author: CALOGERO, Justice. MARCUS, Justice SANDERS, Chief Justice

text:
    Gary James COCO v. WINSTON INDUSTRIES, INC., et al.
    No. 57969.
    Supreme Court of Louisiana.
    Dec. 13, 1976.
    Dissenting Opinion Jan. 12, 1977.
    Rehearing Denied Jan. 21, 1977.

      Gerard F. Thomas, Jr., Natchitoches, Sidney E. Cook, Cook, Clark, Egan, Yancey & King, Shreveport, for plaintiff-applicant.
    Breard Snellings, Trial Atty., Jack M. Alltmont, Sessions, Fishman, Rosenson, Snellings & Boisfontaine, New Orleans, for defendant-respondent.
   CALOGERO, Justice.

We granted a writ of certiorari in this personal injury damage suit to review the judgment of the Court of Appeal reducing substantially a significant jury award.

Plaintiff, a general laborer then twenty years old, was injured while operating an unguarded dado saw at Sherwood Homes, Inc. where he was employed in the business of constructing mobile homes. After a six-day trial, a civil jury returned a verdict in favor of plaintiff for $350,000.00, subject to a stipulated credit of $23,147.32 comprising workmen’s compensation benefits earlier received by plaintiff.

Originally a three-judge panel of the Court of Appeal affirmed the quantum award. A rehearing was granted and thereafter a five-judge panel in the Court of Appeal reduced the award to $140,000, subject to the compensation credit. One judge concurred only to the extent of reducing the award to $200,000. Another judge dissented, believing that the judgment of the district court as affirmed on original hearing should have been reinstated.

We granted review (La., 332 So.2d 864) upon plaintiff’s complaint that the drastic reduction violated Civil Code Article 1934(3) and the principles announced in Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Ballard v. National Indemnity Company of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967); and restated in a number of cases since, including these: Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974); Bitoun v. Landry, 302 So.2d 278 (La.1974); Revon v. American Guarantee & Liability Ins. Co., 296 So.2d 257 (La.1974); Spillers v. Montgomery Ward & Co., 294 So.2d 803 (La.1974); Boutte v. Hargrove, 290 So.2d 319 (La.1974); Fox v. State Farm Mutual Automobile Ins. Co., 288 So.2d 42 (La.1973); Walker v. Champion, 288 So.2d 44 (La.1973); and Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971).

In the foregoing cases we have repeatedly referred to the Article 1934(3) assertion that in the assessment of damages in cases of offenses, quasi offense's and quasi contracts, “much discretion must be left to the judge or jury.”

And we have asserted, initially in Miller v. Thomas, supra at p. 19 that

“From these decisions, two principles emerge: (1) To modify the amount of an award for general damages, an appellate court must find that the trial judge or jury has abused the ‘much discretion’ accorded by the codal provision; (2) The awards in other cases serve only as an aid in determining whether there has been an abuse of discretion and rivet no steel frame of uniformity.”

Recitation of the principles governing the legal issue presents no problem for our appellate courts. It is the application of those principles to particular cases which has proved difficult on occasion. Two questions are especially troublesome. What, in a given case, constitutes an acceptable quantum judgment in the sense of its being neither excessive nor inadequate within the framework of the legally-directed “much discretion” accorded judge or jury? When do awards in other possibly similar, reported cases properly aid (or erroneously mislead) an appellate court in determining whether there has been an abuse of discretion by a given judge or jury?

The appellate court is aided in answering these questions by such later expressions of this Court as these:

“Unless the record demonstrates that the trial court abused the ‘much discretion’ provided for in fixing damages (C.C. 1934), the appellate court should not disturb the award. . . . The question is not whether a different award might have been more appropriate, but whether the award of the trial court can be reasonably supported by the evidence and justifiable inferences from the evidence before it. That such evidence might also support a greater (or smaller) award will not justify a change in the amount by the appellate court.” Bitoun v. Landry, supra at 279.
“A reviewing court might well disagree with the amount of the award fixed by the jury, but it is not entitled to substitute its opinion for that of the trier of fact.” Spillers v. Montgomery Ward & Company, Inc., supra at 809.
“The reduction [must be] supported by the record.” Walker v. Champion, supra at 46.
“The awards made in other cases provide no scale of uniformity; their use is limited to serving as an aid to determine, if the present award is greatly disproportionate to similar awards (if truly similar), whether an issue of abuse of discretion may exist in the present case. In any event, an abuse of trial-court discretion must be clearly demonstrated by the record before an appellate court will tamper with an award of general damages.” Anderson v. Welding Testing Laboratory, Inc., supra at 352.
“Adequacy or inadequacy of an award should be determined by the facts and circumstances peculiar to the case under consideration.” Boutte v. Hargrove, supra at 321-22.

Nonetheless, the ultimate determination by an appellate court as to whether a given judge or jury abused their “much discretion” as a matter of law is a judgment call, a fact which, of course, explains why on rehearing in this case, of the five judges only three (and even one of the three had been of the contrary view on original hearing) concluded that $140,000 rather than $350,000 was the legally acceptable quantum judgment and why three members of this Court have dissented to this very opinion.

Further complicating the already difficult problem is that this Court is constantly acting on writ applications alleging error by appeal courts in judgments applying the principle of Article 1934(3). In its opinion, the Third Circuit Court of Appeal discussed many of the cases wherein this Court denied writs of certiorari following an adjustment in the quantum by a Court of Appeal, and it concluded from such study that this Court does not intend to take from the lower courts the right to review quantum awards made at the trial level. The Court of Appeal’s conclusion that this Court intends for the appellate courts to continue to review quantum awards, is correct as is shown by all of the cases previously cited, as well as by our recent decisions in Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975) and Temple v. Liberty Mutual Ins. Co., 330 So.2d 891 (La.1976), wherein we reaffirmed the constitutional authority of appellate courts to review and render quantum awards. We are here concerned with the character of that review.

Realistically, in quantum issues, as in other issues, there must necessarily be a degree of uncertainty in predicting the ultimate result in a given case. Results will differ principally because of the myriad differences in the cases presented for review. And, of course, there will continue to be honest disagreement among appellate judges when they attempt to determine whether the “much discretion” of Article 1934(3) has been abused in the trial court, and when they attempt to seek aid by looking to other possibly-comparable decided cases. Focusing an informed judgment tempered by a fair recognition of the discretion vested in the trial judge or jury (see the Chief Justice’s comment in Miller v. Thomas, supra) is no simple task resulting in uniform result among judges engaged in appellate review.

We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Anderson v. Welding Testing Laboratory, Inc., supra; Bitoun v. Landry, supra; Fox v. State Farm Mutual Automobile Ins. Co., supra; Walker v. Champion, supra. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. Bitoun v. Landry, supra; Spillers v. Montgomery Ward & Company, Inc., supra. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.

Further we believe that, heretofore, courts of appeal have placed too much emphasis on their review of other reported decisions. Certainly no two cases are ever fully alike. And whether two cases are so similar as to produce like quantum judgments is hardly discernible by gleaning the facts of the comparable decision from simply a written opinion of an appellate tribunal. Of course, another factor bearing on this matter is that significant change has been, and is taking place in our society not the least of which are changes in economic conditions (particularly rampant inflation), fluctuating job categories, employment opportunities, and even lifestyles. Furthermore, it is impossible for an appellate court to judge what evidence in a particular case was given special weight by the finder of fact.

These preliminary observations behind us, we proceed to examine the case under consideration in order to determine whether the Court of Appeal was wrong in finding as they did that the jury in this case abused the much discretion accorded it by law.

The following portion of the opinion of the Court of Appeal on original hearing in our view fairly describes certain of the facts pertinent to the case at hand:

“It was plaintiff’s dominant right hand that was cut. He lost all four of the fingers proper and most of the palm. What remained of his hand was the thumb and that part of the palm attributable to it and to the index finger. The thumb was rotated surgically to give some grasping function between the thumb and the remainder of the hand. Pictures in evidence show the affected member to present a freakish appearance.
“The accident occurred April 9, 1970. Plaintiff was hospitalized for eight days immediately following the accident. To effect a skin graft, his hand was attached to the abdomen for about three weeks. He then returned to the hospital for detachment of the hand and remained about six days. In July, he returned to the hospital for three days for the surgery of turning the thumb. During all this time and until his last office visit to the doctor on September 22, 1970, plaintiff had seen the doctor periodically.
“At the time of the accident, plaintiff was 20 years old and had completed the eleventh grade four years before. During those four years, he had held several manual laboring jobs. He was earning the minimum wage while working for Sherwood. He did not work after the accident until 1972 when he attended a rehabilitation school and thereafter went to work as mechanic. In April, 1974, he went to work for Brake-O, a concern which specialized in servicing front ends, brakes and shock absorbers. For nine months during 1974 he earned approximately $9,000 at that work. A few weeks before trial, he was transferred from Brake-O’s central shop in Dallas to another shop in Arlington, Texas. The Brake-0 firm specialized in quick servicing of the needed mechanical work. The evidence shows that plaintiff was transferred to the Arlington, Texas, shop because of his inability to render the fast service required at the main Dallas shop.
“Plaintiff introduced the deposition of Mr. Albert Tamaz who was service manager at Brake-O’s central shop in Dallas. He testified that plaintiff was a good worker but was substantially restricted by his handicap. Plaintiff was paid on a piecework basis.”
* * * # * *
“The only medical testimony was that of Dr. David Henry who had not treated plaintiff but evaluated him shortly before the trial. He described generally the condition of plaintiff’s hand, noted a decrease in flexion of the wrist because of scar tissue and the skin graft, observed that the abnormal functioning of the joints had shown some arthritic changes and thought that plaintiff would suffer increasing impairment over the years because of the arthritis. He noted that plaintiff’s hand was of no value for fine movements or precise functions and fixed a 60 to 70 percent loss of function of the hand and a 35 to 40 percent impairment of plaintiff as a total human being in all fields of human endeavor.
“Plaintiff presented Dr. David Townsend, a professor of finance and economics at Northwestern State University as an expert in the field of economics and finance. This expert proceeded to calculate the present value of plaintiff’s loss of earnings over the next 45 years with an assumption that his present annual loss of earnings was $5,000. He discussed economic history generally and explained the various factors involved in determining the real purchasing power of the dollar and the extent to which it is affected by changing conditions over the years. He also considered such things as rate of increase in wages as compared to price increases, variations in interest rates, plaintiff’s restricted opportunities in a competitive labor market and other similar factors. Without going into any specific statistics regarding the past history which he used to project the future economic developments, he stated that a discount should not be applied because it would be offset by the other mentioned factors. He computed the present value of plaintiff’s future loss of wages at $225,000 by multiplying $5,000 (the assumed annual wage loss) by 45 (the number of years of life expectancy left to plaintiff).” 330 So.2d 649, 665-66.

