual Offender Law is constitutional, defendant contends that the sentence inflicts cruel and unusual punishment because its severity, in the circumstances of this case, is disproportionate to the crime that he committed.

This contention does not present an issue that this court may consider on appeal. The allegation that a sentence imposes cruel and unusual punishment as applied in the particular circumstances of the case does not present an error that is discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. Defendant has not complied with the procedure outlined in Code of Criminal Procedure articles 841 and 844, as amended, La.Acts 1974, No. 207, § 1, which require that a party must object to an error or irregularity at the time of its occurrence and must designate, in writing, to the trial court those errors which are to be urged on appeal. Consequently, the alleged error of which defendant complains in his brief is not before us for review. La.Code Crim.P. art. 920 (1966), as amended, La.Acts 1974, No. 207, § 1; State v. Shillow, 310 So.2d 103 (La.1975). This assignment of error lacks merit.

DECREE

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

SANDERS, C. J., concurs.

SUMMERS, J., concurs and assigns reasons.

SUMMERS, Justice

(concurring).

In this record the minutes of the trial court clearly demonstrate that defendant was sentenced as a third felony offender and set forth the sentence imposed by reason thereof. It is not correct to say, therefore, as the Court’s opinion does, that “The allegation that a sentence imposes cruel and unusual punishment as applied in the particular circumstances of the case does not present an error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”

Where errors of law are reflected, the minutes of the trial court, and particularly reference to the sentence or judgment, have always been considered reviewable on appeal as errors patent on the face of the record. The term errors patent on the face of the record has come to be known as “an error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” La.Code Crim.Proc. art. 920. State v. Jones, 288 So.2d 48 (La.1973); State v. Chighizola, 281 So.2d 702 (La.1973); State v. Luquette, 275 So.2d 396 (La.1973); State v. Palmer, 251 La. 759, 206 So.2d 485 (1968); State v. Cox, 243 La. 917, 148 So. 2d 600 (1963); State v. Gordon, 214 La. 822, 38 So.2d 794 (1949); State v. Cooley, 185 La. 1032, 171 So. 435 (1937).

When the error appears by a mere inspection of the minutes it is not necessary to reserve a bill of exceptions or assign error to permit its consideration on appeal, for in this situation the Court may notice the error ex propria motu, even if it is not called to our attention in brief.

Notwithstanding the Court’s erroneous statement of the law, the contention that the enhanced penalty sentence inflicts cruel and unusual punishment is not meritorious. La.Code Crim.Proc. art. 878; McDonald v. Commonwealth of Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901); Price v. Allgood, 369 F.2d 376 (5th Cir. 1966), cert. denied, 386 U.S. 998, 87 S.Ct. 1321, 18 L.Ed.2d 349, reh. denied 387 U.S. 939, 87 S.Ct. 2057, 18 L.Ed.2d 1009; State v. Vale, 252 La. 1056, 215 So.2d 811 (1968), reversed on other grounds, 399 U. S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970).

I respectfully concur.

      . On October 10, 1969, defendant pled guilty to attempted simple burglary and, on December 3, 1971, to simple robbery.

      . Defendant did not object to the constitutionality of the Habitual Offender Law in the trial court, as required by Code of Criminal Procedure article 841, nor did he follow the provisions of article 844 requiring that the written designation of those errors that are to be urged on appeal be filed with the trial court. The unconstitutionality of the statute on which the conviction is based, however, is an error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence, which we are entitled to review even though defendant has not complied with the assignment of errors procedure. La.Code Crim.P. art. 920, Official Revision Comment (d) (1966), as amended, La.Acts 1974, No. 207, § 1. See City, of Baton Rouge v. Norman, 290 So.2d 865 (La. 1974). Cf. La.Code Crim.P. art. 859(2) (1966) ; State v. Peterman, 121 La. 620, 46 So. 672 (1908).


text:
    In re Judge Joseph B. DUPONT, Sr., City Court of Plaquemine, Plaquemine, Louisiana.
    No. 56572.
    Supreme Court of Louisiana.
    Nov. 3, 1975.

      William R. Alford, Jr., New Orleans, Sp. Counsel for The Judiciary Commission of La.
    A. J. McNamara, H. D. McNamara, Jr., Metairie, for Hon. Joseph B. Dupont, Sr.
   CALOGERO, Justice.

