author: SUMMERS, Justice. TATE, Justice,

text:
    STATE of Louisiana v. Albert HAWTHORNE and Ruby Hawthorne (Burton).
    No. 61808.
    Supreme Court of Louisiana.
    Nov. 13, 1978.

      Milton P. Masinter, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Appellants Albert and Ruby Hawthorne were jointly charged with possession of heroin on October 29, 1975, a crime denounced by Section 966 of Title 40 of the Revised Statutes. In a jury trial on January 13, 1977 they were found guilty as charged. Prior to sentencing, bills of information were filed under the Habitual Offender Law charging each appellant with a prior felony conviction. La.Rev.Stat. 15:529.1. A hearing was held on these recidivism charges and appellants were found guilty. On the State’s motion each appellant was sentenced to imprisonment for nineteen years as an habitual offender under the provisions of the Habitual Offender Law, and without entitlement to diminution of sentence for good behavior as authorized by Section 571.3 of Title 15 of the Revised Statutes.

Only those assignments of error urged on this appeal are reviewed in this opinion.

Assignments 1, 2 and 17: Defense counsel declared in his opening statement that he intended to prove that appellant Ruby Hawthorne’s daughter, Sheryl Burton, planted narcotics in the residence occupied by Albert and Ruby Hawthorne in order to get Albert in trouble because she disliked him, and that it was the daughter Sheryl Burton who called the police and told them that narcotics were in the house. Defense counsel also stated that, without intending such a result, Sheryl’s plan also implicated her mother, Ruby Hawthorne, in the narcotic offense. Furthermore, according to defense counsel’s opening statement, appellants and other witnesses would testify that Albert was beaten by the police in his own house.

' When the State’s attorney objected to the statement that the police had beaten Albert as being irrelevant, the trial judge sustained the objection, ruling that no foundation had been laid to prove police beatings. In addition, he ruled that he would limit defense counsel in his opening statement to what he intended to prove. Because of this ruling defense counsel moved for a mistrial, which was denied. Thereafter the issue thus presented was urged as a basis for a new trial.

The correctness of the ruling, that a foundation must be laid before the defense can prove that the police beat Albert, is questionable and not supported on any rational basis by the trial judge or in the State’s argument at the trial or in brief. At the same time the defense makes no showing that the beating is relevant to the issue of possession of heroin.

In any event, the issue presents no prejudice to the defense. During the trial the State introduced evidence in an effort to show that Albert received injuries when he resisted arrest and that the arresting officers were compelled to subdue him. In doing so they testified they did not brutalize him even though Albert thrashed about during the encounter, requiring three policemen to quiet him. Apparently, because of the exertion, Albert passed out. He was revived by ingestion of sugar watér and syrup.

As the police left the house with Albert on the way to the hospital, a defense witness testified that Albert appeared sick, and blood was streaming from his mouth or nose. Albert’s mother-in-law saw him in the hospital that night. She testified for the defense that Albert was bleeding from the mouth, had scratches on his ear, and his face appeared to be “kind of beat in.”

In rebuttal the State produced the doctor who examined Albert when he entered the hospital. The doctor saw no blood or cuts on Albert’s mouth, no scratches across his neck or the side of his face, or swelling in Albert’s hands. He did observe, however, an abrasion on Albert’s left wrist.

It is evident from this summary of the evidence on the subject, that the question of police brutality was fully explored and the limitation of defense counsel’s opening statement was inconsequential.

On appeal the concern is not the technical correctness of the ruling of the trial judge; appeals by the accused are designed to rectify injuries to him caused by improper trial court conduct, or by departure from a constitutional norm or a specific legislative enactment. La.Code Crim.Pro. art. 921.

Assignments 8, 9 and 12: Officer Robert McNeil, assigned to the Narcotic and Drug Abuse Section of the New Orleans Police, testified that early on October 29, 1975 he and several other officers obtained a search warrant to search the residence at 2026 Second Street, the Hawthorne residence. Upon entry they found Ruby and Albert Hawthorne and another black male present in the front room. Albert was presented with a copy of the warrant, and all those present were advised of their rights and informed that at that time they were under investigation for possession of narcotics. A detailed and systematic search of the residence followed, resulting in the discovery of two bags, or tinfoil packages, containing brown powder inside a radio on the refrigerator in the kitchen. At the same time that Officer McNeil discovered the two bags of brown powder he believed to be heroin, he found a larger piece of tinfoil containing a white powder. This latter item became Exhibit S-4 at the trial.

The defense contends that the State introduced the white powder (S-4) into evidence without identifying the substance either chemically or by a scientific or commercial name. Further, it is asserted the prosecutor, by intimation, gave the jury the impression that this white powder was a “cutting substance” used by dope “pushers” to dilute narcotics. By doing so, the argument goes, defendants were inferentially identified as “pushers” or distributors of narcotics, a crime more heinous and unpopular than possession of narcotics, the crime charged. From this premise defense counsel reasons that the State introduced evidence of other crimes, impermissible under the rule of State v. Prieur, 277 So.2d 126 (La.1973). The contention is not well-founded.

The trial judge sustained defense counsel’s objection to the prosecutor’s questions to Officer McNeil: “Have you ever heard of a cutting substance?” and “My question is what is a cutting substance used for if someone were merely a drug user?” The trial judge also refused to permit Officer McNeil to refer to S-4 as a “cutting substance” because it had not been properly identified, and S-4 was only admitted into evidence for the purpose of showing that it was not heroin, a fact to which a state witness testified. Therefore, S — 4 was never shown to be a cutting substance, and it was not evidence of the other more heinous crime of distribution of heroin.

Assignment 11: On direct examination Officer McNeil testified that when Albert and Ruby Hawthorne were arrested they were not transported to the narcotics office as they would have been under normal procedure because Albert wanted to go to the hospital. Ordinarily, in a narcotics case, the accused is examined for track marks at the narcotics office. In this instance, however, McNeil testified the best he could do was to perform a cursory examination of Albert’s arm in the hall at the hospital. In doing so active track marks were found on both arms.

When cross-examined by defense counsel, McNeil was asked if he had testified on direct that he examined Ruby’s arm .and found track marks. He replied that he had not examined Ruby’s arm but that he did examine Albert’s arm and found track marks. He was then asked if he had recorded that finding “by diagram”. When he answered that his only chance to examine Albert’s arm was while he was lying on a couch in the hospital hallway, he was again asked by defense counsel if he had recorded this fact. He replied that he had not. The trial judge, in an apparent effort to clarify the answers, then asked if these facts were in McNeil’s police report, and he answered that they were not.

On redirect examination the prosecutor presented the police report to McNeil to refresh his memory. After reading the report, McNeil stated that the reference to “Hawthorne” in the report was a reference to Ruby, and that the report contained no reference to the fact that he had examined Albert’s arm and found track marks there. At the conclusion of McNeil’s testimony, defense counsel called for the production of the report for examination and the trial judge denied the request. Defense counsel objected and the ruling is assigned as error.

There are several factors which militate against the defense contention that the police report should have been produced. McNeil’s testimony that he examined Albert’s arm and found track marks was in no way grounded upon anything contained in the police report. By his persistent questioning defense counsel elicited from McNeil the fact that he did not record this finding. In connection with the questions and answers, the trial judge asked McNeil if the information was contained in the police report. Thus, in effect, defense counsel prompted the use of the report, despite the fact that the report played no part in McNeil’s testimony relating to track marks. State v. Graves, 301 So.2d 864 (La.1974).

McNeil’s testimony relative to Albert’s track marks was an independent recollection of the events which transpired on the night of the crime. It is only when the witness has no independent recollection of what occurred, and his testimony is the product of what he has just read in his report prepared at an earlier time, that the defense is entitled to examine the report for the purpose of cross-examining the witness. La.Rev.Stat. 15:279; State v. Perkins, 310 So.2d 591 (La.1975) and State v. Tharp, 284 So.2d 536 (La.1973).

Assignments 14 and 17: Sheryl Burton testified for the State. She is the eighteen-year-old daughter of Ruby Hawthorne and step-daughter of Albert Hawthorne. It was her trip to the police which resulted in the issuance of the search warrant and the arrest of appellants. She told the jury that it was she who had planted the heroin in the radio in the Hawthorne kitchen. She also testified, apparently to the surprise of defense counsel, that she had signed “on a lie detector test.” Then, under questioning by defense counsel, she stated that her father and mother were not present at the time, she did not understand what was going on, the test was administered at police headquarters, and the police had picked her up at her house and taken her back home.

Although no results of the lie detector test were permitted in evidence, in his closing argument defense counsel sought to discredit Sheryl’s testimony in that regard by saying:

“When Sheryl Burton took the stand and said she took a lie detector test, did she describe the machine? Were any questions asked of you if things were put on her wrists, her body, her head? How do I know? You saw the girl. I’m not saying anything about it. She appears to be a little slow. They may have shown her a machine like this and said “talk into it, that’s going to tell us whether you’re telling the truth or not.”

At this point the State’s attorney objected, and the trial judge sustained the objection on the ground that the remarks were not related to any evidence brought out on the witness stand. The ruling was correct.

Article 774 of the Code of Criminal Procedure requires that closing argument be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the State or defendant may draw therefrom, and to the law applicable to the case. The quoted part of the defense argument was not supported by the evidence.