In his testimony Mr. Tomza, plaintiff’s boss, made several statements concerning the amount of diminished earning capacity plaintiff suffered at his job in comparison with the earnings of other mechanics. He said that because of his partial hand loss plaintiff was less productive in his work. A fair assessment of that testimony is that mechanics who compare favorably with plaintiff in competence and drive, but with two good hands, were earning on the commission piece work anywhere from three thousand to eight thousand dollars annually more than plaintiff.

Photographs in the record reveal that plaintiff’s injury is grossly disfiguring. Testimony indicates he is ashamed and humiliated by the grotesque appearance of his lobster claw right hand. It is a source of mental trauma to him. Plaintiff who is right handed is handicapped to accomplish such simple things as buttoning up the front of his shirt. He cannot button his left shirt sleeve nor left jacket sleeve; he cannot remove anything from either of his right hand pockets, side or rear, with his right hand; he cannot tie a tie; he cannot tie his shoe laces except with great difficulty; he cannot use a knife and fork nor other eating utensils except with difficulty; he cannot wash his face or brush his teeth except in an awkward manner; he cannot pick up a pencil or a coin off of a table with his right extremity; and use of hand tools is something he accomplishes only with extreme effort and difficulty.

Three of the five members of the Court of Appeal concluded on rehearing that the highest award which could be allowed in this case for general damages is the sum of $75,000, and that $65,000 is sufficient to compensate him for loss of earnings. These sums made up the $140,000 to which the Court of Appeal reduced this plaintiff’s award.

We have thoroughly reviewed this record and desist from speculating what part each of the major items (general damages and loss of wages) played in the total award of $350,000.

As indicated in the Court of Appeal’s recitation of facts (which we have adopted hereinabove) and our assessment of other pertinent evidence, to which we have alluded at various parts of this opinion, plaintiff’s virtually complete loss of his right hand was disabling to an extreme degree with debilitating physical and mental consequences; and his loss of past and future earnings was for not less than forty-five years, and except earnings for two or three years immediately succeeding his injury, was not less than $5,000 annually. Whatever the composition of the jury award, we conclude from a review of this record that the jury did not abuse its much discretion in concluding that plaintiff was due for his injury the total sum of $350,000.

Able counsel for defendant has vigorously though unsuccessfully argued the merit of the Court of Appeal reduction and the propriety of that court’s application of the legal principles governing appellate review of trial court quantum awards. We will attempt to answer certain of his specific complaints.

Defendant contends that no more than $61,017.28 was proven by plaintiff to be his loss of future earnings. He argues that the jury probably allowed $225,000 for loss of earnings on the strength of argument by plaintiff’s attorney and testimony by plaintiff’s economist. The economist, Dr. David Townsend, testified that if plaintiff’s annual loss of earnings was $5,000, and if the length of time was forty-five years, the loss would come to $225,000. He did not discount this sum because in his view a pre-payment discount would be fully offset by certain other factors, including rate of increase of wages in keeping with price increases, variations in interest rates, and plaintiff’s restricted opportunity in a competitive labor market. Defendant asserts that the proven annual loss was $2500 rather than $5,000, that the period of loss (to age sixty-five) was forty-one years rather than forty-five years and that at best, according to Dr. Townsend’s, own testimony, a proper interest discount would be two and one half to three percent, in light of the witness’ admission that over the long run interest rates for triple A rated bonds (the safest but lowest yield bonds) exceed the consumer price index (a measure of inflation) by two and one half to three percent. On these assertions (and/or assumptions) counsel argues that the gross future earnings loss should thus have been discounted at an annual rate of at least two and one-half to three percent net. On these assert-edly “proven” facts defendant presents a computation which indicates that $61,017.28 is sufficient to fund a $2500 per year annuity during plaintiff’s expected work life.

Although defendant’s argument is a persuasive one if we accept his initial premises, he oversimplifies the import of the economist’s testimony, disregards the witness’ consideration of plaintiff’s restricted opportunity in a competitive labor market, and assumes factual bases which might have been, but apparently were not found by the jury. It is clear to us that the evidence was sufficient to warrant significantly different conclusions on the part of the trial jury. For these reasons we are unimpressed with defendant’s otherwise plausible computations.

Defendant had argued in the Court of Appeal, and inferentially does so again in this Court, that a plaintiff earning $2400 annually at the time of an injury who asserts a minimum $5,000 annual earnings loss at the time of trial, from a newly-found occupation, may not use this basis because prohibited by the rules requiring minimization of damages (plaintiff cannot by choosing his particular trade increase his loss of earnings). In support of this argument defendant cites this language from Viator v. Gilbert, 253 La. 81, 216 So.2d 821, 822 (1968):

“. . work of a reasonable character, that is, work for which he was fitted by training and experience of the same or similar kind in which he was engaged at the time of the accident.”

But the full indemnification to which an injured party is entitled under Article 2315 (Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971)) includes damages for decreased earning capacity which is determined by deducting plaintiff’s earning ability after the injury from his earning ability immediately prior to the injury rather than by deducting his income after the injury from his income prior to the injury. The Court of Appeal on original hearing emphatically rejected defendant’s argument and said:

“Wages at time of injury are usually suggestive of the individual’s future earnings. This is not an absolute unvarying rule. In many instances, changes in work and increase of earnings would be more probable. The law does not destine an injured party to his situation at the time of injury. It would be unrealistic and unjust to accept defendant’s argument. In Edwards v. Sims, 294 So.2d 611 (La.App., 4th Cir. 1974) it was said:
‘. . . Moreover, loss of wages can properly be computed on the amount the plaintiff would in reasonable probability have been earning at time of trial, although he was earning less at the time of the accident. James v. State, 154 So.2d 497 (La.App., 4th Cir. 1963).’ ” 330 So.2d at 666.

We believe that the foregoing passage from the Court of Appeal opinion on original hearing properly applies the governing legal principles.

For the foregoing reasons the judgment of the Court of Appeal is set aside and the quantum judgment of the district court reinstated. Accordingly there is herewith decreed judgment in favor of plaintiff Gary James Coco, against Universal Underwriters Insurance Company in the sum of $350,-000 together with legal interest thereon from date of judicial demand until paid, and all costs of these proceedings including expert witness fees fixed by the district court, subject to a credit against the above judgment in the sum of $23,147.32, being the total sum of workmen’s compensation benefits paid to the plaintiff.

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

SUMMERS, J., dissents for the reasons assigned by the Court of Appeal.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I am of the opinion that the court of appeal correctly reduced the award from the sum of $350,000.00 to the sum of $140,-000.00. Accordingly, I respectfully dissent.

SANDERS, Chief Justice

(dissenting).

In Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971), this Court summarized the jurisprudence relating to the appellate review of general damages as follows:

“From these decisions, two principles emerge: (1) To modify the amount of an award for general damages, an appellate court must find that the trial judge or jury has abused the ‘much discretion’ accorded by the codal provision; (2) The awards in other cases serve only as an aid in determining whether there has been an abuse of discretion and rivet no steel frame of uniformity.
“Applying these principles to a personal injury award often presents real difficulty. The facts relating to the injuries must be collated in each case. Upon these facts, the Court must focus an informed judgment, tempered by a fair recognition of the discretion vested in the trial judge or jury.”

Plaintiff’s injury consisted of the loss of four fingers and part of the palm of his right hand. The medical procedure and residual effect are described in the majority opinion.

The Court of Appeal, applying the above principles of appellate review, concluded that the jury had abused its discretion in awarding $350,000. It reduced the award to $140,000. The Court of Appeal noted that the trial judge had failed to review the award, because of his erroneous opinion that he was prohibited from doing so.

As the record reflects, I did not join in the granting of the writ, being of the opinion that the Court of Appeal had committed no error of law in its judgment. Unquestionably, the Court of Appeal applied the principles of review announced in the decisions of this Court. Moreover, I noted that the trial judge had not reviewed the award in accordance with our normal procedures.

After further consideration, I agree with the Court of Appeal that the jury abused its discretion in awarding $350,000. The award is equivalent to an income of over $26,000 per year for the remainder of plaintiff’s life. An award of this magnitude is clearly unwarranted. Louisiana law allows no punitive damages. Our consideration, therefore, is restricted to compensatory damages only. Plaintiff is not totally disabled and is regularly employed. He has received no medical attention since shortly after the accident. He suffers no pain and leads a relatively normal life. Giving the plaintiff a liberal appraisal of his injury, I would fix the award at $200,000.

