author: DENNIS, Justice.

text:
    STATE of Louisiana v. Stephen W. JOHNSON. STATE of Louisiana v. Kenneth V. HENSLEY.
    Nos. 58495 and 58496.
    Supreme Court of Louisiana.
    Feb. 28, 1977.

      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-appellant.
    Jacques F. Bezou, Michael Silvers, New Orleans, for defendant-appellee.
   DENNIS, Justice.

By separate and unrelated bills of information, the defendants in these consolidated appeals were charged with having violated La.R.S. 14:106, the Louisiana obscenity statute. Both defendants filed motions to quash the informations alleging the unconstitutionality of the obscenity statute, and the district judge sustained both motions. The State, in each case, has appealed.

After careful review of the judgments of the district court and of the arguments raised by appellees and upon full consideration of the limitations placed on government regulation of allegedly obscene materials by the United States Constitution, we are convinced that the judge below erred in ruling that La.R.S. 14:106 is unconstitutional in its entirety. For the reasons hereinafter set forth, we reverse the rulings of the lower court.

Stephen W. Johnson, docket number 58.495, was charged with having willfully and unlawfully participated or engaged in the exhibition and display of hard core sexual conduct in two untitled motion picture films; Kenneth V. Hensley, docket number 58.496, was charged with five counts of obscenity for having willfully possessed, exhibited, and displayed obscene, lewd, lascivious, filthy and sexually indecent hard core sexual conduct in five different magazines. In both cases the district judge found that La.R.S. 14:106(C), a section of the obscenity statute which creates a limited immunity from conviction for theatre and bookstore employees acting within the course and scope of a bona fide contract of employment, was unconstitutionally vague.

La.R.S. 14:106(C) as approved and enrolled by the legislature provides:

“No theatre employee or bookstore employee acting within the course and scope of a bona fide contract of employment wherein such employee is employed by any person, firm or corporation exhibiting motion pictures or selling books, periodicals or other published materials pursuant to a license or permit to exhibit or sell the same issued by the State of Louisiana or any municipality, parish or consolidated city-parish government therein, shall be guilty of a violation of this section as a result of his possession, exhibition or sale within the course and scope of such employment provided such employee has no managerial duties and has no financial interest in the possession, exhibition or sale of any materials other than wages from his said employment, unless there is no person having managerial duties or a financial interest in the possession, exhibition or sale of obscure materials subject to immediate arrest and prosecution." (Emphasis supplied.)

Appellees argued, and the district court agreed, that the presence of the word “obscure” in this paragraph of the statute rendered the entire obscenity statute unconstitutionally vague, because a person of average intelligence, untrained in the law, could not, on reading the statute, determine the applicability of paragraph C, and thus could not ascertain whether contemplated conduct might subject him to criminal prosecution.

Theatre and Bookstore Employees

We reserve judgment on whether the district judge was correct in this ruling, because defendants on appeal have called our attention to a more serious flaw in paragraph C of the statute. The last clause of paragraph C, in effect, subjects to criminal responsibility non-managerial, non-proprietary theatre and bookstore employees if there is no person having managerial duties or a financial interest in the business “subject to immediate arrest and prosecution.” Thus the meaning of this clause is of crucial importance to a small class of potential defendants in obscenity prosecutions.

Appellees argue that this clause is ambiguous and does not give fair notice of the circumstances under which a bookstore or theatre employee, having no managerial duties or financial interest in the business, may be penalized for exhibiting or selling obscene materials. They point out that to immunize the clerical employee the statute does not specify where the managerial or financially interested superior must be in order to be “subject to immediate arrest and prosecution”: on the premises, within the parish, within the judicial district, or merely within the State? Additionally, we find the paragraph unclear because it does not say when this person must be “subject to immediate arrest” in order to insulate the clerical employee from criminal liability. It could refer to the time at which the police first detect a violation of the statute at the premises, to the entire period during which the police have knowledge of violations there, to the time of the pre-arrest hearing if one is required by paragraph F(l) of the statute, to any time the police propose to make an arrest as a result of a violation on the premises, or to any time prior to the actual conviction of the clerical employee for obscenity.