Assignment 16: In his closing argument the prosecutor said:

“When Mr. Masinter [defense counsel] says you’re not the conscience of this society, I believe he’s wrong. The reason why? You’re picked from all walks of society. Some of you are rich. Some of you are poor. Some of you live in big houses. Some in small. But, you represent a cross-section of everybody in this City. And, if you return with a verdict of guilty as charged or with a verdict of not guilty, you’re declaring what the community thinks of people who use heroin. And, you [are] declaring that in this community, that you think that it may be o.k. for users of heroin, who possess heroin in that house to do so, in their own home. And, you’re saying in essence that you do not agree with the law that it should be against the law.”

Defense counsel objected and the trial judge admonished the jury that he would instruct them on the law to apply to the case. In view of the admonition, the prosecutor’s argument does not amount to reversible error. Compare State v. Quallo, 353 So.2d 978 (La.1977). See also, State v. Coates, 273 So.2d 282 (La.1973).

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

DIXON, J., concurs.

TATE, J., dissents and assigns reasons.

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

TATE, Justice,

dissenting.

I respectfully dissent.

Assignment 11 presents clear error. While on the stand, a police officer was permitted to refresh his memory and to clear up inconsistencies in his testimony by examining, while on the stand, his police report, which was handed him by the prosecutor. Nevertheless, defense counsel’s request was denied to have access to the same police report for purposes of further defense examination of this witness.

Although the officer was permitted to rehabilitate his testimony by examining the police report on the stand, the defendant counsel’s was denied the right to cross-examine this witness as to the conclusions he had drawn before the jury from this paper (secret to the jury and to opposing counsel). This denial of cross-examination, by the refusal to permit opposing counsel access to a document used by the witness to support his testimony while on the stand, has been held to be reversible error. State v. Perkins, 310 So.2d 591 (La.1975); State v. Tharp, 284 So.2d 536 (La.1973).

It does not seem to me that this clear error can be harmless. The issue as to which cross-examination was denied related to the defendant’s guilty knowledge (instanced by track marks of narcotics use found or not found at the time of arrest), a central issue in this heroin-possession prosecution.

Any doubts I have on the harmful effects of this clearly erroneous ruling are resolved in favor of reversal by other trial errors of an' arbitrary and one-sided nature in favor of the prosecution. The trial judge limited the defense counsel’s opening statement as to the basis of his defense (improperly, as the majority notes), while the state’s closing argument (that if the jury returned a verdict of not guilty, it was declaring that the community approved the use of heroin) was so clearly improper and prejudicial as to warrant a mistrial rather than an admonition, especially in view of the previous errors tending to deny the accused adequate cross-examination of a principal state witness and a fair trial in general.

As we stated today in State v. Hayes, 364 So.2d 923 (docket no. 62255), this type of appeal to prejudice is prohibited by La.C.Cr.P. art. 774. See also State v. Kaufman, 304 So.2d 300 (La.1974). The attempt to turn the verdict into a plebescite on heroin use, and to predict bad community consequences if the accused were found not guilty, is condemned by the American Bar Association Standards Relating to the Pros-ecutional Function, Standard 5.8(d) (1971): “The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.”

In cumulation, if not singly, the errors presented are so prejudicial that the defendants were denied a fair trial. Their convictions should be reversed, and the case remanded for a new trial, this time in accordance with law.

      . La.Rev.Stat. 15:571.3:
      “A. Every prisoner in a parish prison convicted of a misdemeanor and sentenced to imprisonment for one year or more may earn a diminution of sentence, to be known as “good time,” by good behavior, as follows: two months for the first year; two months for the second year; three months each for the third and fourth years; and four months for each subsequent year.
      “The sheriff of the parish in which the conviction was had shall have the sole power to determine when good time has been earned on which diminution of sentence may be allowed.
      “B. Every prisoner in the state penitentiary who has been convicted of a felony and sentenced to imprisonment for one year or more may earn a diminution of sentence by good behavior, to be known as “good time.” The warden of the state penitentiary shall have the sole power to determine when good time has been earned on which diminution of sentence may be allowed. The amount of diminution of sentence allowed shall be as otherwise provided by law.”


source: Caselaw Access Project

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

license: Public Domain

text:
    STATE of Louisiana v. James A. HAYES.
    No. 62255.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Rehearing Denied Dec. 14, 1978.
    Robert Glass, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., G. Michael Grosz, Abbott J. Reeves, Asst. Dist. Attys., Gretna, for plaintiff-appellee.
   DIXON, Justice.

On February 3, 1977 Clyde McCoy, an undercover narcotics officer for the Louisiana State Police, went to the apartment of Lionel Webb in Kenner, Louisiana. Agent McCoy carried with him three amber colored bottles containing 435 grams of quinine and 13 ounces of lactose, substances frequently used to dilute the strength of heroin. At Webb’s apartment the officer met with a black man alleged to be James A. Hayes who tested the substances and then offered McCoy heroin in exchange for them. After Lionel Webb tested the offered heroin’s quality and found it satisfactory, Hayes allegedly used a business card to separate the heroin into smaller units and gave twenty-one papers inside a prescription bottle to McCoy. He then is alleged to have given McCoy the business card and to have told him to get in touch for any future transactions.

Defendant was charged by grand jury indictment with distribution of heroin in contravention of R.S. 40:966. On October 19, 1977 a jury convicted him as charged and eight days later Hayes was sentenced to life imprisonment, the mandatory term under the statute. The defendant now appeals his conviction and sentence in reliance on three assignments of error filed in the court below.

Defense counsel argues, in Assignment of Error No. 1, that the trial court improperly restricted the voir dire of prospective jurors. Counsel attempted to explore the jurors’ attitudes toward a defendant who remained silent at trial. The State quickly objected:

“MR. USPRICH:
As the Judge has explained to you already, the defendant is not required under our law to take the witness stand. However, I know that there is a tendency among people, and I know quite a few members of my family and friends feel that they want to hear both sides of the story. But, the defendant is not required to take the witness stand in his own behalf and we will tell you and the Judge will tell you in the charge to you, that you can’t hold this against him. However, do any of you feel that you want to hear his side of the story?
MR. GROSZ:
Objection.
THE COURT:
The Court is going to sustain the objection. The question is: Would you take the law as this Court gives it and not hold it against this defendant because the law does not require him to take witness stand? Would you give me that commitment?
MR. USPRICH:
Do each of you feel that you can give the State and the defendant a fair trial? Thank you very much.”

In response to the court’s ruling, the defense then adopted a broad line of inquiry and did not return to the issue. The voir dire record otherwise includes two general statements made earlier by the trial judge acknowledging the defendant’s right to remain silent at trial; defendant did testify in his own defense.

The Louisiana Constitution of 1974 assures a criminal defendant “the right to full voir dire examination of prospective jurors and to challenge jurors peremptorily.” Art. 1, § 17. In the past we have recognized that the purpose of voir dire is to discover bases for challenges for cause and to secure information for the intelligent exercise of peremptory challenges. State v. Drew, 360 So.2d 500 (La.1978); State v. Jackson, 358 So.2d 1263 (La.1978). The defendant must be given wide latitude in the exercise of this substantial right, State v. Holmes, 347 So.2d 221 (La.1977); State v. Hills, 241 La. 345, 129 So.2d 12 (1961) (on rehearing), and pertinent inquiries should be allowed if they can possibly show grounds for a challenge for cause, or if they will enable counsel to make intelligent use of peremptory challenges. State v. Williams, 346 So.2d 181 (La.1977).

Before the objection, defense counsel had begun to probe the jurors’ attitudes toward a defendant who remained silent at trial. The defense brief argues that the defendant’s right to silence is a difficult one for the jurors to understand because it goes against a natural desire to hear all sides of a story, and that some jurors might have difficulty according the presumption of innocence to the silent defendant. Such attitudes are better discovered through informal questioning keyed to common experience than formal recitations of legal requirements. A juror’s response to less imposing questions may well reveal attitudes .and biases not disclosed by superficially correct answers.

In State v. Monroe, 329 So.2d 193 (La.1976), we specifically rejected the State’s contention that unjustified restrictions on voir dire concerning the presumption of innocence were cured by a general instruction that the jurors must follow the law as given to them by the court. In the instant case, the trial judge’s rephrasing of the question may have given rise to a cause challenge, but the bases for peremptory challenges often arise from less evident considerations. As this court noted in State v. Hills, supra:

“ . . . the scope of inquiry is best governed by a liberal discretion on the part of the Court so that if there is any likelihood that some prejudice .is in the juror’s mind which will even subconsciously affect his decision, this may be uncovered. It is by examination into the attitudes and inclinations of jurors before they are sworn to try a case that litigants are enabled to reject those persons, by use of peremptory challenges where necessary, who are deemed to be unlikely to approach a decision in a detached and objective manner. . . .” 241 La. at 396, 129 So.2d at 31.

It is often said that the scope of voir dire falls within the sound discretion of the trial court (C.Cr.P. 786; State v. Dominick, 354 So.2d 1316 (La.1978); State v. Crochet, 354 So.2d 1288 (La.1976)). However, the trial judge is required, particularly since the adoption of the Louisiana Constitution of 1974, to temper the exercise of this discretion by giving wide latitude to the defendant in his examination of prospective jurors so that he may intelligently exercise challenges for cause and peremptory challenges. State v. Boen, 362 So.2d 519 (La.1978). We therefore conclude that the trial judge was in error to restrict the voir dire.