For the reasons assigned, I respectfully dissent.

      . At the same time, it is worth noting that writ denials by this Court are of no value as precedents. Barham, The Importance of Writ Denial, 21 Loy.L.Rev. 835 (1975).


source: Caselaw Access Project

author: TATE, Justice.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Oliver FLETCHER, Appellant.
    No. 57988.
    Supreme Court of Louisiana.
    Dec. 13, 1976.

      C. Alan Lasseigne, Thibodaux, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., Walter K. Naquin, Jr., Asst. Dist. Atty., for plaintiff-appellee.

      . The defendant also contends that La.R.S. 14:42(2) was repealed by La.R.S. 14.43.1 (1975). See discussion below under Assignments Relating to Constitutionality, in the last section of this opinion.

   TATE, Justice.

The defendant Fletcher was convicted of aggravated rape, La.R.S. 14:42, and sentenced to death. His appeal raises 23 assignments of error.

In addition to attacking the unconstitutionality of the death penalty and of the statute under which it was imposed, the chief defenses to the merit urged in the trial court (and reiterated here) involve: the alleged insanity of the defendant at the time of the trial; the alleged failure of the state to prove that the victim was “prevented from resisting the act [rape] by threats of great and immediate bodily harm”, La. R.S. 14:42(2) ; and the defendant’s alleged mistake of fact, La.R.S. 14:16, whereby he concluded that the victim consented to sexual intercourse.

Context Facts

The victim of the rape was at home with her three year old son. She was six months pregnant with her second child. Her husband had just been transferred out of town.

According to her testimony, the defendant Fletcher appeared at her bed in the early hours of the morning, while it was still dark. She commenced screaming,.and her son beside her was crying. Fletcher put his hand over her mouth and with the other arm, held both down on the bed. She threw a glass at him and tried to hit him, and her boy hit him and tried to bite him.

Fletcher threatened to punch this pregnant woman in the stomach. Because she was afraid for her unborn child and of harm to her and to her boy, she stated, she finally submitted to his demand for sexual intercourse. Immediately after he left the house, she drove to her babysitter’s home five minutes away and, hysterical and crying, told her of the incident. The ladies then immediately called the police.

Assignments of Error Raising Issues of Factual Defense

From the state’s evidence thus summarized, the trial jury could conclude beyond a reasonable doubt (a) that the defendant’s threats of great bodily harm prevented the victim’s further resistance, and (b) that the defendant was not justified by any “reasonable ignorance of fact or mistake of fact”, La.R.S. 14:16, to conclude that the victim consented to the act. We therefore find no merit to Assignments 18 (motion for directed verdict of acquittal) and 23 (motion for a new trial), which urge that no evidence at all disputes factual contentions of the defendant to the contrary.

Assignments Relating to Insanity Defenses

Likewise, with regard to the defense of insanity at the time of the offense, La. R.S. 14:14, there was substantial medical evidence that the accused, although mentally retarded (borderline; IQ 72), was legally sane in the sense that he was capable “of distinguishing between right and wrong with reference to the conduct in question”, La.R.S. 14:14. See State v. Berry, 324 So.2d 822 (La.1975). Accordingly, we find no merit to Assignment 21, which contends that a new trial should have been ordered because of the lack of an evidentiary basis for the jury finding of present sanity.

Similarly, because of the substantial medical evidence to the contrary reasonably accepted by the trial court as preponderating, we find no merit to the defendant’s contention that the trial court erred in finding no lack of mental capacity in him to assist in his defense. La.C.Cr.P. art. 641. See State v. Morris, 340 So.2d 195 (La.1976). This contention is urged in an assignment based on this ground, taken to the finding of a sanity hearing, to the denials of new trial and arrest of judgment, and to the sentencing. Assignment 1.

Assignment 21 also urges that the accused should have the right to appellate review of the jury’s factual finding of sanity at the time of the offense. Assignment 11 raises the issue that Louisiana’s statutory scheme for the trial of the defense of not guilty by reason of insanity deprives him of due process and equal protection in violation of constitutional right; one reason advanced is that there is no statutory scheme to ascertain, separately from the determination of guilt, the number of jurors who specifically voted against the accused’s plea of not guilty by reason of insanity.

Without summarizing the subtle arguments advanced by the accused’s counsel, it is sufficient to state that we find no constitutional requirement for appellate review of the defense of insanity at the time of the crime, nor for separately polling the jury as to this factual defense. The unanimous general verdict of the jury, properly instructed as to factual defense of insanity, constitutes a factual rejection of this defense as well as of the others urged.

The appellate jurisdiction of this court to review this factual issue is limited to issues of law by our state constitution, La.Const., Art. 5, Section 5(B). We are cited to no persuasive authority that this historic limitation of review, common to that of many American jurisdictions, offends constitutional guarantees of due process and equal protection.

Assignments Relating to Defendant’s Confession and Inculpatory Statements

The defendant moved to suppress his confession on the ground it was not voluntarily made.

The evidence on the motion, taken outside the presence of the jury, supports the trial court’s finding that, beyond a reasonable doubt, it was freely and voluntarily made, without coercion or inducement. We do not find error in the trial court’s finding credible the police officers’ testimony to this effect and in its evaluation of the accused’s testimony to the contrary as not credible. The evidence also supports a reasonable basis for the trial court’s finding that, under accepted legal standards, the accused had the mental capacity fully to understand his act and voluntarily to give the confession.

We therefore find no merit in Assignment 4.

Before the confession was given, the defendant had first informed the police officers that the victim had voluntarily admitted him to her home and had consented to sexual relations. Early in the trial, the state informed the defendant of its intention to introduce this initial exculpatory version of the incident into evidence. As we read the transcript, the defendant’s counsel at that time did not object and in fact acceded to the state’s plan to introduce this testimony as being favorable to the accused. See Vol. I, 89-98, especially 89-93. No objection was made when evidence to this effect was subsequently introduced before the jury.

Assignment 5 is based upon the post-trial contention that the oral pre-confession version of the incident was improperly introduced, since beyond the scope of the state’s pre-trial notice of its intent to introduce the written confession. La.C.Cr.P. art. 768. This closely related preliminary oral statement, taken immediately preceding and in connection with the written confession, can probably be regarded as fairly within the scope of the state’s notice. In any event, however, the accused’s failure to object to it before its introduction waives a subsequent claim of error in this regard. La.C.Cr.P. art. 841.

Motion to Quash the Indictment

Assignment 6 relates to the denial of a motion to quash the indictment. The motion is based on the alleged arbitrary and unlawful exclusion from the general venire of all persons who had been summoned for grand or petit jury duty in the preceding two years. It is contended that only those jurors who actually served as civil or criminal jurors should have been excluded from the succeeding venires.

The evidence reveals that the grand and petit jury venires are chosen in the parish of the trial as follows:

In a large hopper are placed a great number of individual names of randomly selected individuals representing a fair cross-section of the population. From this large hopper, a general venire of 1,000 names is randomly selected. La.C.Cr.P. art. 408. It is periodically supplemented to that number, La.C.Cr.P. art. 410, to replace the previously drawn grand jury venire of fifty persons, La.C.Cr.P. art. 411, and the previously drawn petit jury venires (in this case, six venires of 75 persons each), La.C.Cr.P. art. 416.

Subsequently, a grand jury is randomly selected from the grand jury venire. La.C. Cr.P. art. 413. Also, prospective petit jurors are indiscriminately drawn from petit jury venires, La.C.Cr.P. art. 784, when the venires are called to serve during criminal jury-trial weeks, and tendered for examination, challenge, or acceptance. La.C.Cr.P. arts. 786-90, 795-800.

No arguable issue is shown that the procedures thus far described did not result in a jury chosen at random from a fair cross-section of the population.

The testimony further shows, however, that once prospective jurors were called to serve on either a grand or petit jury venire, they were not placed back into the hopper for two years (after which time they were again returned to the hopper). They were excluded from further jury service for two years, whether or not they were actually chosen to serve on the grand or petit juries selected from their respective venires.

The defendant claims that such exclusion from service during that period was arbitrary and not in compliance with law. He bases this contention upon La.C.Cr.P. art. 410(1), which directs jury commissioners to exclude those persons who “have served as civil or criminal jurors”, as well as upon Rule XXV, Section 3(f) (1974) of this court (now Rule XXV, Section 4 (1976)), which likewise provides for exclusion of those “who have served as grand or petit jurors . during a period of two years immediately preceding their selection for jury service.”

The defendant presents a close issue. The language of the statute and the rule are susceptible to the interpretation urged by the defendant: that only those who actually “served as grand or petit jurors” during the preceding two years should be excluded from the choosing of the general venire.

Nevertheless, the language is also subject to the less-obvious interpretation that a person called as a “prospective” juror, or subject to service as such during the existence of his venire, can also be regarded as having “served”, whether or not he was actually chosen for a particular grand or petit jury.

The statutory language, for instance, talks of “prospective jurors” of the venires. See La.C.Cr.P. arts. 786-788. Further, the intent of the exclusion is to excuse from further jury service for a period of two years those caused the sacrifice of public duty by being subject to the disruption of their personal lives by the obligation to serve on juries. This intent, we believe, is better served by the interpretation that, for purposes of the exclusion, those called to serve as prospective jurors by inclusion on venires from which grand and petit juries are chosen have “served as [prospective] grand or petit jurors”, whether or not actually accepted to serve on a grand or petit jury selected from their respective venires.

We therefore reject the defendant’s contention that the general venire was improperly selected.