We are asked to invoke the precepts of our recent decision in Connick v. Lucky Pierre’s, 331 So.2d 431 (La.1976) and find that the statute “fails to fulfill the due process requirement that statutes be sufficiently definite to give notice as to what conduct is necessary to avoid legal sanctions.” However, La.R.S. 13:4711 et seq., the statute we declared unconstitutional in Lucky Pierre’s, suffered from a greater degree of vagueness than La.R.S. 14:106(C). La.R.S. 13:4711 et seq. attempted to require owners, lessees, sublessees, employees and those persons acting in concert with them to institute and proceed with “legal action necessary to enjoin” any acts of prostitution, assignation or obscenity which they knew were taking place in a building over which they had control or in which they were employed. As pointed out in our opinion in that case, the possible interpretations of the phrase, “legal action necessary to enjoin,” as well as the persons against whom the actions should be taken, were multitudinous, and the vagueness struck at the very heart of the legislation so as to render it impossible to determine the acts or omissions which the legislature sought to prohibit. See, Connick v. Lucky Pierre’s, supra.

The issue here is distinguishable because the obscenity statute is sufficiently definite to give notice as to what conduct is necessary to avoid legal sanctions. See, State v. Amato, 343 So.2d 698 (La.1977), decided this day. The uncertainty with which we are now dealing is crucial only to determining which non-managerial, non-proprietary bookstore and theatre employees are to be subjected to criminal sanctions because of the absence of someone having a financial or executive interest in the business. Because the ambiguity affects a subsidiary portion of the statute, it would perhaps be permissible to save the provision by construing it as strictly as possible in favor of defendants.

However, under any saving construction of the words “subject to immediate arrest and prosecution,” some clerical bookstore and theatre employees would be subjected to criminal proceedings whereas others would not, depending on whether their superiors are subject to immediate arrest and prosecution. Thus the law does not afford all such employees equal treatment, and raises a question as to whether the distinction between the two classes of clerical employees has been drawn upon a reasonable basis. We do not think that it has. To make a person’s exposure to a possible fine of $2,000 and possible imprisonment at hard labor for five years completely dependent upon whether another person is subject to immediate arrest and prosecution seems to us entirely unfair and unreasonable. Accordingly, we conclude that the last clause of La.R.S. 14:106(C) is unconstitutional because it denies equal protection of the law to one class of clerical bookstore and theatre employees. U.S. Const, amend. XIV, § 1; La.Const. art. 1, § 3 (1974).

Nevertheless, we do not agree with the defendants-appellees that a judicial determination of partial invalidity of the statute in this respect so disembowels the legislation that it must fall as a whole. Instead, we conclude that the repugnant provision is separable from the remainder of the statute, which it is therefore our duty to uphold.

The obscenity statute was enacted by Act No. 274 of the 1974 regular session of the legislature, and included the following sev-erability clause:

“If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items or applications of this Act which can be given effect without the invalid provisions, items or applications, and to this end the provisions of this Act are hereby declared severable.”

Since the balance of the statute can be given effect without the invalid provision, the requirements of the severability clause have been met. Notwithstanding this, there are well recognized precepts of statutory construction which also must be considered.

“To be capable of separate enforcement, the valid portion of an enactment must -be independent of the invalid portion and must form a complete act within itself. The law enforced after separation must be reasonable in light of the act as originally drafted. The test is whether or not the legislature would have passed the statute had it been presented with the invalid features removed.” 2 Sutherland, Statutes and Statutory Construction, § 44.04 at 341-42 (Sands 4th ed. 1973) (footnotes omitted).

“A further inquiry which courts make in determining legislative intent in regard to the separability of statutes is into the dominant or main purpose of the enactment. Where the purpose of the statute is defeated by the invalidity of part of the act, the entire act is void. Conversely, when the general object of the act can be achieved without the invalid part, the act will be upheld.” Id. § 44.07 at 347 (footnotes omitted).