Assignment of Error No. 2, while not presenting reversible error for reasons following, will be discussed to prevent the recurrence of error in a new trial.

By this assignment the defendant urges that the trial judge did not take appropriate action to quell improper and prejudicial remarks made by the State during closing argument. At various points in argument, the prosecutor made appeals to the jury beyond the evidence admitted in the case. At one point he made a statement concerning his personal views of the defendant’s innocence:

“He starts off that this man wasn’t there and he tries to make this whole thing look like a big frame-up and then about five minutes after that, when he gets down to the end of his closing arguments, he admits that probably there was a narcotics transaction that took place, but the police couldn’t get the right guy and they went out and grabbed poor Mr. James Hayes. Well, if you believe that, I’m in the wrong profession and these men are in the wrong profession (indicating), because these things are very closely scrutinized to make certain that we don’t have the wrong man.”

Following closely upon the last remark came this appeal to the jury:

“I can tell you that it’s worth plenty to a drug peddler, because it’s easier to get ahold of heroin than it is to get ahold of the cutting agents. I don’t like to be repetitious, but I’ll tell you this, and it’s what I say in every narcotics case that I try: If you turn this heroin peddler loose, you are turning a cancer loose on this society, because it’s going to be your kids or the police’s kids or my kids who will be the next ones that are going to get ahold of this stuff. I can tell you that we are making headway with the heroin traffic, because we are putting them away. They don’t want to stay around here any more and they have been leaving the New Orleans area and they have been leaving Jefferson Parish, because the life sentences and that’s why we have life sentences, for that reason. We have life sentences for this so that we don’t have armed robberies and burglaries and other crimes like that. I suggest to you, ladies and gentlemen, that it would be a travesty of justice to turn this man loose. Every person in this community would be effected (sic) if you people turn him loose. You’ve got a pusher, a big pusher, and you have an opportunity to do something about if and I pray that you do. Thank you very much.”

Article 774 of the Code of Criminal Procedure provides that the argument must be confined to “evidence admitted, to lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and the law applicable to the case.” In State v. Kaufman, 304 So.2d 300 (La.1974), this court reversed a conviction because, among other errors, the prosecutor argued that he personally believed the defendant to be guilty and that he would not be in court if he did not because he had discretion to institute prosecutions as he saw fit. In this case, the prosecutor’s argument is cut from the same cloth — the jury should believe the defendant guilty because the energies of law enforcement personnel would not be squandered on a weak case.

Article 774 also prohibits an appeal to prejudice in argument in Kaufman, su pra, we cited with approval the American Bar Association Standards relative to the prosecutorial function, Standard 5.8(d): “The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.” By reference to this standard, it becomes clear that the prosecutor’s arguments were improper since they attempted to turn the verdict into a plebiscite on heroin and heroin dealers and predicted dire consequences for society as a whole if Hayes were set free.

Defense counsel, however, failed to object to either comment, to ask the court for an admonition, or to move for a mistrial at any time. Therefore, in the ordinary course of matters, we would consider foreclosed any objection raised for the first time on appeal, since any irregularity or error must be objected to at the time of its occurrence. C.Cr.P. 841. The defendant therefore raises the proposition that the trial court, having been alerted by earlier objections to the prosecutor’s arguments, should have monitored the rest of the argument for fairness and should have admonished the prosecutor for his remarks on its own motion. Furthermore, the argument continues, the trial judge’s failure to take such action so taints the verdict as to compel a retrial.

Our jurisprudence recognizes certain limited exceptions to the contemporaneous objection rule embodied in Article 841. In State v. Lee, 346 So.2d 682 (La.1977), we reversed a trial court ruling which in effect would have allowed the prosecution to repeat prejudicial remarks if the defense did not object to them the first time they were uttered. In State v. Ervin, 340 So.2d 1379 (La.1976), we reviewed a defendant’s assignment of error relating to the introduction of other crimes evidence despite his failure to move for a mistrial. There we held that a defendant who had made every reasonable effort to prevent the statement’s introduction in evidence was not required to move for a mistrial or admonition from the same judge who had permitted the evidence to be introduced, as to do so would be a vain and useless thing. We have also recognized the practicalities of criminal litigation in State v. Gaines, 354 So.2d 548 (La.1978), wherein we held that the defense counsel, who may wish to avoid prejudice to his client arising from interrupting the prosecutor too frequently, may timely move for a mistrial at the conclusion of the opening or closing statement.

However, the defendant’s position is not supported by the judicially created exceptions to Article 841. Defense counsel made no motion for mistrial at the close of the State’s rebuttal and therefore can find no relief in State v. Gaines. Moreover, in this case the trial judge sustained several other defense objections during closing argument; requiring a contemporaneous objection cannot now be construed to be a vain and useless action within the Ervin exception to Article 841. Finally, the facts of the Lee case are clearly inapposite to those of the instant case, for in Lee we dealt with objections asserted after an initial silence; here the objections were followed by silence at the most egregious remarks.

Nevertheless, State v. Lee, supra, contains some support for the defendant’s position because we therein noted “that a prosecutor’s prejudicial comments in closing argument may be considered by a federal court to violate federal due process guarantees even in the absence of a defense challenge or objection at trial. United States v. Briggs, supra (457 F.2d 908 (2d Cir. 1972)); United States v. Grunberger, 431 F.2d 1062 (2d Cir. 1970); United States v. Sawyer, 347 F.2d 372 (4th Cir. 1965).” 346 So.2d at 685.

In Briggs, the Second Circuit observed that improper argument will require reversal by the appellate court even in the absence of defense objection “if the summation was ‘so extremely inflammatory and prejudicial’ . . . that allowing the verdict to stand would ‘seriously affect the fairness, integrity or public reputation of judicial proceedings’ ”, supra at 912. The rationale of Grunberger and Sawyer turns on different considerations, the reticence of the defense attorney to object to improper statements for “fear that an objection would only focus attention on an aspect of the case unfairly prejudicial to his client. If the presiding judge perceives that trial counsel has been placed in this dilemma, it is the judge’s duty, on his own initiative, to interrupt, admonish the offender and instruct the jury to disregard the improper argument.” United States v. Sawyer, 347 F.2d at 374.

Upon examining the State’s closing argument, we are unable to agree with defense counsel that due process was offended when the trial judge failed to admonish the prosecutor on his own initiative. First, it is clear that the defense counsel did not refrain from objecting out of concern for stressing prejudicial arguments in the jurors’ minds. Second, substantial evidence against defendant in the record prevents the errors in the prosecutor’s argument from becoming such violations of due process rights that would require a reversal in the absence of defense objections.

Therefore, Assignment No. 2 does not present reversible error, but should not be repeated in a new trial.

Because we reverse defendant’s conviction on Assignment No. 1, we do not treat Assignment No. 3, an attack on the constitutionality of the mandatory life sentence.

For the reasons assigned, the conviction and sentence are reversed and the case is remanded to the district court for further proceedings consistent with the views expressed herein.

SUMMERS, J., dissents.

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

MARCUS, J., dissents and assigns reasons.

SANDERS, Chief Justice

(dissenting).

The majority reverses the conviction, because the trial judge sustained the State’s objection to the following defense question directed to prospective jurors on voir dire examination:

“As the Judge has explained to you already, the defendant is not required under our law to take the witness stand. However, I know that there is a tendency among people, and I know quite a few members of my family and friends feel that they want to hear both sides of the story. But, the defendant is not required to take the witness stand in his own behalf and we will tell you and the Judge will tell you in the charge to you, that you can’t hold this against him. However, do any of you feel that you want to hear his side of the story 1” [Emphasis added.]

In sustaining the objection, the trial judge ruled that the form of the question was objectionable, stating that the proper form was: “Would you take the law as this Court gives it and not hold it against the defendant because the law does not require him to take the witness stand?”

In my opinion, the ruling of the trial judge was correct. The proper formulation is not whether an individual juror would like to hear defendant’s “side of the story,” but whether he would penalize the defendant for exercising his right not to testify. The trial judge did not bar examination on the subject. Rather, he indicated that the question required rephrasing.

For the reasons assigned, I respectfully dissent.

MARCUS, Justice

(dissenting).

The scope of voir dire examination is within the sound discretion of the trial judge and his rulings should not be disturbed on appeal absent a clear abuse of that discretion. Moreover, to determine whether a trial judge has in fact afforded a sufficiently wide latitude to a defendant in examining prospective jurors, a review of the trial judge’s rulings should be undertaken only on the record of the voir dire examination as a whole. Applying these principles to the facts of the case, I am unable to say that the trial judge clearly abused his discretion. Accordingly, I respectfully dissent.


author: CALOGERO, Justice.

text:
    FLOWERS, INC. v. Mrs. Lucy Reid RAUSCH, Clerk of Court, Parish of St. Tammany and Collector of Revenue, State of Louisiana.
    No. 61833.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Attorneys for the Secretary of the Dept, of Revenue and Taxation, State of Louisiana, Edwin M. Callaway and W. Steven Mannear, Baton Rouge, for defendant-applicant.
    Barranger, Barranger, Jones & Fussell, William J. Jones, Jr., Covington, Anderson, Leithead, Scott, Boudreau & Savoy, Randall E. Roach, Lake Charles, for plaintiff-respondent.
   CALOGERO, Justice.