Nor do we find merit in the contention that the present general venire included an appreciably greater number of females because of the exclusion. This argument is based on the circumstance that, until January 1975, Louisiana women were not ordinarily subject to jury service; consequently, at the time the present venires were drawn in 1975, the prior venires for the preceding two years (some one to two thousand names) were predominantly male.

However, the record indicates that the one-to-two thousand names temporarily withheld from the large hopper would amount to a very small percentage of the large number of names in the large hopper. Thus, the impact of this temporary imbalance of males excluded because of prior jury service would be slight on the overall composition of the supplements to the general venires periodically chosen—and the impact even slighter on the grand and petit juries chosen from these venires for the indictment and trial of the present defendant.

Under these circumstances, where it is conceded there is no fraud or deliberate evasion of constitutional requirements that a fair cross-section of the population be available for jury service, we will not set aside the general venire, the grand jury venire, nor the petit jury venire chosen in accordance with law and as a result of the process described. See La.C.Cr.P. art. 419. See State v. Reid, 340 So.2d 551 (La.1976) (1976).

Assignments Relating to Selection of the Petit Jury

We do not find reversible merit in the several assignments of error made by the defendant based on rulings made during the selection of the petit jury:

By assignment 7, the defendant claims that the accused, a black man charged with the rape of a white woman, was denied a cross-section jury by the state’s action in peremptorily challenging two black prospective jurors and by the court’s action in excusing, La.C.Cr.P. art. 783, (for reason shown adequate) another black prospective juror. Absent a showing of systematic exclusion of persons of a given race from jury service, the prosecutor’s discretionary exercise of the peremptory challenges allowed him by law, La.C.Cr.P. art. 799, does not present an issue for judicial review as to abuse. State v. Gray, 285 So.2d 199 (La.1973). No such showing is here made.

Since the defendant did not exhaust his peremptory challenges, the defendant cannot complain of the trial court’s alleged error in denying his challenges for cause of four jurors. Assignments 8 and 12.

As to Assignment 13, the law does not require the sequestration of prospective jurors during voir dire examination; no abuse of discretion is shown by the trial court’s denial of the defendant’s motion for such sequestration. State v. Robinson, 302 So.2d 270 (La.1974).

By Assignment 15, the defendant contends that his voir dire examination was unreasonably curtailed as to questions designed to test a juror’s emotional reaction to an emotional witness, III Tr. 93, as to questions as to the issue of the death penalty in a rape case, V Tr. 534-37, and on the issue of expert medical testimony and lay testimony, IV Tr. 394-96. We find no error in the trial court’s action in holding improper the three comments or questions cited to us in brief. The voir dire examination as a whole indicates that the trial court allowed great latitude and sufficient opportunity for defense counsel to explore the attitudes and inclinations of the prospective jurors with regard to the issues noted.

(Indeed, over the entire four days of voir dire examination and the next four days of the trial itself, the trial court exhibited great patience and fairness and allowed large latitude to defense counsel in his examination of witnesses and prospective jurors. These same qualities were also exhibited by the court’s evidentiary rulings permitting the defendant to introduce evidence over state objection or in sustaining defense objections to state actions.)

Assignments Relating to Trial Rulings

The defendant contends that several errors were committed during the process of the trial. None of the assignments so urged present reversible merit, for the following reasons:

Assignment 2: The defendant contends that he was denied compulsory process: The director of a state school for the mentally retarded did not respond to a subpoena requesting him to bring records of the accused’s detention there for approximately ten years.

The record reveals: While the defendant desired citation of the director for contempt, the purpose was only to secure such records. Eventually such records were produced and, by stipulation, read to the jury. The defendant did not object to this method of authenticating the records, nor complain of a denial of compulsory process before submitting the case to the jury. See Volume X, Tr. 616-24, 6621-69, 676-82.

We fail to see any prejudice sustained or urged before the jury verdict as resulting from the director’s failure to respond to the subpoena.

Assignment 3: The defendant contends that the trial court abused its discretion by failing to recognize a defense witness as an expert in the field of “psychology guidance.” The trial court recognized the witness’s field of expertise as the field of “guidance counselling”, based upon his training and experience, Tr. 554, and further noted its willingness to let the witness be examined in the field of “psychology guidance”, as described by the witness, insofar as applicable to the accused, Tr. 544. We find no abuse of discretion nor prejudice. (We further find absolutely no basis for the mistrial sought by the defendant on the basis of the court’s ruling. Assignment 20.)

Assignment 16: The defense counsel objected to the long hours of session during the voir dire examination, see Volume III, 202-06, 267 — 73, and now contends that the accused was denied effective representation because of the long hours of trial. The isolated complaints do not indicate merit, nor, aside from the lack of reiterated objection during the trial, does the record reflect any abuse of the trial court’s great discretion in determining the hours of trial, nor any prejudice. See also trial court’s per curiam.

Assignment 17: The defendant complains of the trial court’s failure to give certain special charges. The trial court correctly found that such charges were either contrary to law, incomplete statements of the law, or included in the general charge.

Assignment 19: Whatever slight objection there might have been to the hypothetical question objected to, it was cured by the trial court’s admonition. The mistrial sought was properly denied. La.C. Cr.P. art. 775.

Assignments Relating to Constitutionality

Finally, the defendant contends that the rape statute, La.R.S. 14:42, is unconstitutional, Assignments 9, 14, and that the death penalty for rape is unconstitutional, Assignment 10, or unconstitutional as applied as to him, Assignment 22.

With regard to the validity of the conviction for rape under La.R.S. 14:42 (despite the invalidity of the death penalty), we have recently affirmed convictions despite the constitutional invalidity of the penalty. See decisions of October 14, 1976: State v. Smith, La., 340 So.2d 247; State v. Watkins, La., 340 So.2d 235; State v. Sledge, La., 340 So.2d 205; State v. Morris, La., 340 So.2d 195; State v. Lee, La., 340 So.2d 180; and State v. Craig, La., 340 So.2d 191.

We thus have rejected the defendant’s contention that, without a constitutionally valid penalty provided by statute, the statutory crime itself is also invalid. See also Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), invalidating the penalty but not the conviction for aggravated rape in State v. Selman, 300 So. 2d 467 (1974).

Assignment 9 is essentially based on the erroneous contention that La.R.S. 14:42(2), under which the defendant was convicted, is somehow repealed or made vague by post-trial enactment by the legislature of La.R.S. 14:43.1 (Act 333 of 1975).

The 1975 statute created the crime of “forcible rape”: i. e., sexual intercourse “without the lawful consent of the female where she is prevented from resisting the act by force or threats of violence wherein the victim reasonably believes her resistance to be useless”.

This statute merely created a lesser degree of the crime, permitting a responsive verdict, La.C.Cr.P. art. 814, subd. A(8) (as amended in 1975), to the charge of aggravated rape, La.R.S. 14:42. It does not, as defendant contends, repeal or make ambiguous the more serious offense of aggravated rape defined by Subsection (2) of the latter statute — punishing sexual intercourse without the lawful consent of the female since committed “Where [she] is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.”

By Assignment 14, the defendant contends the statute punishing rape by a male of a female, La.R.S. 14:41, 42, unconstitutionally discriminates against a male because it does not similarly punish the rape of a male by a female. Pretermitting the physiological difficulty of the latter feat, we do not find this legislative classification of males as punishable by the crime unreasonable, nor an invidious discrimination against males so as to deny them the equal protection of the laws: female rapes of males do not represent a social problem, although male rapes of females do. See State v. Devall, 302 So.2d 909 (La.1974).

Nevertheless, the death penalty itself has been invalidated by the United States Supreme Court. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed. 2d 974 (1976); Selman v. State of Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976). For the reasons stated in our above-cited decisions of October 14, 1976, therefore, the death penalty must be set aside, and the case remanded to the district court for imposition of the most serious penalty imposable for a lesser included offense, i. e., (at the time of this offense of October 25, 1974) to twenty years, the maximum penalty for simple rape, La.R.S. 14:43.

Decree

For the reasons assigned, the defendant’s conviction is affirmed, but his sentence is set aside and his case is remanded to the district court for resentencing consistent with the views herein expressed to imprisonment at hard labor for a term of twenty years.

CONVICTION AFFIRMED, BUT REMANDED FOR RESENTENCING.

SUMMERS, J., concurs.

      . This 1976 revision provides:
      “The jury commission shall not include in, and shall delete from, the general venire the names of those persons who have served as grand or petit jurors in criminal cases or as trial jurors in civil cases during a period of two years immediately preceding their selection for jury service. However, if the name of such a person is included in a general venire, that person may claim an exemption from jury service or may waive the exemption.”
      The 1976 revision clarified that this exclusion from jury service, partly based upon statute, is not a personal exemption which must be claimed by the person entitled to it.

      . La.R.S. 14:42 (as amended by Acts, 1975) provides:
      “Aggravated rape is a rape, heterosexual or homosexual, committed where the sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
      “(1) Where the victim resists the act to the utmost, but whose resistance is overcome by force;
      “(2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution;
      “(3) Where the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.
      “Whoever commits the crime of aggravated rape shall be punished by death.”


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Robert Morton ROCHE.
    No. 58192.
    Supreme Court of Louisiana.
    Dec. 13, 1976.
    Rehearing Denied Jan. 21, 1977.

      F. Irvin Dymond, Law Offices of Dymond & Crull, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Julian J. Rodrigue, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

Defendant, Robert Morton Roche, charged with inciting Rex Armistead to murder Gardener S. Adams, Jr., a violation of LSA-R.S. 14:28, was found guilty and sentenced to pay a fine and serve two years in the custody of the Louisiana Department of Corrections. On appeal to this Court, defendant relies upon eleven assignments of error for reversal of his conviction and sentence.