It is well recognized among the legal community of the State that Act 274 of 1974 was designed to fill the void created by our decisions in State v. Shreveport News Agency, Inc., 287 So.2d 464 (La.1974) and State v. McNutt, 287 So.2d 478 (La.1974), which invalidated the state statutory regulation of obscenity, as was militated by the decision of the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). See, Highlights of the 1974 Regular Session— Obscenity Regulation, 35 La.L.Rev. 601 (1975). The title of the 1974 act declares that its purpose was “to define the crime of obscenity, to provide penalties therefor, to provide for the applicability and construction of the Act, and to provide otherwise with respect thereto.” The language of the act itself indicates that the dominant or main purpose of the legislation was to adopt the Miller definition of obscenity and to state specifically the kinds of representations or descriptions of sexual conduct which could be found to constitute obscenity as is also required by the Miller decision. See, State v. Amato, supra.

Clearly the main purpose of the obscenity statute will not be defeated by the invalidity of the last clause of paragraph C. The only effect will be to grant immunity from conviction to all theatre and bookstore employees having no managerial duties and no financial interest, other than wages, in the dissemination of obscene materials, rather than exposing some of these employees to criminal sanctions simply because no person having managerial duties or a financial interest in the materials is subject to immediate arrest and prosecution. Without the repugnant clause the statute forms a complete act within itself, and is reasonable in light of the act as originally drafted. Because the main goal of the legislature was to provide the state a valid and enforceable obscenity statute, and since it has previously granted unqualified immunity to non-managerial theatre employees, see La.Acts numbers 605 and 743 of 1972, we conclude the legislature would have passed the statute had it been presented with the last clause of paragraph C removed. Accordingly, we hold that although the provision is unconstitutional, it is severable from the remainder of paragraph C and the other paragraphs of La.R.S. 14:106.

Violent Materials

Appellees next contend that La.R.S. 14:106 is unconstitutionally overbroad because it purports to regulate purely violent materials. La.R.S. 14:106(A)(6) provides:

“The crime of obscenity is the intentional:
U ‡ * *
“Advertisement, exhibition or display of violent material. ‘Violent material’ is any tangible work or thing which the trier of facts determines depicts actual or simulated patently offensive acts of violence, including but not limited to, acts depicting sadistic conduct, whippings, beatings, torture and mutilation of the human body.”

In Miller v. California, supra, the United States Supreme Court declared

“ * * * State statutes designed to regulate obscene materials must be carefully limited. * * * As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” 413 U.S. at 23-24, 93 S.Ct. at 2614-15, 37 L.Ed.2d at 430-31 (emphasis supplied).

Unquestionably, La.R.S. 14:106(A)(6), which facially purports to proscribe patently offensive violent materials, exceeds the limits placed upon the regulation of obscene materials by the United States Supreme Court in Miller.

Appellees, however, were not charged with dissemination of violent materials. Each was charged with exhibiting and displaying hard core sexual materials — conduct condemned by La.R.S. 14:106(A)(2) and (3). Furthermore, for the reasons stated above pertaining to the last clause of La. R.S. 14:106(C), the severability clause of the act would also allow paragraph (A)(6) to be eliminated from the statute. Assuming the invalidity of La.R.S. 14:106(A)(6), we see no reason to declare the entire statute invalid.

Pre-arrest Hearing

Johnson and Hensley also contend that the obscenity statute is totally invalid because La.R.S. 14:106(F)(1) provides for a pre-arrest adversary hearing and judicial determination of obscenity, except in cases involving:

“ * * * motion pictures, printed materials and photographic materials showing actual ultimate sexual acts or simulated or animated ultimate sexual acts when there is an explicit, close-up depiction of human genital organs so as to give the appearance of the consummation of ultimate sexual acts. * * * ”

However, a pre-arrest hearing, as opposed to a pre-seizure hearing, is not constitutionally compelled in any instance. Milky Way Productions, Inc. v. Leary, 305 F.Supp. 288 (S.D.N.Y.1969), aff’d per curiam sub nom., New York Feed Co. v. Leary, 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78 (1970); see, Highlights of the 1974 Regular Session— Obscenity Regulation, 35 La.L.Rev. 601, 605 (1975). In the instant case the appellees do not complain in motion or in argument about the nature of their arrests. We are not prepared to state categorically that no constitutional problems could be presented by the statutory exception for arrest without a hearing when the offense charged is depiction of ultimate sex acts. Nevertheless, within the context of the present case we see no constitutional or statutory frailty in the provision.