In this litigation plaintiff, Flowers, Inc., succeeded in the district court and Court of Appeal in having tax assessments, filed in the mortgage records of St. Tammany Parish, ordered cancelled and erased insofar as they affected certain immovable property which plaintiff had purchased from the state’s tax debtor, Tan Ho Land and Cattle Company, Inc. The facts are more fully set forth in the opinion of the Court of Appeal. Flowers, Inc. v. Rausch, 354 So.2d 641 (La.App. 1st Cir. 1977). Plaintiff acquired the property from the Tan Ho Corporation less than ten years after the state had recorded its tax assessments (for corporate income and franchise taxes). After ten years from recordation, during which the assessments had not been reinscribed by the state, plaintiff filed this suit to mandamus cancellation and erasure.

The Court of Appeal affirmed a trial court judgment favorable to the plaintiff in an opinion which relied in part upon its interpretation of identical provisions in the 1921 and 1974 Louisiana constitutions which bar the running of prescription against the state in civil matters. The Court of Appeal determined that “prescription” did not encompass peremption. It was this constitutional interpretation which prompted our granting this writ. Flowers, Inc. v. Rausch, 356 So.2d 1006 (La.1978).

Plaintiff had contended, and the Court of Appeal agreed, that a tax assessment is the equivalent of a money judgment, the recor-dation of which is subject to the peremption period of ten years provided in C.C. art. 3369, and that such peremption runs against the state notwithstanding that both Article XII, § 13, Louisiana Constitution of 1974, and Article XIX, § 16, Louisiana Constitution of 1921, provide:

“Prescription shall not run against the state in any civil matter, unless otherwise provided in this constitution or expressly by law.”

In this litigation we must decide whether and to what extent the effect upon third parties of recordation of the tax assessment continues after ten years have elapsed without timely reinscription.

We proceed here to discuss pertinent provisions of the civil code and revised statutes which bear upon our resolution of the issues in this case.

R.S. 47:1581 provides:

“Any tax, penalty, interest, or other charges duly assessed under this Subtitle, being the equivalent of a judgment, shall not be subject to the running of any prescription other than such prescription as would run against a judgment in favor of the State of Louisiana in accordance with the Constitution and laws of this state; and the recordation of such assessment shall have the same effect as the recordation of a judgment.” (Emphasis supplied)

Thus, under the law tax assessments are equivalent to judgments. Judgments, including money judgments, give rise to judicial mortgages in favor of the person obtaining them, La.Civ.Code art. 3321; the judicial mortgage takes effect when recorded as the law requires. La.Civ.Code art. 3322.

Judicial mortgages are allowed to prejudice third parties only when they are recorded. La.Civ.Code art. 3342. No mortgage, judicial or otherwise, shall affect third parties unless recorded in the parish where the property to be affected is situated. La.Civ.Code art. 3347. Article 3369 says that the effect of the registry of mortgages ceases in all cases “. . .if the inscriptions have not been renewed within . [ten years].”

Furthermore, Article XIX, § 19, Louisiana Constitution of 1921, which is now a statute under the 1974 constitution, provides that “[n]o mortgage ... on immovable property . . . shall affect third persons unless recorded or registered in the parish where the property is situated, in the manner and within the time prescribed by law, . . . Excepted from the rule stated are tax mortgages, which affect third parties even absent proper rec-ordation and registry, . . provided such [unrecorded] tax . . . mortgages . shall lapse in three years from the 31st day of December in the year in which the taxes are due . . .

A fair reading of the foregoing provisions establishes that tax assessments are judgments, recordation of which has the same effect as recordation of other judgments insofar as third parties are concerned. Thus, the encumbrances which result from the recordation cease to have effect if there is no timely reinscription within ten years in accordance with La.Civ.Code art. 3369.

These legal principles find ample support in the jurisprudence. In Pichot v. Recorder of Mortgages, 2 McGloin 68 (La.App.1884), the owner of land encumbered as a result of an inscription for taxes for the year 1871 sought a writ of mandamus to compel erasure of the inscription. The tax had been recorded in January, 1873 and the erasure was sought by suit filed in March, 1883. Resisting the plaintiff’s claim of ten years’ prescription, the state argued that prescription does not run against the sovereign. The code provisions relating to the necessity for recordation of mortgages intended to affect third parties are set forth in the Pichot opinion, and the pertinent portions of C.C. art. 3369, providing that the effect of registry ceases upon failure to timely reinscribe, are quoted. The Pichot court, in determining the applicability of art. 3369, stated:

“We have not in any manner touched upon the question of prescription as against the State.' The lapsing of a mortgage for failure to reinscribe, is not, strictly speaking, a matter or question of prescription. The mortgage is not necessarily a part of the debt; it is only an accessory right. The personal obligation may stand, though the mortgage perish. The plaintiff in this case is a third person, and it does not result at all from our decision that the State has no further recourse against the original debtor. In other words, we are not called upon to decree prescription against this debt or forced contribution, whatever it may be. We simply hold, that to maintain the necessary right of mortgage, certain formalities were necessary, and that these not having been complied with, the accessory right is perempted.”

So the result reached by the Court of Appeal in the case before us was in keeping with legal principles set forth in the Code and the statutes which dictate that insofar as encumbrances against real property owned by third parties are concerned, tax assessments lose their effect if not rein-scribed within ten years.

The more significant question is whether the constitutional provision barring prescription- against the State in civil matters precludes the granting of the relief sought here by plaintiff. The Court of Appeal found that Flowers is entitled to cancellation and erasure since only prescription, not peremption, is barred by the constitution. The Court of Appeal detailed the differences between peremption and prescription, in one instance quoting the following from Succession of Pizzillo, 223 La. 328, 65 So.2d 783 (1953):

“The difference between prescription and peremption is that the former simply bars the remedy whereas, in the latter, time is made of essence of the right granted and a lapse of the statutory period operates as a complete extinguishment of the right. [Citations omitted.] Per-emption admits of no interruption or suspension; performance of the required act must be accomplished within the specified time or else the right of action no longer exists.”

However, in Gilmore v. State, 79 So.2d 192 (La.App. 3rd Cir. 1955) the court, in discussing prescription in connection with a workmen’s compensation claim, inferred that there was little significant distinction. That court stated:

“We feel that the constitutional permission to waive ‘any prescription’ provided by Article 3, Section 35, authorizes waiver by the Legislature of any time limitation within which suit may be filed against the State, whether referred to as peremption or as prescription or (as with compensation suits) indiscriminately as either. The limitation of one year for tort and wrongful death actions under Article 2315, LSA-Civil Code, is also technically for some purposes termed one of ‘peremption’, and such tort suits can never be instituted against the State without special legislative authorization; if the legislature could not waive ‘peremption’, those injured at certain periods between the biennial sessions of the legislature could receive subsequent authorization to sue only for a perempted right. The constitutional intent is plan to authorize the legislature to waive all limitations (prescriptions) of time barring suit.”

There is indeed a difference between prescription and peremption as noted by the Court of Appeal and as pointed out in the Succession of Pizzillo, supra. Nevertheless we conclude that peremption is but a form of prescription, a species thereof, but with the characteristic that it does not admit of interruption or suspension, and we determine that the constitutional provision barring prescription bars prescription in all its forms, including peremption.

There is of course the argument that the drafters of our 1921 and 1974 Constitutions were aware of the repeated jurisprudential treatment of prescription and peremption as different and distinct theories of waiver, and that had they intended to bar the running of peremption against the state they would have distinctly said so. We reject that argument. Our conclusion is that per-emption, but a form of prescription, does “not run against the state in any civil matter, unless otherwise provided in the constitution or expressly by law.” La.Const. art. XII, § 13 (1974); La.Const. art. XIX, § 16 (1921).

Nonetheless we reach the same result as did the Court of Appeal, for the reason that the running of peremption (prescription) against the State in this civil matter is “otherwise provided . . . expressly by law.”

Our review and analysis hereinabove of the Code and statutory provisions indicates that the law does expressly provide, in connection with tax assessments (judgments) and civil litigation relative thereto, a peremption against the State (in the event of non-reinscription in ten years) of the effect of recordation against third parties. In fact, the law expressly provides for cancellation of mortgages not timely rein-scribed and cancellation in the case of encumbrances in favor of the State, as well as others, where the encumbrances “. have become unenforceable or shall have prescribed or perempted or the effect of which shall have ceased, because of lapse of time.” R.S. 9:5161-62.

Before concluding our consideration of Code and statutory provisions related to the issues before us for resolution, we must examine the provisions of R.S. 9:5685 in effect at all time pertinent to this case, enacted by Act 386 of 1974, which added a new statute to our law. The State forcefully argues that those provisions, applicable to this case and setting forth a ten year prescriptive period for recordations of all judgments in favor of the state against individuals in the amount of $1,000 or less, clearly exhibit that reinscription is unnecessary to preserve the State’s tax encumbrances in excess of $1,000. The State asserts that this legislation implies an intent that tax encumbrances over $1,000 shall neither prescribe nor perempt.