Defendant and the intended homicide victim were officials of the same bank. The State, in the trial court, sought to prove that defendant had suffered severe economic reverses and was in danger of losing his position as a senior vice-president of the bank. Further, the State sought to prove that defendant viewed the intended victim as a threat to his position at the bank. Thus, the State’s theory of the case is that defendant planned to have Mr. Adams, Jr. killed in order to prevent, or, at the very least retard, his financial downfall.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial court erred in denying that portion of defendant’s “Motion to Produce Exculpatory Evidence and All Evidence Affecting Credibility of the State’s Witnesses” which sought evidence affecting the credibility of the State’s witnesses.

The defense concedes that the trial judge’s order of disclosure satisfies the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), in that the State was ordered to furnish to defendant any exculpatory evidence in its possession. However, the defense argues that it was entitled to the production of all police reports by the investigating officer made during the course of the investigation. These reports, the defense suggests, may have reflected upon the credibility of the investigating officer. The defense relies upon Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). In that case, the testimony at the trial was to the effect that the government had not promised leniency to the main prosecuting witness. After conviction, the defense discovered that an Assistant United States Attorney had promised the witness that if he testified, he would not be prosecuted. The United States Supreme Court reversed the conviction and ordered a new trial. In view of the false testimony at the trial, the court found that the failure to disclose the promise of leniency was a denial of due process.

That case is factually and legally distinguishable. The Due Process Clause does not require that the State furnish the defendant a copy of all police reports concerning the crime. State v. Nero, La., 319 So.2d 303 (1975); State v. Lane, La., 302 So.2d 880 (1974); State v. Mattio, 212 La. 284, 31 So.2d 801 (1947).

Assignment of Error No. 1 is without merit. ■

ASSIGNMENT OF ERROR NO. 2

Defendant alleges that the trial court erred in permitting the State to provide transcripts to the jury of taped conversations. Further, he argues that allowing the introduction of the transcripts when only one of the stenographers testified to her transcription and that it was a verbatim transcript only to the best of her understanding was error. She stated that she could not transcribe some “words” because she was unable to understand them. She testified that she had checked the entire transcript against the contents of the tapes.

We held in State v. Snedecor, La., 294 So.2d 207 (1974), that introducing transcripts, for the jury’s convenience, with the tape recordings does not violate the best evidence rule.

The defendant argues, however, that even if the best evidence rule was not violated, the stenographer’s designation in the transcript of the names of the parties was prejudicial error. This argument is likewise without merit. The tape recordings, themselves, were introduced in evidence. As the sound recordings were played in the courtroom, witnesses identified the voices.

Assignment of Error No. 2 is without merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

Here defendant alleges that the trial court erred in allowing Rex Armistead, the undercover police officer who posed as the hired killer, and State Trooper Mickey Bryant to testify that they believed defendant was serious in his attempt to have Mr. Adams murdered.

Trooper Bryant testified:

“Q. What did you say the purpose of that meeting that afternoon was?
“A. The purpose, as far as our office was concerned, was to establish through this meeting if indeed there was a conspiracy on behalf of Mr. Roche to have someone killed, and the purpose of this meeting through this conversation we hoped to learn from Mr. Roche’s statements if he indeed was serious in carrying out this threat that we had learned from Deputy Adams.
“Q. What decisions did you make after you listened to that conversation, sir?
“A. That there was indeed a threat.
* * * * * *
“Q. What decision did you reach after you listened to that taped conversation, Lieutenant Bryant?
“A. It left no doubt in my mind that there was indeed a purpose by Mr. Roche to have someone killed.”

Mr. Armistead testified:

“Q. What was your agreement with Mr. Roche, sir?
“A. To take the life of Gardner Adams, Jr.
“Q. In return for what; which you were to receive, what, sir?
“A. Ten thousand dollars.
“Q. Was there any question in your mind that this man meant what he said, sir?
“A. None whatsoever.”

Defendant alleges that this testimony includes the witnesses’ opinions and is prohibited by LSA-R.S. 15:463, which provides:

“Except as otherwise provided in this Code, the witness can testify only as to facts within his knowledge, and neither as to any recital of facts heard by him, nor as to any impression or opinion that he may have.”

We disagree. While it is well settled that a lay witness may not give opinion testimony, it is equally well settled that on subjects which any person of experience may make a natural inference from facts observed, a lay witness may testify as to such inference, provided he also states the facts observed. State v. Maines, 183 La. 499, 164 So. 321 (1935); State v. Willis, 181 La. 154, 158 So. 826 (1935). In our opinion, the present testimony is such a natural inference. See State v. Davalie, La., 313 So.2d 587, State v. Kirklin, La., 283 So.2d 713 (1973).

Both Bryant and Armistead testified fully regarding the meeting with defendant; they were subject to cross examination by defense counsel; the jury was provided with a tape recording of the incident to which Bryant testified; also, defendant asserted duress as a defense to the charge, thereby placing his emotional condition during the crime at issue. We find the testimony admissible for the following reasons: (1) the witnesses did state the facts upon which their inferences were based; (2) the inferences were not of a scientific type requiring expert testimony; and (3) the defendant, who is not an expert, placed his mental condition at issue by pleading duress and testifying that he “did not mean what he said” on the tapes. State v. Rogers, La., 324 So.2d 403 (1975); State v. Neal, La., 321 So.2d 497 (1975). Defendant’s objection, in fact, goes to the weight to be given the evidence and not to its admissibility. State v. Dotson, 260 La. 471, 256 So.2d 594 (1971).

Assignments of Error Nos. 3 and 4 are without merit.

ASSIGNMENT OF ERROR NO. 5

The trial court ordered the State to furnish defense counsel a transcript of all tape recorded conversations before trial. Here, defense counsel argues that the trial court erred in allowing the State to elicit testimony during trial regarding a conversation which had been recorded but the tape of which had been destroyed. He argues that this testimony violated the above court order.

Officer Armistead’s testimony at trial reveals that he kept the recording in question for some three weeks after it was made. He then destroyed it when he was informed that it was inadmissible because it was an interstate telephone conversation.

Defendant’s argument is without merit. He admits that the statements were part of the res gestae of.the crime; therefore, the notice provided for in LSA-C.Cr.P. Art. 768 was unnecessary. Since the tape was not in existence at the time the court order was issued, failure to provide a transcript of the conversation could not, as defendant alleges, be a violation of the court order.

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends that the trial court erred by overruling his motion for a mistrial, which charged that Armistead, the undercover officer, referred to another crime in his testimony.

The pertinent testimony is as follows:

“Q. What did you tell Mr. Roche, sir, if anything?
“A. I advised Mr. Roche that I had taken care of one of his problems; that the man was down; that I would collect my money later.”

Defendant argues that this testimony by the “hit man” that he had taken care of one of his problems and “The man was down,” referred to a scheme to kill someone other than Mr. Adams, Jr.

The argument is without merit; the record clearly indicates that the remark referred to Mr. Adams, Jr.:

“Q. When you said the party was down, sir, what do you mean by that?
“A. I meant that—
******
“Q. What does down mean in underworld jargon?
“A. That means I carried out the contract on the life of Gardner Adams, Jr.”

We agree with the trial court that the reference was not to another crime.

Assignment of Error No. 6 is without merit.

ASSIGNMENT OF ERROR NO. 7

Defendant alleges that the trial court erred in allowing a State’s witness to testify about and introduce into evidence records of the Circus Circus Hotel & Casino of Las Vegas, Nevada, relating to Roche’s gambling debts during a time when the casino was under a different management.

Defendant alleges that the records were not properly qualified as business records and, therefore, were inadmissible under LSA-R.S. 15:460, which provides:

“Any document, other than an authentic act, may be proved by any one who saw it written, or by a comparison of hands, or by any one who, from his knowledge of the handwriting of the person alleged to have written the document can testify that the document produced is in the handwriting of said person.”

In State v. Launey, La., 335 So.2d 435 (1976), we held:

“Business records are admissible in evidence if relevant and material without the necessity of identifying, locating or producing as witnesses the individuals who made the entries in the regular course of business.”

Pursuant to a subpoena duces tecum, the comptroller of the Circus Circus brought with him records showing defendant’s indebtedness at the casino. The comptroller testified that the records were kept in the normal course of business; that defendant’s indebtedness had occurred prior to the present management taking over the hotel and casino; that he had not personally made the entries; that anyone in his position at the Circus Circus would be familiar with and have access to the records.

We hold that the documents were regular entries made in the usual course of business and were, therefore, properly admitted into evidence as an exception to the hearsay rule. State v. Launey, supra; State v. Graves, 259 La. 526, 250 So.2d 727 (1971).

Assignment of Error No. 7 is without merit.

ASSIGNMENT OF ERROR NO. 8

Defendant alleges that the trial court erred in allowing the district attorney to testify regarding a number of lawsuits pending against defendant and the corporations in which he was a stockholder. The State introduced certified copies of the petitions in the various suits. Defendant contends that the evidence introduced is hearsay and irrelevant.

The trial court correctly ruled that the evidence was non-hearsay and relevant. The State introduced the court records in order to show that defendant was in potential economic difficulty, thus helping to establish defendant’s motive for the homicide. The records and testimony were, therefore, relevant. The court records were non-hearsay as they were introduced, not to prove the truth of their content, but only to establish the existence and nature of the judicial proceedings against defendant. State v. Monk, La., 315 So.2d 727 (1975); State v. Hodgeson, La., 305 So.2d 421 (1974); State v. Leming, 217 La. 257, 46 So.2d 262 (1950); State v. Wall, 167 La. 413, 119 So. 410 (1929).