This is a disciplinary proceeding on the recommendation of the Judiciary Commission of Louisiana pursuant to Art. 9, § 4, La.Const. of 1921, as amended by Act 661 of 1968. (See corresponding provision, Art. 14, § 16 under the La.Const. of 1974).

After a three day hearing, the commission determined that Judge Joseph B. Dupont, Sr., City Judge of the City of Plaquemine, Louisiana was guilty of willful misconduct relating to his official duty and willful and persistent failure to perform his duty.

The commission thereupon determined by a margin of 7 to 1 that Judge Dupont should be censured and that such a recommendation should be made to this Court. The commission had charged the respondent judge with five specifications of willful misconduct. They found two of the charges untrue. As to the three others, however, they made the following finding of fact:

“As to Count One, we find as a fact that you, Judge Joseph Dupont, did, on February 3, 1974, at your residence in Iberville Parish, Louisiana, did receive information from Warren Ard that two guns in your possession, to-wit: One Browning automatic shotgun and one Winchester rifle, were stolen property and that when you received this information, you then and thereafter willfully and persistently failed to report that information to proper authority.
“As to Count Two, we find as a fact that on or about February 8, 1974, at your residence in Iberville Parish, Louisiana, you transferred two guns, to-wit: One Browning automatic shotgun and one Winchester rifle to Warren Ard for a consideration, after having been advised by the said Warren Ard that the two guns were stolen property, when your official duty required you to report your possession to the proper authorities.
“We also find as a fact, in regard to Count Five, that Joseph Dupont, Sr., in receiving information from Warren Ard, on the 3rd day of February, 1974, that two weapons; namely, a Browning automatic shotgun and a Winchester rifle in his possession were stolen, did, after approximately a five-day delay, transfer these weapons to Warren Ard under circumstances designed to keep the transaction secret even to the extent of wiping the weapons for fingerprints.
“We further found as a fact that Judge Dupont did continue to willfully continue to possess and conceal said weapons for a period of about five days, knowing that such possession and concealment may have been a criminal act and that you did relinquish possession of these weapons only upon receipt of a sum of money.”

The occurrence which gave rise to the charges and commission findings was as follows. Respondent, then as now a practicing lawyer, was elected City judge, City Court of Plaquemine, a parttime judicial position and took office on December 8, 1973. Serious political differences existed between respondent and the Sheriff of the Parish of Iberville, which were aggravated by the Sheriff’s refusal to honor release bonds set by Judge Dupont. A Contempt Rule was filed by the respondent against Sheriff Ourso in response to which the Sheriff instituted quo warranto proceedings questioning the respondent’s authority to hold office.

In late January and February, 1973 while respondent was daily appearing in East Baton Rouge district court defending the quo warranto proceeding, he was approached by Warren Ard, a former client of his, who was then, unbeknown to Du-pont, cooperating with the Sheriff in an undercover investigation. The respondent judge had purchased a rifle and a shotgun three or four years before February 1974, from Earl Medlock, another former client. Ard informed respondent that the guns he had purchased from Medlock were stolen, and that it was essential for him, Ard, to recover the guns and turn them over to the sheriff’s department in order to avoid criminal sanctions for certain other of his activities.

The respondent denied knowing that the guns had been stolen, attempted to reassure Ard, and agreed to discuss the matter with him further. Respondent informed Ard that he did not know whether one of the guns was available.

Within the next week, after several conversations with Ard, the respondent fixed a price on the guns and agreed to sell them to Ard, who continued to urge his desperate need for possession of the weapons in order to avoid incarceration.

Ard paid the respondent $280.00; respondent then directed Ard to the guns in the back yard of his home, on a woodpile. Throughout the week the respondent had advised Ard to employ a clandestine method in turning the guns over to the authorities in order to avoid Ard’s being incriminated.

Shortly following sale of the guns respondent was arrested and charged with receiving stolen goods.

Following respondent’s arrest a preliminary hearing was held in the Eighteenth Judicial District Court for the Parish of Iberville. Upon a finding that there was not probable cause to hold him, the defendant Judge was ordered released. He was not thereafter tried. He has not been convicted of any criminal offense arising out of this incident.