We find the argument without merit. The- statute’s effect is to cause to be prescribed by the lapse of ten years from recordation or rendition of judgment the tax claim of the state against the tax debt- or, if the claim is under $1,000. The negative implication is simply that under similar circumstances the tax claim of the state against its tax debtor where the claim is over $1,000 does not prescribe. That the statute effective between 1974 and 1977 spoke of prescription of “the recordation of all judgments” (Act 311 of 1977 deleted reference to recordation of judgments and alludes now to “all judgments in favor of the state against all persons”) is of no moment, for its effect is simply to treat of the judgment and its recordation’s efficacy “against individuals”, i. e., against tax debtors of the state. The fact that this 1974 statute was meant to apply only to the lapsing of tax assessments of under $1,000 after ten years from the date of recordation or rendition of the “judgment” is evidenced by the legislature’s swift amendment of its provisions.

Were it the purpose or intent of this statute to counter the requirement that tax assessments (judicial mortgages) be rein-scribed in ten years in order to perpetuate their effect against the property of third party acquirers, it would surely have employed language, negating the necessity for reinscription in terms as distinct and as certain as those used by the legislature in R.S. 9:5162 in speaking of “encumbrances affecting property” becoming unenforceable, prescribing or perempting or ceasing to have effect. This statute simply does not say, in anything which approaches express terms, that recordation and all of its attendant effects, even against third parties who own affected property, shall not prescribe or perempt even after the lapse of ten years and absent reinscription. It strains credulity to say that this lone statute (prior to its 1977 amendment) in its short-lived existence could by mere negative implication totally obliterate the longstanding and firmly entrenched express exception from the constitutional bar against prescription of encumbrances in the state’s favor which exists when the encumbered property is owned by third parties and the state has failed to timely reinscribe.

One of the major provisions upon which we based our determination that prescription (peremption) in these circumstances is expressly provided by law is La.Const. art. XIX, § 19 (1921) (the pertinent provisions of which are quoted near the outset of the text of this opinion), continued by the 1974 constitution as a statute. This continuation became effective December 31, 1974 at midnight and is therefore a more recent statute. Without deciding whether La. Const. art. XIX, § 19 (1921) has by implication repealed R.S. 9:5685 as enacted by Act 386 of 1974, in the applicable respect, we do determine that its continued existence, coupled with the other statutory and Code provisions which together establish an express exception to the constitutional bar (La.Const. art. XII, § 13 [1974]), minimally suggests that R.S. 9:5685 does not have the effect for which the state contends.

We believe that public policy considerations as well as positive statutory and Code provisions support the conclusion we reach here. In Shepherd v. Orleans Cotton Press Company, 2 La.Ann. 100 (1847) the Court alluded to the chaos which existed prior to the requirement of recordation of mortgages and noted that as early as the adoption of the Code of 1808 there was established in New Orleans a recording office where all conventional and judicial mortgages were to be inscribed before they could affect third persons. The opinion then referred to Article 3333 of the Code of 1825, which provided for registry and dictated that the effect of mortgages ceased if there was not timely reinscription. Shepherd states that “[Registry laws, provided they are known and certain, can work no injury.” Shepherd observes that inscription is exclusively in the power of the party having an interest to make it. “If he does not reinscribe, he cannot complain of losses sustained through his own neglect.” 2 La.Ann. 113.

Article 3333 of the Code of 1825 was the source provision of the present code article 3369, which provides for timely reinscription and decrees that the effect of registry ceases in all cases where there has been no timely renewal of inscriptions. Were it to be determined that art. 3369 is inapplicable in this case “disruption to the settled law and jurisprudence affecting title transfers in this state,” to which the Court of Appeal alluded, would surely result.

We further believe that the Court of Appeal was correct when it asserted that if art. 3369 is not applicable, a tax assessment, once recorded, would forever attach to property the tax debtor owned then or in the future, regardless of the length of years transpiring, necessitating a mortgage record search dating back to acquisition from the sovereign. In fact, this would not only be true with respect to any given present vendor, but would be equally true with respect to all prior vendors appearing in the chain of title.

Decree

Having determined that under the circumstances present in the instant case the loss of effect of registry against property of a third party (plaintiff Flowers) is expressly provided by law, so as to remove this per-emption (prescription) from La.Const. art. XII, § 13’s ban on the running of prescription against the state in civil matters, we affirm the judgment of the Court of Appeal in favor of plaintiff.

JUDGMENT AFFIRMED.

      . Actually, peremption is a common law term which has crept into our jurisprudence. Its counterpart in the civil law is really “forfeiture”. That forfeiture is merely a form of prescription is explained in 28 G. Baudry-Lacantinerie & A. Tissier, Traité Théorique et Pratique de Droit Civil §§ 38-39 (La.St.L.Inst. trans. 1972) as follows:
      “This doctrine, [one which seeks to distinguish a forfeiture, resulting from a statutory extinctive condition affecting the right itself, from prescription] and the classification based on it seem incorrect to us. In the first place, liberative prescription does not extinguish only the remedy. It acts also on the right. On this basis it is impossible to distinguish prescription and forfeiture. Secondly, we fail to see any great difference between the rules which limit specifically the term for bringing an action for annulment of marriage or rescission of a sale, and the rules in Art. 1304 which limit to ten years a series of actions for annulment or rescission. We do not understand how Arts. 809 and 880, where the articles speak expressly of prescription, can be read as providing only forfeitures. Finally, we do not think it correct to say that in all those cases there is no element of negligence causing the loss of the right. Just as in the case of an ordinary prescription, the article has in these cases the purpose of preventing certain actions from being brought after a certain lapse of time. Thus the statute aims at the negligence of those who have not acted in time, in accordance with the provisions of the law. In our opinion, wherever the civil code, the commercial code, or specific statutes impose a time limit on the exercise of a court action, it represents a prescription. Merlin’s doctrine seems correct to us. Even in the case of Art. 340, where the statute uses the term ‘forfeiture,’ it seems to us that a true prescription is involved.
      . In effect, the doctrinal distinction between forfeitures and prescriptions is without practical significance. We do not claim that all rules governing prescription apply without distinction to what the other writers call forfeitures. However, it is not necessary to explain special rules by using the term forfeiture, instead of prescription. It suffices to say that these are special types of prescriptions.”

      . R.S. 9:5161 and 9:5162 provide:
      5161. Cancellation for failure to reinscribe
      On the simple written application of the property owner, creditor of the owner, or other party interested, the recorder of mortgages, or person acting as such, shall cancel in full from the records of his office all inscriptions of mortgages affecting the property which have not been reinscribed within the period of time specified by Civil Code Article 3369. This Section shall not apply to those mortgages, the reinscription of which is dispensed with by special laws, nor to those mortgages in favor of homestead and building and loan associations.
      5162. Cancellation of inscriptions of unenforceable encumbrances; Parish of Orleans excepted
      Upon the filing in his office of a sworn written request by the owner of any real or personal property or by any other party in interest, the recorder of mortgages of each parish, except the Parish of Orleans, shall cancel in full from the records of his office the inscriptions of all encumbrances affecting the property which shall have become unenforceable or shall have prescribed or per-empted or the effect of which shall have ceased, because of lapse of time.
      This Section applies to encumbrances in favor of the State of Louisiana and all its political subdivisions, as well as to those in favor of married women, minors, and interdicts.

      . The provisions of R.S. 9:5685 applicable to this case are as follows:
      The recordation of all judgments in favor of the state against individuals in the principal amount of one thousand dollars or less, exclusive of interest, costs, penalties or attorney’s fees, shall be prescribed by the lapse of ten years from the date of recordation or rendition of such judgments.
      However, by Act 311 of 1977 the statute was amended to read:
      5685. Prescription against the state
      All judgments in favor of the state against all persons in the principal amount of three thousand dollars or less, exclusive of interest, costs, penalties, or attorney fees, shall be prescribed by the lapse of ten years from the date of the signing of the judgment if rendered by a trial court, or from its rendition if rendered by an appellate court.
      All liens and privileges in favor of the state securing a claim in the amount of three thousand dollars or less shall be prescribed by the lapse of ten years from the date of recordation of such privilege or lien, or by the lapse of a shorter prescriptive period applicable to the claim secured by the lien or privilege.

      . See footnote two, supra, for text of R.S. 9:5162.

      . La.Const. art. XIV, § 16 (1974) provides:
      Provisions Continued as Statutes
      Subject to change by law or as otherwise provided in this constitution, and except as any of them conflicts with this constitution, the following provisions of the Constitution of 1921 are continued as statutes, but restricted to the same effect as on the effective date of this constitution:

      15. Article XIX, Sections 6, 19, 19(a), 20, and 27.

      .The effective date of Act 386 of 1974 was July 31, 1974. The effective date of La.Const. art. XIV, § 16 (1974), continuing La.Const. art. XIX, § 19(1921)asa statute, (and, hence, the effective date of the statute whose provisions are the provisions of art. XIX § 19 [1921] is midnight, December 31, 1974.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. James WILKENS.
    No. 61887.
    Supreme Court of Louisiana.
    Nov. 13, 1978.

      William J. O’Hara, III, Supervising Atty., New Orleans, Paul Brady, Student Practitioner, Loyola Law School Clinic, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Donald T. Giglio, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

James Wilkens was charged by bill of information with possession of heroin, a violation of La.R.S. 40:966. After a motion to suppress evidence was heard and denied, the defendant was tried by a jury of twelve persons and convicted of attempted possession of a controlled dangerous substance. Defendant was adjudged a multiple offender, La.R.S. 15:529.1, and sentenced to life imprisonment. From this conviction and sentence the defendant appeals and sets forth ten assignments of error.