Defense counsel pointed out on several occasions that the allegations contained in the petitions could not be considered as fact, as there were no judgments in the cases.

Assignment of Error No. 8 is without merit.

ASSIGNMENT OF ERROR NO. 9

Defendant alleges that the trial court erred when it permitted the father of the intended victim to testify regarding the defendant’s bad character.

The witness was not only the intended victim’s father, but, as Chief Executive Officer of the bank, also defendant’s employer. The witness testified that defendant was intoxicated on a number of occasions and missed work. He testified that he had been compelled to “call Mr. Roche on the carpet” about this and other matters numerous times. Mr. Adams, Jr., the intended victim, had brought to his father’s attention several examples of Mr. Roche’s bad business decisions, especially in approving loans. It was partially if not wholly due to Mr. Adams, Jr. that Mr. Roche’s power to approve loans was severely curtailed. Through the testimony of Mr. Adams, Sr., the State sought to establish motive: that by having Mr. Adams, Jr. killed, Mr. Roche could better protect his position at the bank and avert financial ruin. The evidence was, therefore, relevant and admissible; it is not evidence of general bad character prohibited by LSA-R.S. 15:481.

Assignment of Error No. 9 is without merit.

ASSIGNMENT OF ERROR NO. 10

Defendant alleges that the trial court erred by sustaining the State’s objection to defense attorney’s asking defendant: “Had anyone told you about anything about the number of people that he [Rex Armi-stead, undercover agent pretending to be a hit-man] had killed?”

The defendant asserts that his main defense was duress. He argues that the statements were admissible to establish the reasonableness of defendant’s fear of Armi-stead, the “hit man.”

We can assume that the statements to the defendant were to be used non-assertively as a basis for an inference as to defendant’s state of mind. If so, the evidence would be non-hearsay and admissible. Pugh, Louisiana Evidence Law (1974) pp. 415-416.

On the record in the present case, however, the rejection of the question must be regarded as harmless error. The record discloses that the defendant accepted the undercover officer as an experienced “hit man.” His activity as such was sufficient to show that he was a killer and that defendant had knowledge of it. In the light of the entire record, the ruling deprived the defendant of no substantial rights. LSA-C.Cr.P. Art. 921.

Assignment of Error No. 10 is without merit.

ASSIGNMENT OF ERROR NO. 11

Defendant alleges that the trial court erred in its charge to the jury by failing to instruct the jury that an attempt to incite a felony is a responsive verdict to a charge of inciting a felony.

Since defendant failed to object timely, his assignment of error is not properly before us. Defendant did object to the trial judge’s refusal to give certain special charges, but those charges did not include an “attempt” instruction.

In State v. Craddock, La., 307 So.2d 342 (1975), defendant assigned as error the trial court’s failure to charge the jury regarding several additional responsive verdicts and to include those responsive verdicts on the list submitted to the jury. The Court held that, absent an objection, a defendant cannot complain of the judge’s charge to the jury, even though the charge may appear in the record. We further held that the alleged error as to the insufficiency of the list of responsive verdicts given to the jury was not reviewable since no objection had been made in the trial court in time for the trial judge to correct the error. See also State v. Mitchell, La., 319 So.2d 357 (1975).

Assignment of Error No. 11 is without merit.

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

DIXON and DENNIS, JJ., concur.


author: SUMMERS, Justice. TATE, Justice,

text:
    STATE of Louisiana v. Joseph COTTON.
    No. 58196-A.
    Supreme Court of Louisiana.
    Dec. 13, 1976.
    Rehearing Denied Jan. 21, 1977.

      Frank J. Gremillion, Hynes & Gremillion, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Warren J. Hebert, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

By bill of indictment filed April 17, 1974 Joseph Cotton was charged with the February 22, 1974 armed robbery of Charles David. After trial by jury Cotton was convicted of simple robbery and sentenced to five years at hard labor. One assignment of error is urged by Cotton on this appeal.

Some familiarity with the circumstances of the offense giving rise to this prosecution will facilitate an understanding of the issues presented by the defense. These facts are essentially agreed upon:

About six o’clock on the evening of February 22, 1974 Charles David, Pierre W. Brignac and Arthur C. Brister arrived at Brister’s place of business, a used car lot on Scenic Highway in East Baton Rouge Parish. Brister approached a mobile home used by him as an office and, upon observing its condition, called to David and Brig-nac something to the effect that the place had been ransacked. About this time a tall black man later identified as Paul Smith burst through the door and shot and killed Brister. Immediately thereafter two more men emerged from the trailer and ran off some distance. Smith then robbed David and fled the scene.

Cotton was arrested early on the morning of February 26, 1974 and transported directly to the sheriff’s office. Upon his arrival he was advised of his Miranda rights by Detective Sergeant Fluker of the sheriff’s department, who had the rights read to Cotton by Sergeant Gerald. Cotton also read the rights form and signed it. Although he would not make a statement at that time, he did deny knowledge of the robbery and killing.

In the late afternoon of the same day Cotton was placed in a lineup held to determine whether he could be identified by David and Brignac, the two surviving victims. Prior to the lineup, the trial judge appointed counsel to represent Cotton at the lineup. This attorney did attend and assisted in the selection of inmates of the jail to stand with Cotton. The Assistant District Attorney who tried this case was also present at the lineup. He was aware that counsel had been appointed to represent Cotton. No one identified Cotton at the lineup.

After the lineup Cotton was interviewed by his appointed counsel in a small room nearby. As the lawyer left he admonished Cotton not to make any statements. He was overheard by Sergeant Robinson of the East Baton Rouge Sheriff’s Office who was nearby in the hall. Robinson was in charge of the investigation of the crime for which Cotton had been arrested. When his lawyer departed, Cotton was placed in a large room known as the “drunk tank”. Sergeant Robinson then resumed his occupation with other matters.

Sometime shortly thereafter, Ralph Stas-si, a detective with the Iberville Parish Sheriff’s Office, sought permission from Sergeant Robinson to speak to Cotton in connection with an investigation Stassi was conducting of a burglary in Iberville Parish involving Paul Smith, a matter unrelated to the offense with which Cotton was charged. Stassi’s interest was to ascertain the whereabouts of Smith but when Cotton was unable to furnish the information Stassi discontinued the interview.

After a while Cotton told a jail deputy he wanted to speak to Robinson. Because he was occupied with other matters, and realized Cotton had been admonished not to speak to anyone, Robinson at first disregarded the request. When Cotton continued to send word, perhaps three times in all, Robinson finally joined Cotton in a small interview room. There Robinson told him he wouldn’t talk to him until he received the Miranda warnings, and waived his rights.

Robinson thereupon carefully explained each of the Miranda warnings contained on a waiver of rights form to Cotton in the presence of Detective Stassi, who had been called into the interview room to witness the conversation. Cotton acknowledged that he understood his rights and signed the waiver form also signed by Robinson and Stassi as witnesses.

When the signing had been accomplished, the first thing Cotton wanted to know was whether he had been picked out of the lineup. Robinson told him “that two people had said they saw him on the lot that day.” Then, according to Robinson, who made notes of the interview, Cotton, to make it perfectly clear that he didn’t have anything to do with the actual shooting of Brister, outlined the details of the robbery and killing on February 22, referred to briefly in the beginning of this opinion. The interview was of short duration. It consisted mainly of narration by Cotton with occasional questions by Robinson. At no time during the interview did Cotton ask for his attorney or seek permission to call him, nor did he ask to terminate the interview.

As Robinson left the interview room at the end of the interview, he encountered the Assistant District Attorney who was drinking coffee in the hall. Having been assigned to the case, the attorney was there for the purpose of acquainting himself generally with the progress of the investigation. It was the practice of that office for the attorney assigned to the case to keep in touch with the investigation if it involved a capital crime. When he asked Robinson if he had obtained a statement, Robinson replied that he had. With this information the Assistant District Attorney went into the interview room with Robinson’s notes, read them to Cotton, and Cotton verified their correctness. At one point in the reading Cotton made a correction in the price of a handgun he had used on February 22 and later sold. Before being returned to the lockup, Cotton was permitted to use a telephone to ask his mother to retrieve the gun he had sold.

At the trial, on motion of the State, the jury was removed and an extended hearing was conducted to obtain a ruling on the admissibility of the exculpatory and incul-patory statement obtained by Robinson from Cotton. At the hearing the facts outlined above were established.

When Cotton took the stand on the predicate, outside the presence of the jury, he acknowledged that the waiver of rights form had been read to him twice on February 26; once shortly after his arrest as soon as he arrived at the Sheriff’s Office and again immediately prior to the statement given to Sergeant Robinson. He also admitted that he had signed the waivers on both occasions.

When Cotton had been interrogated by both counsel, the trial judge devoted 45 minutes to a meticulous and indepth interrogation of Cotton to determine whether he understood, and knowingly and intelligently waived, his right to the presence of counsel and the other Miranda rights.

In his ruling the trial judge held that the confession was knowingly and voluntarily made, and, under the totality of the circumstances, Cotton’s statement was a free and voluntary act on his part. He said, “I have absolutely no difficulty with the question whether or not Mr. Cotton understood what his rights were, [or] whether or not he knowingly and intelligently waived them.” The judge continued “. . . [H]e knew what he was doing. He initiated it.” The trial judge took into consideration that Cotton was a youth with a ninth grade education, finding him to be articulate and intelligent and not overly affected by the presence of police or his incarceration.