For the reasons assigned, the judgments of the district court sustaining the appel-lees’ motions to quash the informations in the cases of State v. Johnson, docket number 58,495, and State v. Hensley, docket number 58,496, are reversed and set aside, and the cases are remanded for further proceedings.

MARCUS, J., concurs.

SANDERS, C. J., concurs in the decree.

      . We note that the bill of information included in the record for our review purports to charge the defendant-appellee with possession of obscene materials, as well as with their dissemination. La.R.S. 14:106 does not make mere possession of obscene materials unlawful. The information otherwise charges the defendant-appellee with exhibiting and displaying hard core sexual conduct, activities clearly within the prohibition of La.R.S. 14:106(A)(2). The unnecessary allegation may be disregarded as surplusage. La.C.Cr.P. art. 486.

      . La.R.S. 14:106(A)(2) and (3) provides:
      “The crime of obscenity is the intentional:

      “(2) Participation or engagement in, or management, production, presentation, performance, promotion, exhibition, advertisement, sponsorship or display of, hard core sexual conduct when the trier of fact determines that the average person applying contemporary community standards would find that the conduct, taken as a whole, appeals to the prurient interest; and the hard core sexual conduct, as specifically defined herein, is presented in a patently offensive way; and the conduct taken as a whole lacks serious literary, artistic, political or scientific value.
      “Hard core sexual conduct is the public portrayal, for its own sake, and for ensuing commercial gain of:
      “(a) Ultimate sexual acts, normal or perverted, actual, simulated or animated, whether between human beings, animals or an animal and a human being; or
      “(b) Masturbation, excretory functions or lewd exhibition, actual, simulated or animated, of the genitals, pubic hair, anus, vulva or female breast nipples; or
      “(c) Sadomasochistic abuse, meaning actual, simulated or animated, flagellation or torture by or upon a person who is nude or clad in undergarments or in a costume which reveals the pubic hair, anus, vulva, genitals or female breast nipples, or the condition of being fettered, bound or otherwise physically restrained, on the part of one so clothed; or
      “(d) Actual, simulated or animated, touching, caressing or fondling of, or other similar physical contact with, a pubic area, anus, female breast nipple, covered or exposed, whether alone or between humans, animals or a human and an animal, of the same or opposite sex, in an act of apparent sexual stimulation or gratification; or
      “(e) Actual, simulated or animated stimulation of a human genital organ by any device whether or not the device is designed, manufactured and marketed for such purpose.
      “(3) Sale, allocation, consignment, distribution, dissemination, advertisement, exhibition or display of obscene material, or the preparation, manufacture, publication or printing of obscene material for sale, allocation, consignment, distribution, advertisement, exhibition or display of obscene material, or the preparation, manufacture, publication or printing of obscene material for sale, allocation, consignment, distribution, advertisement, exhibition or display.
      “Obscene material is any tangible work or thing which the trier of fact determines (a) that the average person applying contemporary community standards would find, taken as a whole, appeals to the prurient interest; and, (b) depicts or describes in a patently offensive way, hard core sexual conduct specifically defined in Paragraph (2) above; and (c) the work or thing taken as a whole lacks serious literary, artistic, political or scientific value.”


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. August M. WINDHORST.
    No. 58516.
    Supreme Court of Louisiana.
    Feb. 28, 1977.
    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-appellant.
    Milton P. Masinter, New Orleans, for defendant-appellee.
   DENNIS, Justice.

The defendant, August Windhorst, was charged by bill of information with having violated the Louisiana obscenity statute, La.R.S. 14:106. Defendant timely filed a motion to quash the information, alleging the statute’s unconstitutionality. Defendant’s motion was maintained by the district judge for reasons orally assigned. The State appealed.