Respondent’s contention was that he did not know at the time he received the guns in question that they were stolen, that even after repeated advice from Ard, he was not certain that they were, that during the period 2/1/74 to 2/8/74, while he was communicating with Ard, an attorney-client relationship existed between him and Ard; that receiving an amount of money equal to the fair value of guns, would not only reimburse him his out of pocket costs (for guns which belonged to him either because not stolen, or by virtue of a three year acquisitive prescription on movables), but would also obviate the possibility of Ard’s attempting to profit financially by the transfer.

The commission’s findings were in part at variance with these contentions. The commission concluded that Judge Dupont received information that the guns in his possession were stolen in February 1974 and willfully and persistently failed to report that information to the proper authorities ; that he transferred the guns after having been advised that they were stolen property when his official duty required him to report their possession to the proper authorities; that he transferred the weapons to Warren Ard under circumstances designed to keep the transaction secret even to the extent of wiping the weapons for fingerprints; that he did possess and conceal the weapons for a period of five days knowing that such possession and concealment may have been a criminal act; and that he did relinquish possession of the weapon only upon receipt of a sum of money.

Upon a review of the transcript of the commission hearing, including tapes of the Ard-Dupont conversations, we agree with the commission’s factual findings.

Accordingly, we find no merit in respondent’s contention that the evidence does not “support the commission’s findings or justify its recommendation,” although we are, like the commission, cognizant of all the attendant and peculiar circumstances surrounding Judge Dupont’s conduct during the first week of February, 1973.

Respondent urges two other errors in opposing the recommendation of the commission. The first is that the commission should have permitted prehearing discovery by depositions and interrogatories. The second is that the constitutional grant of authority to the Judiciary Commission does not permit the disciplinary action recommended by the commission.

As to the first, the commission was of the opinion that granting prehearing discovery was a matter solely within its sound discretion. In argument before us, the respondent does not demonstrate any prejudice to him because of the lack of prehearing discovery. He was permitted access to the tape recorded conversations which formed the basis of the accusation against him. The respondent was informed that if at the conclusion of the hearing he felt that he had been surprised by any evidence adduced, he would be allowed time to produce additional evidence. No such request was made, nor has respondent applied for permission to file additional evidence pursuant to Rule 23, § 13 of the Rules of the Louisiana Supreme Court governing proceedings of the Judiciary Commission. We are of the opinion that there was not “fundamental unfairness” to the respondent in denying him prehearing discovery procedures. This is particularly true since the factual basis of the commission’s recommendation is uncon-troverted by the respondent.

As for the second of the additional specifications of error, this Court in State ex rel. Gremillion v. O’Hara, 252 La. 540, 211 So.2d 641 (1968), did censure the respondent judge under Arts. 9 and 5 of the 1921 Constitution as it existed prior to 1968. The greater power to remove from office includes the lesser power to censure. Similarly, in our view, the Judiciary Commission’s right under the 1921 La. Const. (Art. IX, Sec. 4 subd. D) to recommend “the removal or involuntary retirement of a justice or judge” includes the lesser power to recommend censure.

At the time respondent took office, each elected public official took the oath of public office prescribed by Art. XIX, § 1 of the Louisiana Constitution of 1921 to support the Constitution and laws of the United States and the Constitution and laws of this State, and to faithfully and impartially discharge and perform all the duties incumbent on him.

Further Art. IX, § 4 of the Constitution of 1921 permits removal from office:

“A justice or judge may be removed from office or retired involuntarily for wilful misconduct relating to his official duty or wilful and persistent failure to perform his duty, or for habitual intemperance, or for conviction, while in office, of a felony.”

The Canons of Judicial Ethics clearly express the level of propriety which members of the judiciary should endeavor to maintain:

“I. THE JUDICIAL OBLIGATION
“The assumption of the office of judge casts upon the incumbent duties in respect to his personal conduct which concern his relation to the state and its inhabitants, the litigants before him, the principles of law, the practitioners of law in his court, and the witnesses, jurors and attendants who aid him in the administration of its functions.
“In every particular his conduct should be above reproach. He should be conscientious, studious, thorough, courteous, patient, punctual, just, impartial, fearless of public clamor, regardless of public praise, and indifferent to private political or partisan influences; he should administer justice according to law, and deal with his appointments as a public trust, he should not allow other affairs or his private interests to interfere with the prompt and proper performance of his judicial duties, nor should he administer the office for the purpose of advancing his personal ambitions or increasing his popularity. As a necessary corollary, the judge must be protected in the exercise of his judicial independence.