The defense contention was that Sergeant Robinson, though not in bad faith, unintentionally tricked Cotton into making a statement by telling him that someone had identified him at the lineup as a person present on the car lot at the time of the offense. The effect of this, according to the defense, was to induce Cotton to make a statement to exculpate himself of the actual shooting and, at the same time, unknowingly inculpate himself as a participant in the robbery and murder.

In considering this contention, the trial judge reasoned that, while ethical considerations may have been involved when Robinson took the statement knowing that Cotton had been admonished by his appointed attorney not to make any statement, ethical considerations, when balanced against the rights of society, should not militate against the admissibility of the statement if all other factors bearing upon the voluntary nature of the confession were present as they were in this case.

While the trial judge observed that the conduct of Sergeant Robinson may be considered reprehensible according to standards of lawyers and judges, he did not find that it was overly reprehensible in the case of the Sergeant and Detective Stassi, especially since all concede that Robinson’s statement to Cotton was, in Robinson’s opinion, correct and was not made in bad faith. It was the trial judge’s understanding that the general tenor of the cases he had studied supported the conclusion that though an accused has counsel, this does not have the effect of hamstringing the police in their search for the facts if the accused wants to talk to them. In the judge’s opinion, the accused is not bound by the admonition of his counsel not to talk. He remains free to choose to follow or not follow his counsel’s advice.

There are some subtle coercive influences in any statement obtained from an accused, the trial judge observed. Examples are the effects of arrest and incarceration; these are coercive influences which do not invalidate the voluntary nature of a confession. So, too, Sergeant Robinson’s mistaken belief that Cotton had been identified at the lineup may have misled Cotton. But Robinson’s statement was not made in bad faith or to mislead Cotton. There was no design to trick.

No confession shall be used against any person accused of crime unless freely and voluntarily made, La.Const. art. I, § 11 (1921); and it must not be made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. Rev.Stat. 15:451. There must be no treatment designed by effect on body or mind to compel a confession of crime. La.Rev.Stat. 15:452. But a confession need not be the spontaneous act of the accused and may be obtained by means of questions and answers. La.Rev.Stat. 15:453. The burden is imposed upon the State to establish the free and voluntary nature of the confession. State v. Diles, 316 So.2d 396 (La.1975).

This record undoubtedly supports the finding of the trial judge that Cotton’s statement to Robinson was free and voluntary. We do not believe that the fact that a defendant has an attorney means that law enforcement officials cannot procure a statement of any kind from him without prior notice to, if not the consent of, the attorney. United States v. Cobb, 481 F.2d 196 (3rd Cir. 1973), cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973); United States v. Springer, 460 F.2d 1344, (7th Cir. 1972), cert. denied, 409 U.S. 873, 93 S.Ct. 205, 34 L.Ed.2d 125 (1972). The court in Springer, id., held that a constitutional right such as the right to counsel may be waived, although there is a higher standard imposed to show waiver of the presence of counsel once counsel had been appointed than before.

In Coughlan v. United States, 391 F.2d 371 (9th Cir. 1968), cert. denied, 393 U.S. 870, 89 S.Ct. 159, 21 L.Ed.2d 139 (1968), oral statements were testified to in court by police officers who interviewed the defendant in a jail interview room. The officers knew that the defendant was represented by counsel, but counsel knew nothing of the interview. As is true here, the defendant in Coughlan was fully warned, before he made any statements, of his Miranda rights; but he waived those rights. The court held that the statements made by the defendant were admissible in evidence although it further indicated disapproval, as we do here, of the practice of interviewing prisoners in the absence of their attorneys. This holding was approved in United States v. Cobb, supra.

In United States v. Cobb, supra, the court stated that it is permissible for a law enforcement official to interview a defendant, even though the defendant has counsel and even though that counsel is not consulted, as long as the proper Miranda warnings are given. The same applies to the case before us. See also Moore v. Wolff, 495 F.2d 35 (8th Cir. 1973). In view of the fact that courts have attached importance to a request by defense counsel to law enforcement officials not to take statements from his client, it is noted here that, even though Sergeant Robinson overheard defense counsel tell Cotton not to make any statements, at no time did defense counsel request that Robinson or others refrain from taking statements from Cotton.

Another issue here is whether the erroneous statement of Robinson that Cotton had been seen at the car lot by two persons destroyed the voluntary character of Cotton’s statement.

Justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained until it is narrowed to a filament. We are to keep the balance true. Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934).

Just as the law does not require that a defendant receive a perfect trial, only a fair one, it cannot realistically require that policemen investigating serious crimes make no errors whatsoever. The pressures of law enforcement and the vagaries of human nature would make such an expectation unrealistic. Before we penalize police error, therefore, we must consider whether the sanction serves a valid and useful purpose.

Considering the evidence and the finding of the trial judge that Robinson’s error did not destroy the voluntary nature of the confession, we agree that the ruling of the trial judge was correct and his evaluation of the evidence should not be disturbed.

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

TATE, J., dissents and assigns written reasons.

DIXON and CALOGERO, JJ., dissent.

TATE, Justice,

dissenting.

I respectfully dissent, although fully recognizing the persuasiveness and sensible comment of the majority opinion. To permit the prosecutor or law enforcement authorities to interrogate a suspect held in jail, without notice to counsel retained or appointed to represent him, marks a real erosion on the constitutional right to effective representation by counsel. It also violates the Louisiana Code of Professional Responsibility and its attempt, in accord with recognized national standards, of ethical regulation in the interest of civilized order: Adverse counsel is prohibited from communicating or causing another to communicate with a client represented by an attorney.

As the majority notes, the assistant district attorney was aware that Attorney Davis was representing defendant; Robinson further knew that the attorney had advised defendant not to make any statements.

In State v. Jackson, 303 So.2d 734 (La.1974), this court held that a confession taken (1) in spite of a request from retained counsel that no further interrogation be made until he had had an opportunity to consult with his client and (2) with the deliberate withholding from the accused of the information that an attorney had called and had stated that he had been retained to represent the accused and did not wish him to be interrogated until he had conferred with him, was inadmissible. In so holding, we stated as follows, 303 So.2d 737:

“Under these circumstances, the interrogation was made without an informed waiver of the defendant’s right to the assistance of counsel and to remain silent. When counsel has been retained to represent a prisoner, the governmental authorities cannot deny the lawyer reasonable access to his client, nor may they ignore his request that he be allowed to confer with his client prior to, if not during, the interrogation. Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). See also American Law Institute Model Code of Pre-Ar-raignment Procedure, Section 140.7 (Tentative Draft No. 6, April 1, 1974). Confessions taken in violation of these principles are constitutionally inadmissible.
“The essential reasons for the constitutional right of access to counsel lie in principles of fundamental fairness safeguarding the rights of an individual against potential governmental abuse, as well as in protecting the integrity of the truth-finding process * * *.”

As stated in Miranda v. Arizona, 384 U.S. 436, 465-467, 86 S.Ct. 1602, 1623-1624, 16 L.Ed.2d 694, 718-719 (1966):

“A different phase of the Escobedo decision was significant in its attention to the absence of counsel during the questioning. There, as in the cases today, we sought a protective device to dispel the compelling atmosphere of the interrogation. * * *
“It was in this manner that Escobedo explicated another facet of the pre-trial privilege, noted in many of the Court’s prior decisions: the protection of rights at trial. That counsel is present when statements are taken from an individual during interrogation obviously enhances the integrity of the fact-finding processes in court. The presence of an attorney, and the warnings delivered to the individual, enable the defendant under otherwise compelling circumstances to tell his story without fear, effectively, and in a way that eliminates the evils in the interrogation process. Without the protections flowing from adequate warning and the rights of counsel, ‘all the careful safeguards erected around the giving of testimony, whether by an accused or any other witness, would become empty formalities in a procedure where the most compelling possible evidence of guilt, a confession, would have already been obtained at the unsupervised pleasure of the police.’ * * * »

Further, the conduct violated ethical standards of professional responsibility. Disciplinary Rule 7-104 of the Louisiana Code of Professional Responsibility provides:

“Communicating With One of Adverse Interest
“(A) During the course of his representation of a client a lawyer shall not:
(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.
(2) Give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client.”

The American Bar Association Standards of Criminal Justice Relating to the Prosecution Function, Standard 1.1 (1971) provides: “It is the duty of the prosecutor to know and be guided by the standards of professional conduct as defined by codes and canons of the legal profession * * *.”

The American Law Institute Model Code of Pre-Arraignment Procedure, Section 140.8(2) (1975) does provide for questioning after representation by counsel, but only under very express and formal waiver of the right to have counsel present at the questioning.

Various federal cases have dealt with issues similar to this case. In Williams v. Brewer, 375 F.Supp. 170, 178 (S.D.Iowa 1974), the federal district court held that “[w]hen police have agreed with the defendant’s attorney that the defendant will not be questioned in the attorney’s absence, when another attorney has asked to be with the defendant at a particular time and place, and when the defendant has repeatedly asserted his desire not to talk in the absence of counsel, the police plainly should not be permitted to interrogate the defendant at all until further notice is given to his counsel.”

In United States v. Wedra, 343 F.Supp. 1183, 1186 (S.D.N.Y.1972), the district court stated: “Just as the right to counsel does not depend on a request, so, too, once counsel has been retained and he is known to the interrogators, the right to have him present does not depend upon the accused asserting a formal demand for his presence, at least where, as here, the interrogators have already been advised that the client is not to be questioned in the absence of counsel and they have given assurances to that effect.”