On motion of the State, the record presented for our review was supplemented to include the district judge’s oral reasons for his judgment. It appears that the district judge, who also declared La.R.S. 14:106 unconstitutional in an unrelated case, State v. Amato, 343 So.2d 698 (La.1977) (Docket number 58,619), maintained defendant’s motion here for substantially the same reasons he assigned therein.

Accordingly, for the reasons this day assigned in State v. Amato, 343 So.2d 698 (La.1977) (Docket number 58,619), the judgment of the district court maintaining defendant’s motion to quash the information is reversed and set aside, and the case is remanded for further proceedings.

DIXON, J., dissents for reasons stated in # 58,619, La., 343 So.2d 698.


author: TATE, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Willie Henry ELZIE.
    No. 58507.
    Supreme Court of Louisiana.
    March 7, 1977.

      James D. Sparks, Jr., Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Brian E. Crawford, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Elzie was convicted of possession of cocaine with intent to distribute, La.R.S. 40:967 A(2), and sentenced to five years in the state penitentiary.

Upon his appeal the most serious issue is raised by Assignment of Error No. 7. By this assignment, the defendant alleges that the trial court erroneously denied his motion for a new trial, since the state introduced no evidence at all to prove that the cocaine found in his trunk was possessed “with intent to distribute.”

(1)

The defendant was charged with and convicted of a violation of La.R.S. 40:967 A(2). This statute makes it unlawful “for any person knowingly or intentionally * * * (2) to . possess with intent to distribute a controlled dangerous substance classified in Schedule II.” (The latter schedule includes cocaine, see La.R.S. 40:964, Schedule II A(4).)

Specific intent is required to commit the crime to possess cocaine “with intent to distribute.” The italicized provision qualifies the intent statutorily required to commit the crime defined.

Thus, in Louisiana, we require proof of specific intent where the statutory definition of a crime includes the intent to produce or accomplish some prescribed consequence (the frequent language being “with intent to . ”). See e. g. State v. Lewis, 288 So.2d 348 (La.1974) (burglary); State v. Fontenot, 256 La. 12, 235 So.2d 75 (1970) (obscenity); and State v. Daniels, 236 La. 998, 109 So.2d 896 (1959) (public intimidation), (overruled insofar as a procedural point, State v. Gatlin, 241 La. 321,129 So.2d 4, 7-8 (1961), but not as to its substantive holding). See also LaFave and Scott, Criminal Law, Section 28 (1972).

Narcotics offenses involving possession with intent to distribute therefore require proof of specific intent. See State v. Medlock, 297 So.2d 190 (La.1974). Cf. State v. Clark, 338 So.2d 690, 692 (La.1976) and State v. Banks, 307 So.2d 594, 597 (La.1975), distinguishing Medlock in the case of simple distribution crimes which do not specify “intent to distribute.”

Specific criminal intent is defined by La. R.S. 14:10(1): “Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.”

Specific intent is statutorily distinguished from general criminal intent. The latter exists “when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” La.R.S. 14:10(2).

In summary, specific intent is present when from the circumstances the offender must have subjectively desired the prohibited result. On the other hand, general intent exists when from the circumstances the prohibited result may reasonably be expected to follow from the offender’s voluntary act, irrespective of any subjective desire on his part to have accomplished such result.

Applied to the present case, to convict the accused the state was required to prove beyond a reasonable doubt not only that he possessed the cocaine found on his premises, but also that he did so with the specific subjective intention of possessing it in order to distribute it.

(2)

By his motion for a new trial, the defendant contends that there is a total lack of evidence to prove any specific intent on his part to possess the cocaine “with intent to distribute.” For appellate purposes, this does not raise a reviewable question of law unless there is a total lack of evidence to prove the crime or an essential element of it. State v. Perkins, 337 So.2d 1145 (La.1976); State v. Williams, 310 So.2d 513 (La.1975).