On the morning of May 26, 1976, a confidential informant whose information had led to prior arrests and convictions told New Orleans policemen that James Wilk-ens, a black male about forty years old, was selling heroin from White Fleet taxicab number 1048, near a certain intersection in the vicinity of the Magnolia Housing Project. The informant claimed that he had purchased heroin from Wilkens in the taxi on several occasions, one of which had been within the past three days; that Wilk-ens kept drugs stored in an apartment on South Robertson Street; and that Wilkens was armed with a blue steel revolver. Later the same morning a second confidential informant of unproven reliability gave police essentially the same information.

Several hours later, Officers McNeil and Peralta, and Assistant District Attorney Cuccia began surveillance of the Magnolia Housing Project from a police vehicle. The officers spotted Wilkens in White Fleet cab number 1048 parked on Washington Avenue. After observing a young woman approach the taxi, the officers drove around the block and stopped immediately behind the cab. By this time the woman had entered the cab and was “stooped over” in the front seat.

The officers alighted from their car, walked up to the taxicab and ordered Wilk-ens and the woman to get out and place their hands on the roof. After making a pat-down exploration of Wilkens’ outer garments, Officer McNeil bent down and checked the “immediate area near Mr. Wilkens” at the open door of the vehicle. He saw a hypodermic syringe containing a brown substance on the floor of the cab almost flush with the front seat. The officers then informed the occupants of the cab that they were.under arrest for possession of heroin.

Following the arrests a thorough search of the vehicle was conducted. A metal bottle cap containing a brown residue was found on the passenger side of the vehicle; a piece of folded tinfoil containing a brown powder was discovered in the ashtray; and, after defendant Wilkens gave his keys to Officer McNeil, a blue steel revolver was discovered in the locked glove compartment. Shortly after the defendant was arrested the officers obtained a warrant to search an apartment on South Robertson Street where additional drugs and paraphernalia were discovered. Defendant moved to suppress all evidence seized in the taxi and the apartment.

The police officers had no search warrant at the time they seized the hypodermic syringe, bottle cap, tinfoil packages, and revolver from the defendant’s taxicab. A warrantless search is unreasonable and violates state and federal constitutions unless the prosecution can justify the search by one of the narrowly drawn exceptions to the warrant requirement. U.S.Const. amend. IV; La.Const. art. I, § 5. See, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Fearn, 345 So.2d 468 (La.1977).

Based on the record designated for our review, the ultimate issues raised by the instant case are: (1) whether the information received by the officers from the informant together with their own observations gave the policemen probable cause to arrest Wilkens; (2) whether Wilkens was actually arrested before any search or seizure was effected; (3) whether the arrest was invalid because the officers did not intend to arrest Wilkens for the crime for which probable cause existed; (4) whether the search resulting in the seizure of the syringe was constitutionally justified as an incident of the arrest; (5) whether the officers had probable cause to conduct the search which resulted in discovery of the other evidence located in the taxicab; and (6) whether there were exigent circumstances which justified the latter search without a search warrant.

Probable cause to arrest exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. State v. Drew, 360 So.2d 500 (La.1978); State v. Herbert, 351 So.2d 434 (La.1977); State v. Ranker, 343 So.2d 189 (La.1977); State v. Marks, 337 So.2d 1177 (La.1976). In the present case, the officers had reliable and detailed information regarding the sale of heroin to one of the two informants who had contacted the police on the morning of the arrest. This information was partially confirmed by the second informant’s tip and the officers’ observations when they found defendant parked in the numbered taxicab at the designated location. Accordingly, we conclude that the police officers had probable cause to arrest the defendant for the heroin transaction reported by the first informant.

A determination from the evidence that Wilkens was fully arrested before any search was made is a reasonable finding of fact. Louisiana Code of Criminal Procedure Article 201 defines an arrest as follows:

“Arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.”

In construing the statute this Court recently stated:

“The statutory definition of ‘arrest’ is keyed to the concept of restraint. It is the circumstances indicating intent to effect an extended restraint on the liberty of an accused, rather than the precise timing of an officer’s statement: ‘You are under arrest,’ that are determinative of when an arrest is actually made.” State v. Sherer, 354 So.2d 1038, 1042 (La.1978).

In the instant case, it is evident that the officers did not approach the taxicab merely to question its occupants. On the contrary, the evidence fully supports a finding that the officers effected an arrest of Wilk-ens by placing an extended restraint on his liberty when he was asked to step from the cab and place his hands on its roof.

The record is ambiguous as to whether the officers intended to arrest Wilkens for his conduct while in the company of the female arrestee immediately before they were taken into custody or for his alleged distribution of heroin to the reliable informant three days' earlier. Portions of the officers’ testimony suggest that they intended to arrest Wilkens only for the events which occurred within their view. However, the activity observed by the officers did not give rise to a probable cause to arrest Wilkens for his deeds on the day of the arrest. The question, therefore, is whether an arrest for a crime for which probable cause does not exist can ever be justified by the probable cause to arrest for another offense. Although the question appears to be res nova in Louisiana, several of the federal courts of appeal have given an affirmative answer in cases in which the arrest was not a pretext for an illegal search, but in which the officer, who had probable cause to arrest the defendant for a related offense, simply arrested him for the wrong reason. United States v. Joyner, 160 U.S.App.D.C. 389, 492 F.2d 655 (1974); Chaney v. Wainwright, 460 F.2d 1263 (5th Cir. 1972); Ricehill v. Brewer, 459 F.2d 537 (8th Cir. 1972); Klinger v. United States, 409 F.2d 299 (8th Cir. 1969). The rationale for these holdings seems to be that, except for pretextual arrests, which are shams and not considered arrests at all, Mills v. Wainwright, 415 F.2d 787 (5th Cir. 1969); Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir. 1968); Green v. United States, 386 F.2d 953 (10th Cir. 1967), the constitution requires only that an officer’s actions be justified against an objective standard of probable cause, and it does not require that the state be penalized for a purely subjective mistake by an officer. Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Klinger v. United States, 409 F.2d 299 (8th Cir. 1969). We agree with the federal decisions and their underlying reasons. Accordingly, since probable cause existed to arrest Wilkens for the sale of heroin to the reliable informant, and because the arrest does not appear to have been effected for the purpose of creating an excuse to search, the arrest in the instant case was lawful.

When an arrest is made, it is reasonable for the arresting officer to search the “arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Chimel v. California, 395 U.S. 752 at 765, 89 S.Ct. 2034, at 2040, 23 L.Ed.2d 685 (1969); State v. Franklin, 353 So.2d 1315 (La.1977).

The syringe was discovered on the floor in front of the driver’s seat of the taxicab, and directly below the defendant as he stood by the cab’s open door with his hands on its roof. Defendant easily could have reached a weapon or evidence lying on the vehicle’s floor where the syringe was situated. Accordingly, there was ample justification for a search of this area of the floorboard because it was within Wilkens’ immediate control.

The defendant correctly contends, however, that the State must educe additional proof to justify the subsequent seizures of the other items of evidence found in the taxicab. In State v. Guzman, 362 So.2d 744 (La.1978), No. 61,328 rendered September 5, 1978, this Court set forth the “automobile emergency” exception to the federal and state constitutional warrant requirements. Drawing on the opinion of the Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) we stated:

“The cases set out two conditions that must be satisfied before a warrantless search of a movable vehicle is authorized: (1) there must be probable cause to believe that the vehicle contained contraband or evidence of a crime; and (2) there must be ‘exigent circumstances’ requiring an immediate warrantless search, i. e., the impracticability of obtaining a warrant due to the possibility that the car could be moved either by its occupants, if not arrested, or by someone else. An immediate warrantless search is, therefore, constitutionally permissible when ‘the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.’ Chambers v. Maroney, supra, 399 U.S. at 51, 90 S.Ct. at 1981, 26 L.Ed.2d at 428.”

In the present case the taxicab was searched only after the syringe containing a brown residue had been lawfully seized from inside the vehicle. The syringe, considered with all of the other facts known to the arresting officers, was sufficient to establish probable cause to conduct a full search of the taxi. A more difficult question is whether exigent circumstances were present which made it impractical for the police to secure a search warrant for the taxi.

We conclude, however, that circumstances existed which rendered the obtaining of a warrant impracticable and required an immediate search of the taxicab. The informants’ tips indicated a series of heroin sales from the taxicab had occurred at the place where the arrests were made. Undoubtedly the marked and numbered taxicab was familiar to a number of addicts as a vehicle with narcotic drugs in store. Abandonment of the cab at the scene of the recent illicit activity in which it had been involved would have presented a significant possibility that its contents never may have been found again. It was the duty of the two police officers to promptly conduct the two persons arrested to the nearest jail or police station and cause them to be booked. La.C.Cr.P. art. 228. Although it may be argued that the officers could have left the assistant district attorney in charge of the taxicab while they booked the arrestees and obtained a search warrant, the record does not reflect that the attorney was armed or qualified to perform such a function. Accordingly, there was no practical alternative available to the officers under the exigent circumstances other than an intrusion into the arrestee’s privacy to the extent necessary to preserve the evidence which they had probable cause to believe was located inside the taxicab.