And in United States v. Thomas, 474 F.2d 110, 113 (10th Cir.), certiorari denied, 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160 (1973), the court, while affirming the conviction, noted: “What we do hold, however, is that once a criminal defendant has either retained an attorney or had an attorney appointed for him by the court, any statement obtained by interview from such defendant may not be offered in evidence for any purpose unless the accused’s attorney was notified of the interview which produced the statement and was given a reasonable opportunity to be present. To hold otherwise, we think would be to overlook conduct which violated both the letter and the spirit of the canons of ethics. This is obviously not something which the defendant alone can waive.”

(Contra: United States v. Cobb, 481 F.2d 196 (3d Cir. 1973).)

Accordingly, for the reasons noted, I respectfully dissent. I do agree with the majority that both the police officer and the assistant district attorney were in good faith in interrogating the suspect in the absence of notice to his appointed counsel. However, this court should not countenance even good-faith infringements of constitutional guarantees to the effective representation of an accused by counsel.

The long history of civil liberty in America, and the very reasons for the constitutional guarantees of the bill of rights, indicate that we cannot permit violation of constitutional guarantees even in good faith by officers of government:

What is done in good faith (and most officers of government act in good faith) to assure conviction of the guilty may — either inadvertently through one-sided zeal or occasionally advertently — contribute to conviction of the innocent. The jury, not the police nor the prosecutor, determine innocence or guilt; and the right to counsel is an important protection to assure an impartial judgment by the jury on the basis of evidence admitted as reliable as tested by standards derived from our ancient history of safeguarding individuals against intentional or unintentional abuses of the huge powers of government.

I therefore respectfully dissent, feeling that the present opinion of the majority permits an encroachment upon the constitutionally sacred rights of an accused to effective representation by counsel.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Joseph COTTON.
    No. 58196.
    Supreme Court of Louisiana.
    Dec. 13, 1976.

      Frank J. Gremillion, Hynes & Gremillion, Baton Rouge, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Warren J. Hebert, Asst. Dist. Atty., for plaintiff-relator.
   SUMMERS, Justice.

On February 22,1974 Joseph Cotton, Paul “Pony Cat” Smith and Reynard Bell plotted to burglarize a mobile home structure located on a used car lot at 6274 Scenic Highway in the Parish of East Baton Rouge. About six o’clock that evening Cotton and Bell approached the structure from the rear, pried a small window open and gained entrance. Smith pried the front door open and joined them.

As they were rummaging through the contents in search of money, they heard a vehicle approaching. Arthur C. Brister, who operated the car lot and used the mobile home as an office, arrived. He was accompanied by Charles David and Pierre Brignac, two fishing companions. They were returning a boat and trailer to Bris-ter’s shed nearby.

Brister then approached the mobile home and saw that the door was open. He called to his companions saying the mobile home was all messed up. As David and Brignac approached to examine the damage, a tall black man armed with two pistols appeared in the doorway of the mobile home. When Brister called out, “Wait a minute”, the tall man shot him in the chest. Brister fell to the ground mortally wounded.

David ran from the scene as two smaller black men, later identified as Joseph Cotton and Reynard Bell, emerged from the mobile home. As David ran around the mobile home, he thought the two smaller black men were chasing him but, when he fell to the ground, the two smaller men ran past him and into a nearby field and disappeared. It was then that Smith, the taller of the three, who had shot Brister, approached David and demanded his wallet at gunpoint. When he obtained the money he fled.

Cotton was arrested on February 26, 1974. He was charged with the armed robbery of David, tried, convicted on June 27, 1974 of simple robbery, and sentenced to five years at hard labor. On appeal his conviction was affirmed by this Court. See 341 So.2d 355.

The instant prosecution was instituted by a grand jury indictment filed on April 17, 1974 charging Cotton with the second degree murder of Brister. A defense motion to quash the indictment was filed on the ground of double jeopardy. The motion alleged that the prosecution of Cotton for second degree murder was an effort to prosecute for an offense which was substantially and legally identical with the offense for which he was convicted on June 27, 1974. The motion was heard and sustained on January 6, 1975. Certiorari was granted on the State’s application for review of the ruling.

The right against double jeopardy is embodied in the Federal and State Constitutions. U.S.Const. Amend. V; La.Const. art. I, § 9 (1921); La.Const. art. I, § 15 (1974); Wickberg v. Henderson, 292 So.2d 505 (La.1974). It is the guarantee against a second prosecution for the same offense after acquittal; against a second prosecution for the same offense after conviction; and against multiple punishments for the same offense.

The principle is stated in Article 591 of the Code of Criminal Procedure:

“No person shall be twice put in jeopardy of life or liberty for the same offense, except, when on his own motion, a new trial has been granted or judgment has been arrested, or where there has been a mistrial legally ordered under the provisions of Article 775 or ordered with the express consent of the defendant.”

and, by the terms of Article 596,

“Double jeopardy exists in a second trial only when the charge in that trial is:
(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.”

When judged by these principles the facts before us do not present a case of double jeopardy. According to the State’s answer to a defense application for bill of particulars, the State intended to rely in this prosecution upon the proposition that “[a]ll 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 in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” La.Rev.Stat. 14:24.

In this light, the actions of Smith, who shot and killed Brister, makes Cotton a principal to that offense. The offense charged is second degree murder defined as follows:

“Second degree murder is the killing of a human being: .
(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill.”

Further, in answer to the defense application for bill of particulars, the State advised that it would not contend that at the time of Brister’s death the defendant was engaged in the crime of simple robbery. It is indicated, therefore, that the State’s reliance would be that Brister was killed while Smith was engaged in the perpetration of aggravated burglary. Aggravated burglary is a crime which can be committed by the unauthorized entering of any structure with intent to commit a theft therein while armed with a dangerous weapon. La. Rev.Stat. 14:60. If Smith was guilty of second degree murder Cotton, as a principal, was likewise guilty of the same offense.

From the facts available to the Court on this record, and the record of Cotton’s conviction of simple robbery, Cotton was convicted of simple robbery on the theory that Smith committed a simple robbery of David, and Cotton was likewise guilty of the same offense as a principal. This follows because Cotton was concerned in the commission of the crime and was guilty even though he did not directly commit the act of robbery. La.Rev.Stat. 14:25.

The question presented is whether double jeopardy will result from this prosecution for second degree murder because Cotton has been convicted of simple robbery for the events which occurred at the car lot on the night of February 22.

Louisiana applies the “same evidence” test in determining if a second trial constitutes double jeopardy. This test holds that offenses are the same if the elements required to support conviction upon one of the offenses would have been sufficient to warrant a conviction upon another offense. That is to say, where the gravamen of the second offense is essentially included within the offense for which first tried, the second prosecution is barred because of former jeopardy. State v. Smith, 323 So.2d 797 (La.1975); City of Baton Rouge v. Jackson, 310 So.2d 596 (La.1975); State ex rel Wickberg v. Henderson, 292 So.2d 505 (La.1974).

The “same evidence” rule is not intended to indicate that an offender, who goes on a crime spree and violates more than one criminal statute within a short time span, cannot be prosecuted for more than one offense without violating the prohibition against double jeopardy. State ex rel Wickberg v. Henderson, supra.

Examples of valid prosecutions for multiple crimes committed within a narrow time span may be found in our decisions in State v. Pettle, 286 So.2d 625 (La.1973); State v. Richmond, 284 So.2d 317 (La.1973); State v. Ysasi, 222 La. 902, 64 So.2d 213 (1953); State v. Cannon, 185 La. 395, 169 So. 446 (1936).

In the case at bar the two offenses committed by Smith, the killing of Brister and the robbery of David, for which Cotton is responsible as a principal, were committed on different victims and at different times in different locations. The proof of the second degree murder charge will not need the evidence which was required to establish the simple robbery of David. The gravamen of the second degree murder offense — the killing of Brister — was not necessary to Cotton’s conviction of simple robbery.

The cases relied upon by the defense are distinguishable in important particulars. In State v. Bonfanti, 262 La. 153, 262 So.2d 504 (1972), for instance, the defendant was prosecuted for simple battery for throwing a juvenile girl to the ground and putting his hand under her dress. Thereafter he was prosecuted for indecent behavior with the same juvenile for the same conduct. We held that the second prosecution was barred by the guarantee against double jeopardy.

The same is true of the case of State v. Didier, 262 La. 364, 263 So.2d 322 (1972), where the Court held that a conviction of malfeasance in office barred prosecution for simple robbery and theft where the acts of malfeasance were the identical robbery and theft.

In the case at bar, however, the offense did not involve the same victim or the same conduct, even though in the case before us the two offenses occurred in a short time span.

The most persuasive language of this Court to which reference can be made to support this decision is to be found in State v. Richmond, 284 So.2d 317, 322 (La.1973). There we said:

“In the case at bar, essentially the same evidence was used in both prosecutions. The purpose for which the evidence was used, however, was very different. Evidence of the murder of Mrs. Adams at the initial trial of the defendant for the murder of Mr. Adams was introduced merely as part of the res ges-tae. The conviction of the defendant for the murder of Mr. Adams in no way required proof that the defendant also killed Mrs. Adams. Likewise at the trial for the murder of Mrs. Adams evidence that the defendant also killed Mr. Adams was admissible as part of the res gestae, but formed no part of any essential element of the State’s case. In neither instance was the defendant at any time in jeopardy for the murder of the other victim. As pointed out above, the State had no alternative under our law but to proceed as it did.”

In addition to the fact that the records now before us do not indicate that double jeopardy will occur by prosecuting Cotton for second degree murder, it should be noted that the State advised the defense in furnishing a bill of particulars that other evidence, not yet before us, will be used in this prosecution.

For the reasons assigned, the ruling of the trial judge maintaining the plea of double jeopardy is overruled and the case is remanded to the trial court for further proceedings not inconsistent with this opinion.