In the instant case, the state simply proved that the defendant possessed less than 7/ioth of an ounce of a substance containing one percent of cocaine. Arguing that the evidence shows this amount was sufficient for twenty individual cocaine uses (at the customary one-quarter teaspoon each) of the substance, the state contends that the trial jury was entitled to infer from this circumstantial evidence that the accused possessed the cocaine with intent to distribute it.

It is true that the requisite specific intent may be based upon a reasonable jury inference from circumstantial evidence, such as the quantity of the illegal drug and the surrounding circumstances of its possession. State v. Sibley, 310 So.2d 100 (La. 1975).

La.R.S. 15:438 provides: “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.’’ (Italics ours.) The issue of whether every reasonable hypothesis of innocence has been excluded presents a question of law. State v. Williams, 310 So.2d 513 (La.1975); State v. Pryor, 306 So.2d 675 (La.1974); State v. Heymann, 256 La. 18, 235 So.2d 78 (1970); State v. Linkletter and Soldani, 239 La. 1000, 120 So.2d 835 (1960); State v. La Borde, 234 La. 28, 99 So.2d 11 (1958).

For purposes of appellate review, the issue before us then is whether there is some evidence from which the jury could reasonably conclude that beyond a reasonable doubt the accused in the present instance possessed the cocaine with intent to distribute it. Stated another way, did the evidence before the jury, reasonably accepted by it, exclude as a matter of law every other reasonable hypothesis, such as that the accused possessed the cocaine for personal consumption rather than for distribution to others?

See: State v. Andrews, 337 So.2d 1175 (La.1976); State v. Shores, 334 So.2d 193 (La.1976); State v. Willis, 325 So.2d 227 (La.1975); State v. House, 325 So.2d 222 (La.1975); State v. Williams, 310 So.2d 513 (La.1975).

(3)

The evidence produced by the state is as follows:

There was no testimony that the accused had ever distributed or even used drugs in the past. The sole evidence introduced was the cocaine seized in the search pursuant to a warrant, and a quarter teaspoon and a pair of scales found in a nightstand beside the accused’s bed. No packaging materials or other indicia of distribution practices were found.

The principal evidence found in the search was a small plastic pill bottle (2V2 inches high) containing 18.7 grams, or less than Vioth ounce, of a white powdery substance. Upon chemical analysis, this substance contained 1% cocaine, or about 7/ thousandths of an ounce of cocaine.

The chemist who analyzed it found the substance to contain by far the lowest percentage cocaine-content he had analyzed in the 35 occasions he had been called upon to perform this service in the past. He estimated the average cocaine-content previously found by him to be 10-15%, although he also admitted that he did not ordinarily deal with street quantities. (However, he did feel that the cocaine mixture he found was sufficient to give a reaction to a first-time user not habituated to cocaine.)

The plastic pill bottle was found in a locked foot locker in a hall closet. The locker also contained other non-contraband personal effects, such as a speaker system, as well as a plastic bag of marijuana.

The other evidence relied upon by the state was found in a nightstand next to the accused’s bed. In a little glass vial were a few particles of a white powdery substance, too small to weigh, which upon the analysis which consumed it showed the presence of cocaine, indicated by its chemical reaction to be of purer content than the other substance (although impossible to quantify because of its minuteness).

Additionally, in the nightstand was found a quarter teaspoon measuring spoon and a small pair of aluminum scales.

The detectives testified that the spoon could be used for measuring individual doses by a user, but that it could also be used by a person cutting the pure cocaine down by mixing it with another substance (quinine, lactose, milk sugar, etc.) to reduce the cocaine content for street level use. The scales are not shown to be associated with the distribution of cocaine.

From our description thus far, it is far more likely that the possession was for personal use of the extremely diluted substance weighing Vioth of an ounce, accompanied by personal use of items found by the bedside:

The defendant at the time of the search had stated that the substance was lactose. Absent evidence that the 1% residue of cocaine found in it was a customary mixture (the evidence is in fact, to the contrary) for street sales, the presence of this substance (containing only minute quantities of cocaine) is more consistent with possession for personal use in mixing or sniffing cocaine than with possession for distribution purposes.