“IV. AVOIDANCE OF IMPROPRIETY

“A judge’s official conduct should be free from impropriety and the appearance of impropriety and his personal behavior, not only upon the Bench and in the performance of Judicial Duties but also in his everyday life, should be beyond reproach.”

Although the Canons of Judicial Ethics have great importance and meaning to members of the judiciary in setting the standard of conduct expected of members thereof, they do not replace or modify the Constitution. However, if disregard of the Canons or of any other standard of conduct is of such serious nature as to constitute “wilful misconduct ... or wilful and persistent failure to perform his duty,” then an elected official is subject to removal from office. State v. O’Hara, supra; In re Haggerty, 257 La. 1, 241 So.2d 469 (1970).

In O’Hara, supra, where the court found “misconduct” but not “gross misconduct,” the court recited that the grounds enumerated in the Constitution for which a judge may be removed from office are subject to strict construction since they are quasi penal, and there can be no removal except on the grounds therein enumerated. In that case, and again in Haggerty, supra, we recited what was meant by the term “misconduct:”

“Misconduct, ‘in general, is improper conduct or wrong behavior, but as used in speech and in law it implies that the conduct complained of was willed and intentional. It is more than that conduct which comes about by reason of error of judgment or lack of diligence. It involves intentional wrongdoing or total lack of concern for one’s conduct. Whether or not an act constitutes misconduct must be determined from the facts surrounding the act, the nature of the act, and the intention of the actor.’ 211 So.2d 641, 648. (Emphasis provided)

Further, in Haggerty, supra, we made it clear that “misconduct relating to office” includes conduct both “on” and “off” the bench:

“. . . The conduct as constitutionally condemned and denounced is not ‘misconduct in office;’ it is ‘misconduct relating to office.’ The term ‘relating to’ implies not only misconduct of a judge while performing his judicial duties but activities relevant or pertinent to the performance of his duties and responsibilities, or having a connection or a logical or natural association with the performance of his duties and responsibilities. . . .” 241 So.2d 469, 478.

The commission obviously determined that respondent’s conduct in the particulars they found supported by the evidence, and in light of all the attendant facts and circumstances was not sufficient “wilful misconduct relating to his official duty” or clearly “persistent failure to perform his duty” as would warrant recommending Judge Dupont’s removal from the bench, They did, however, find sufficient misconduct to warrant a censure.

We agree with the findings, and the recommendation of the Judiciary Commission that Judge Dupont should be censured. Accordingly we do hereby formally censure Judge Joseph B. Dupont, Sr. for conduct unbecoming a member of the judiciary. His conduct and personal behavior in the particulars hereinabove enumerated, while not constitutionally warranting his removal from office, was disparaging and inconsistent with the high degree of trust placed in him by the electorate.

DIXON, J., concurs and assigns reasons.

BARHAM, J., dissents, being of the opinion that the facts warrant at least suspension and perhaps removal of the judge.

DIXON, Justice

(concurring).

I concur with the majority, but only to the extent that censure is the very least disciplinary measure possible in this case. Four members of the commission favored more serious measures.

The record in this case reflects no mitigating circumstances and no redeeming qualities on the part of respondent — no recognition of wrongdoing, no remorse, no regrets, and no dispute of the basic facts giving rise to disciplinary action.

Dupont knew the owner of the guns, from whom they had been stolen years before. He made no effort to communicate with him. Instead, he attempted to conceal his connection with the weapons. Throughout the transaction his only purpose (disclosed by several taped conversations with Ard) was to keep the guns or get his money hack. There was no consideration for Ard, and if Ard had not come up with the money, Dupont was willing for him to take the consequences.

Such demonstrated amorality and venality should disqualify any person from any bench. Respondent should be removed from office.

      . One member, believing that Judge Dupont committed serious errors of judgment and that his conduct was not that which one expects of a judicial officer under normal circumstances, found nonetheless that his actions did not amount to willful misconduct which would warrant disciplinary action. On an earlier vote, that same member similarly was against any disciplinary action, three members favored censure, two members favored suspension and two members favored removal from office.