A review of the nine remaining assignments of error reveals no reversible error. Two were not briefed or argued and are considered to have been abandoned. The assignments that were briefed presented insubstantial questions concerning the identity of a confidential informant; the refusal of the court to permit the defendant to raise the issue of constructive possession of drugs at a preliminary hearing; the propriety of allowing the assistant district attorney to testify as a fact witness; the intro-duetion of a mechanical reproduction of the rights of arrestee form; the introduction of testimony regarding the use of heroin by the defendant; the introduction of a syringe which did not contain any heroin; and the imposition of a life sentence.

Accordingly, defendant’s conviction and sentence are affirmed.


author: CALOGERO, Justice. MARCUS, Justice

text:
    Charles DiGEROLAMO et al., v. LIBERTY MUTUAL INSURANCE COMPANY et al.
    No. 62017.
    Supreme Court of Louisiana.
    Nov. 13, 1978.

      Louis A. DiRosa and Brad G. Theard, New Orleans, for plaintiffs-applicants.
    George J. Richaud, Borrello & Huber, Me-tairie, for defendants-respondents.
   CALOGERO, Justice.

We granted writs primarily to review the Court of Appeal’s determination that the holder of a family automobile policy purporting to cover a vehicle actually owned by the holder’s son lacked an insurable interest in the vehicle, thus rendering the uninsured motorists claims asserted against the insurer unenforceable. 357 So.2d 1165 (La.1978).

On August 15, 1967, a week before his twenty-first birthday, Nicholas DiGerolamo purchased a new car from a New Orleans dealership. The dealership accepted a $1,000 deposit and issued a receipt in Nicholas’ name. Two days later, an application for certificate of title and passenger car registration was filed, bearing Nicholas’ signature. Shortly after the date of the car’s purchase, Charles DiGerolamo, Nicholas’ father, applied for insurance on this and another car. The application indicated that “applicant” (Charles DiGerolamo) was the owner of both vehicles. By the time the policy of insurance for which Charles DiGerolamo applied was issued, on September 7, 1967, Nicholas had attained majority, having celebrated his twenty-first birthday on August 22, 1967.

The accident out of which the plaintiffs’ claims arose occurred on October 8, 1967, when a stolen car being driven by a juvenile rear-ended the car being driven by Nicholas DiGerolamo, in which Nicholas’ brother, Joseph DiGerolamo, and Cynthia Lamarque were passengers. The petition sought to recover damages for Nicholas and Joseph DiGerolamo, and Cynthia Lamarque.

Liberty Mutual resisted the claims asserted in the suit filed against it, asserting the absence of an insurable interest in the involved vehicle on the part of insured, Charles DiGerolamo and claiming that in applying for insurance Charles DiGerolamo made misrepresentations material to the risk upon which Liberty Mutual relied. The trial court rendered judgment in favor of the plaintiffs and against Liberty Mutual on March 1, 1973, but granted a new trial on Liberty Mutual’s motion and thereafter rendered judgment in the insurer’s favor, dismissing the plaintiffs’ claims. The Court of Appeal affirmed the trial court judgment, deciding adversely to the plaintiffs the issue of whether Charles DiGerolamo had the statutory insurable interest required by R.S. 22:614 in the automobile owned by his major son.

We conclude that R.S. 22:614 (dealing with property insurance) is inapplicable in this case which involves automobile liability insurance and reverse the judgments of the lower courts for the reasons stated hereinbelow.

Considering Liberty Mutual’s contentions in reverse order we note the claim that Charles DiGerolamo made willfully false statements material to the risk and upon which the insurer relied. Thus, the insurer argues it may avoid payment under the policy.

R.S. 22:619 sets forth the requirements for avoidance of an insurance contract and. provides in subsection “A”, the portion relevant to insurance other than life and health and accident insurance (automobile liability insurance is comprehended thereby), that “. . .no oral or. written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or avoid the contract or prevent it attaching, unless the misrepresentation or warranty is made with the intent to deceive.”

According to the terms of subsection “B” of R.S. 22:619, material effect upon either the acceptance of the risk or the hazard assumed by the insurer stemming from a misrepresentation bars recovery only in the case of life or health and accident insurance. Thus, under the statute, only a finding of intent to deceive will defeat coverage in this instance.

In a space on the application for setting forth the registered owner(s) and the relationship to applicant of the two cars sought to be insured, an entry of the abbreviation, “App”, does indeed indicate that Charles DiGerolamo owned both vehicles for which insurance was sought. However, the application pertinently gives a negative answer to the question, “Is there any male operator under 25 who is neither owner nor principal operator?” and prominently indicates that a 20 year old son residing with the applicant-father, Nicholas, is to be a principal operator. In the absence of evidence to the contrary, we decide that the disclosure of Nicholas as a principal driver of the pertinent automobile for which insurance was sought belies the claim that the representation of ownership was made with the intent to deceive.

The second contention advanced by Liberty Mutual, upon which it heavily relies, is that Charles DiGerolamo lacked an insurable interest in Nicholas’ vehicle. At the outset we deem it necessary to discuss the concept of insurable interest. The Court of Appeal found applicable both R.S. 22:614 and the decision in Rube v. Pacific Insurance Company of New York, 131 So.2d 240 (La.App. 1st Cir. 1961).

In our view neither reliance is well placed. The insurable interest required by R.S. 22:614 relates only to property insurance, the type of insurance which was at issue in Rube, supra. R.S. 22:614 therefore has no relevance in the case at bar.

To determine whether an insurable interest is a requirement in Louisiana we first consider the Louisiana Revised Statutes. The only two statutory provisions requiring an insurable interest are R.S. 22:613 and 22:614. There is no statutory requirement of insurable interest with regard to liability insurance. The two statutes expressly requiring insurable interest concern insurance contracts upon one’s “life or body” or upon the “life or body” of another, (R.S. 22:613) and insurance contracts on “property or of an interest therein or arising therefrom.” (R.S. 22:614). Subsection “B” of R.S. 22:614 defines insurable interest as “. . . any lawful and substantial economic interest in the safety or preservation of the subject of the insurance . .” We thus conclude that the only two statutes concerned with insurable interest are not applicable to liability insurance.

When we look to the Louisiana jurisprudence we find only one case, Churchman v. Ingram, 56 So.2d 297 (La.App. 2nd Cir. 1952), where in obiter dictum the court, apparently assuming the need for an insurable interest, found such in consequence of the insured’s vicarious liability for the torts of his minor son.

There is therefore no controlling Louisiana jurisprudence and no applicable statute. While we are disposed to find that in Louisiana there is no requirement of insurable interest with respect to liability insurance, we find it unnecessary here to do so. Our restraint in this respect is prompted by our ability to resolve this case without reaching the issue, and by the prevalence of a contrary rule regarding insurable interest and liability insurance in the national jurisprudence. See Annot., 1 A.L.R.3d 1193 (1965). A multitude of cases are cited in this annotation in which appellate courts throughout the nation have either expressly found applicable the requirement of an insurable interest to liability insurance or assumed as much. The few cases which the annotation cites for the contrary proposition do not decree inapplicability of the doctrine in unqualified terms.

While the cases seem to premise the requirement of insurable interest on the need to prevent wagering contracts, such a danger is simply not present in situations involving liability insurance. (In the liability insurance situation, there is no “thing” or object upon which can be focused an insured’s economic interest in the item’s safety and preservation.) The more plausible basis for an insurable interest requirement in cases of liability insurance is that there exists a reason for an insurable interest in the form of possible legal liability with respect to the use and maintenance of the property. As the annotation notes (and this of course is not necessarily irrefutable), possible liability may well be considered an insurable interest in the property itself. 1 A.L.R.3d at 1195.

Nonetheless, as we have mentioned hereinabove we find it unnecessary to resolve at this time this question of whether in Louisiana a policyholder’s insurable interest is required as it pertains to liability insurance on an automobile. Even if there were to be a requirement of an insurable interest for automobile liability insurance, in terms of possible (prospective) liability there is surely such an interest present in this case. Undeniably, when Charles DiGerolamo applied for the coverage which he subsequently obtained, he was exposed to liability which may have stemmed from Nicholas’ operation and use of the purchased automobile by virtue of Nicholas’ minority. This potential legal liability certainly would have invested the father with an insurable interest in the subject of the insurance. A second independently plausible basis for finding a continuing insurable interest, were there a requirement for such, exists by virtue of the fact that only by obtaining insurance on his son’s car could Charles DiGerolamo secure coverage in the event his operation or use of the son’s car led to imposition of liability for injury or damages. That such a situation could arise is far from improbable since the father and son lived together and it could reasonably be anticipated that the father would occasionally drive his son’s car. In this case the father’s insurance on his own vehicle would not cover liability arising out of his operation of the .automobile of a son living at home. This same automobile policy, which presumably would have been issued to Charles DiGerolamo to cover the truly owned family automobile (the second car on this policy) reflects that coverage is for “bodily injury” and “property damage” “. . . arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile . . .,” but provides that an automobile owned by a resident of the same household is not a “non-owned automobile” for which coverage is extended. Therefore, to insure himself against potential liability arising from his operation of the car owned by his son, a resident of the same household, Charles DiGerolamo had reason to secure insurance on his son’s car.