Nevertheless, we were given some concern as to the correctness of this conclusion by the testimony of the narcotics officers that cocaine, diluted to street mixture, sold for $20 to $35 per quarter teaspoon, the customary measure of distribution and of use. Since the tube contained an estimated twenty quarter-teaspoons, the prosecutor suggested that the tub contained a cocaine mixture worth $400 to $700. From this circumstance, he argued, a trier of fact might reasonably conclude that a college student would not possess substance of that value for his own personal use (but only, by implication, for distribution to others).

Upon examination of the record, however, these detectives stated that such was the value of cocaine diluted to street use, but nowhere in the record is there any evidence that the Vioth ounce of substance found with only a minute 1% trace of cocaine in it was even near to the percentage of cocaine found in street sales of substances containing it. Thus, the substance found is not shown to be “street” cocaine.

The evidence of the value of “street” cocaine, therefore, is not relevant to altering our conclusion that the present possession is consistent with possession for personal use or for mixture of lactose with cocaine for personal use, rather than that the possession of the substance was any evidence of possession of cocaine with intent to distribute it.

Under the evidence before the trier of fact, we therefore conclude that there was no evidence by which it might reasonably infer that the cocaine was possessed with intent to distribute it. It was much adulterated in quality, far more consistent with a cocaine-tainted lactose mixture possessed for personal uses; likewise, the quantity of this much adulterated mixture was consistent with possession for this purpose rather than with possession for distribution.

As we similarly held with regard to possession of fifteen marijuana cigarettes in State v. Willis, 325 So.2d 227 (La.1975), the present quantity of actual cocaine is too small to support an inference that the substance was intended for distribution. In similarly reversing a jury conviction for possession with intent to distribute twenty-one marijuana cigarettes, we noted in State v. House, 325 So.2d 222, 225 that, aside from possession itself

“ * * * the State offered no evidence: (1) that the defendant ever distributed or attempted to distribute any marijuana [cocaine], (2) that the marijuana [cocaine] was in a form usually associated with marijuana [cocaine] possessed for distribution to others; (3) that the amount was such as to create a presumption of intent to distribute; (4) of expert or other testimony that such an amount as found on the defendant is inconsistent with personal use only; and (5) of any paraphernalia . . . evidencing an intent to distribute.”

Mere possession is not “some evidence” of possession with intent to distribute. While proof of intent may rest on permissible inferences from the circumstances of the transaction, mere conjecture and speculation unsupported by any such reasonable inference cannot satisfy the burden of the state to prove guilt beyond a reasonable doubt. State v. House, cited above. To meet its burden of proving possession with intent to distribute, the state must affirmatively show that the amount or circumstances of the possession are inconsistent with a possession for personal use.

We therefore conclude, as in House and Willis, that there is no evidence from which the jury might legitimately conclude that possession alone of the much diluted cocaine mixture, was accompanied by the intent to distribute, an essential element of the crime for which the accused was convicted. We must therefore reverse.

(4)

We have thus determined that the conviction should be reversed because there is a total lack of evidence to prove that the accused possessed the cocaine with the requisite intent to distribute it.

Under these circumstances, our earlier jurisprudence required that, upon this finding upon appeal, an accused be discharged from further prosecution. See State v. Daniels, 236 La. 998, 109 So.2d 896 (1959). However, in State v. Gatlin, 241 La. 321, 129 So.2d 4 (1961), we overruled this earlier jurisprudence, and we held that an accused was entitled only to what was requested by his motion thus sustained an appeal, i. e., a new trial.

Therefore, the issue of whether a re-trial on the possession-with-intent-to-distribute charge will offend double-jeopardy protections is not before us. It will be presented if, on the remand, the state attempts to re-try the accused upon the present charge rather than for simple possession.

(5)

Of the remaining issues of the present appeal, only the attack on the search warrant may be viable, should there be a re-trial. These Assignments 1, 2, and 4 were perfected with regard to the trial court’s denial of a motion to suppress the cocaine as illegally seized.

Despite the attempt to argue to the contrary, the essential basis for these assignments is the alleged facial insufficiency of the affidavit upon which the search warrant was based.