Our conclusion that the plaintiffs are entitled to recovery having revived the quantum issue connected with this litigation, we conform to the preferred policy in this type of case of declining to fix quantum and instead remand the case to the Court of Appeal for that purpose. See Smith v. Hartford Accident and Indemnity Company, 254 La. 341, 223 So.2d 826 (1969). See also Dupas v. City of New Orleans, 354 So.2d 1311 (La.1978) and Smolinski v. Taulli, 276 So.2d 286 (La.1973).

Decree

For the foregoing reasons, the judgments of the district court and the Court of Appeal dismissing plaintiffs’ claims are reversed and the case is remanded to the Court of Appeal in order that it may fix the damages to which the plaintiffs are entitled and render judgment for such sums against the defendant.

REVERSED AND REMANDED.

MARCUS, J., concurs and assigns written reasons.

MARCUS, Justice

(concurring).

While I agree that Charles DiGerolamo had an insurable interest for automobile liability insurance in this case, I am concerned over the fact that we are not dealing with a liability policy; rather, we are concerned here with coverage under the uninsured motorist provision of the policy. Either because uninsured motorist coverage might be considered an adjunct to liability coverage or because Charles DiGerolamo might have an insurable interest with regard to uninsured motorist coverage based upon his obligations as a father to his child, I concur in the result.

      . Prior to the 1972 amendment of Civil Code art. 37 by Act 98 the age of majority was twenty-one, not eighteen, as it is at present.

      . R.S. 22:614 provides:
      A. No contract of insurance on property or of any interest therein or arising therefrom shall be enforceable except for the benefit of persons having an insurable interest in the things insured.
      B. “Insurable interest” as used in this Section means any lawful and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage.

      .The policy at issue here is exclusively a liability policy. It does not include comprehensive and collision coverages.

      . The provisions of R.S. 22:614 are quoted in footnote two.
      The provisions of R.S. 22:613 provides, in pertinent part:
      A. Any individual of competent legal capacity may procure or effect an insurance contract upon his own life or body for the benefit of any person. But no person shall procure or cause to be procured any insurance contract upon the life or body of another individual unless the benefits under such contract are payable to the individual insured or his personal representatives, or to a person having, at the time when such contract was made, an insurable interest in the individual insured.
      * * * * * *
      C. “Insurable interest” as used in this Section and in R.S. 22:616 includes only interest as follows:
      (1) In the case of individuals related closely by blood or by law, a substantial interest engendered by love and affection; and
      (2) In the case of other persons, a lawful and substantial economic interest in having the life, health or bodily safety of the individual insured continue, as distinguished from an interest which would arise only by, or would be enhanced in value by, the death, disablement or injury of the individual insured.
      (3) An individual heretofore or hereafter party to a contract or option for the purchase or sale of an interest in a business partnership or firm, or of shares of stock of a closed corporation or of an interest in such shares, has an insurable interest in the life of each individual party to such contract and for the purposes of such contract only, in addition to any insurable interest which may otherwise exist as to the life of such individual.

      . The American Law Reports discussion includes four cases wherein the necessity for insurable interest in cases of liability insurance was expressly found. Farmers Butter and Dairy Cooperative v. Farm Bureau Mutual Insurance Company, 196 N.W.2d 533 (Iowa, 1972); Osborne v. Security Insurance Co., 155 Cal.App.2d 201, 318 P.2d 94 (1957); Ocean Accident and Guarantee Corp. v. Bear, 220 Ala. 491, 125 So.2d 676 (1929); and Standard Life and Accident Insurance Company v. Bambrick Bros. Construction Company, 163 Mo.App. 504, 143 S.W. 845 (1912). The annotation notes that an assumption of the applicability of the doctrine to liability cases is made in federal cases applying state law decided in Arkansas, Kentucky, Minnesota, Texas and Virginia and state cases decided in Kentucky, Louisiana, (Churchman v. Ingram, supra, discussed in this opinion’s text) Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Tennessee and Washington. 1 A.L.R.3d at 1195-96.

      . See cases cited in 1 A.L.R.3d 1193 at 1196-97 (Section 2[c]); see also the supplement thereto at 162-63.

      . Civil Code article 2318 provides:
      Art. 2318. The father, or after his decease, the mother, are responsible for the damage occasioned by their minor or unemancipated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons. The same responsibility attaches to the tutors of minors.


author: MARCUS, Justice.

text:
    Leon S. HAAS, Jr. et al. v. BATON ROUGE GENERAL HOSPITAL.
    No. 62084.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    James T. Guglielmo, Lewis & Lewis, Opelousas, for plaintiff-applicant.
    Ben L. Guelfo, Watson, Blanche, Wilson & Posner, for defendant-respondent.
   MARCUS, Justice.

During the course of her stay at Baton Rouge General Hospital, Mrs. Birdie Artigue Pedigo was injured on November 14, 1975, when she fell while attempting to leave her bed. She died on April 1, 1976 from an unrelated cause, leaving neither ascendants nor descendants. Her husband, John Lloyd Pedigo, survived her but died shortly thereafter on August 19, 1976.

This suit to recover damages for personal injuries to Mrs. Pedigo, allegedly caused by the negligence of defendant hospital, was filed on November 9, 1976 by Leon S. Haas, Jr., in his capacity as administrator of the estate of Mrs. Pedigo and as the testamentary executor of the estate of Mr. Pedigo. Defendant filed a dilatory exception of lack of procedural capacity and a peremptory exception of no right of action. After a hearing, the trial judge sustained the exception of no right of action and dismissed plaintiff’s suit at his cost. He further decreed that the exception of procedural capacity was moot. Plaintiff appealed. Court of appeal affirmed the judgment of the trial court. On plaintiff’s application, we granted certiorari to review the correctness of this judgment.

The sole issue presented for our consideration is whether Leon S. Haas, Jr. is a proper party plaintiff to bring this action for the personal injuries sustained by Mrs. Pedigo as a result of the alleged offense caused by defendant hospital.

La.Civil Code art. 2315 provides:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.
The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not:
As used in this article, the words ‘child’, ‘brother’, ‘sister’, ‘father’, and ‘mother’ include a child, brother, sister, father, and mother, by adoption, respectively.

According to the clear language of the first sentence of the third paragraph of the above article, the right to recover damages (other than property damages) caused by an offense, upon the death of the injured person, shall survive for a period of one year from the death of the deceased in favor of certain designated beneficiaries. The right of action does not pass through the victim’s succession to be transmitted to his heirs as an inheritance. Instead, it devolves exclusively upon specially designated classes of beneficiaries or survivors set forth in said article. Therefore, in the instant case, upon the death of Mrs. Pedigo, tort victim, the right to recover damages for the personal injuries sustained by her as a result of the alleged offense survived solely in favor of her spouse, Mr. Pedigo, in view of the fact that Mrs. Pedigo died without children. Hence, the succession representative of the tort victim’s estate has no right to bring the action to recover damages for the personal injuries sustained by the tort victim. The court of appeal correctly sustained the exception of no right of action insofar as it was directed at plaintiff in his capacity as administrator of Mrs. Pedigo’s estate.

However, where the designated beneficiary or survivor dies, whether suit has been instituted or not, the right to recover damages for the personal injuries sustained by the tort victim is inherited by the heirs of the designated beneficiary who survived the tort victim. The controlling provision in this regard is set forth in the last sentence of the third paragraph of Article 2315:

A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.

In the instant case, Mr. Pedigo, designated beneficiary, survived his wife, Mrs. Pedi-go (tort victim). Suit was not instituted prior to his death; however, it was instituted within one year from the death of his deceased wife. According to the clear language of the above sentence, the right to recover damages under the provisions of the third paragraph of article 2315, being a property right, on the death of Mr. Pedigo, was inherited by his heirs. Hence, the right of action is included in Mr. Pedigo’s estate.

In sum, although the tort victim’s right of action does not form part of her own succession, it is included in the beneficiary’s estate, and thus is transmitted upon his death to his heirs according to the laws of succession.

Under La.Code Civ.P. art. 685, the succession representative is the proper party plaintiff to sue to enforce a right of the deceased or his succession while the latter is under administration. See also La.Civil Code of Civil Procedure arts. 3196 and 3211. Hence, Leon S. Haas, Jr., as testamentary executor of Mr. Pedigo’s succession, is the proper party plaintiff to bring this action for the personal injuries sustained by Mrs. Pedigo as a result of the alleged offense caused by defendant hospital. The court of appeal erred in holding otherwise.

DECREE

For the reasons assigned, judgment of the court of appeal affirming the dismissal of plaintiff’s suit is reversed, and the case is remanded to the district court for further proceedings consistent with the views herein expressed.

      . 357 So.2d 605 (La.App. 1st Cir. 1978).

      . 358 So.2d 643 (La.1978).


author: PER CURIAM.

text:
    STATE of Louisiana v. John BROWN.
    No. 62089.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Barry Viosca, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant John Brown was charged by bill of information with two counts of attempted first degree murder in violation of LSA-R-.S. 14:27 and 14:30. After a trial by jury he was found guilty of both counts and later sentenced to serve twenty-five years in the custody of the Department of Corrections, the sentences to run consecutively. Defendant appeals his conviction asserting twelve assignments of error and relying in brief upon ten of them. None of the assignments are meritorious.

Accordingly, defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.