We do not find merit to the contentions raised. The affidavit recites that a confidential informant had personally observed a quantity of cocaine in the accused’s apartment, and that the informant had provided information in the past which had been verified and had led to narcotics arrests. The credibility of the informant and the reliability of the information is thus adequately established for purposes of the sufficiency of the affidavit upon which the search warrant was obtained. See State v. Paciera, 290 So.2d 681 (La.1974).

Decree

For the reasons set forth, we reverse the conviction and sentence, and we remand this case for further proceedings in accordance with law.

REVERSED AND REMANDED.

SANDERS, C. J., and SUMMERS, J., dissent.

MARCUS, J., concurs and assigns reasons.

MARCUS, Justice

(concurring).

I concur. The quantity and percentage of cocaine in the powdered substance found in defendant’s possession was too small to support an inference that the substance was intended for distribution. Proof of possession of Vioth ounce of a mixture of only 1% cocaine, without more, does not constitute some evidence of intent to distribute, which is an essential element of the crime charged.

      . Upon conviction for possession with intent to distribute, a defendant may be sentenced to imprisonment (which must be at hard labor) for not more than thirty years and may be fined. La.R.S. 40:967 B(l) (1973). On the other hand, a person convicted merely for possession is subject to imprisonment, with or without hard labor, for not more than five years, and to a smaller fine. La.R.S. 40:967 C (1973).

      . See La.R.S. 14:11: “Criminal intent; how expressed

      “The definitions of some crimes require a specific criminal intent, while in others no intent is required. Some crimes consist merely of criminal negligence that produces criminal consequences. However, in the absence of qualifying provisions, the terms ‘intent’ and ‘intentional’ have reference to ‘general criminal intent.’ ” (Italics ours.)
      See also Official Reporter’s Comment, which notes that the addition of the qualifying phrase “with intent to” denotes the specific intent required to commit the crime defined.

      . A gram is a metric weight measure equal to .035 ounce. 18.7 grams equals .655 of an ounce.

      . We pretermit whether, absent an affirmative showing by the state that a habitual user would not possess such a quantity, the mere monetary value of an amount of an expensive drug like cocaine would be “some evidence” permitting a jury to draw the conjectural inference that the cocaine was possessed, not for personal use but with intent to distribute.

      . An authoritative work states that, after importation, cocaine “is diluted or ‘cut’ so that one ounce of pure cocaine produces 16 ounces of ‘street’ cocaine.” Brecher, Licit and Illicit Drugs, p. 303 (Consumer’s Union Report, Little, Brown & Co., 1972). If this is correct, “street” cocaine would normally contain a little more than 6% cocaine.


author: SANDERS, Chief Justice. DIXON, Justice

text:
    STATE of Louisiana v. Willie SEALS and LeRoy Smith.
    No. 58595.
    Supreme Court of Louisiana.
    March 7, 1977.

      John L- Delahaye, Plaquemine, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Samuel C. Ca-shio, Dist. Atty., Alfred E. Mitchell, City Prosecutor, for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charges Willie Seals and LeRoy Smith, the defendants, with contributing to the delinquency of juveniles, violations of LSA-R.S. 14:92. Both defendants pled guilty. The city court sentenced each to two years in the parish jail.

The defendants appeal, relying upon four assignments of error for reversal of their convictions and sentences. As we find merit in Assignment of Error No. 2, we do not reach the remaining assignments.

ASSIGNMENT OF ERROR NO. 2

The defendants assert that the City Court of Plaquemine lacked jurisdiction over a contributing to the delinquency of juveniles charge. We agree.

The City Court of Plaquemine’s criminal jurisdiction

“is limited to the trial of offenses committed within [its] respective territorial [jurisdiction] which are not punishable by imprisonment at hard labor . . . .” LSA-R.S. 13:1894.

When the State charged the defendants, the statutes contained two irreconcilable penalty provisions. . See former LSA-R.S. 14:92(C). One penalty provision provided only for a jail sentence or a fine (Act 486 of 1968), and the other, enacted as emergency legislation, subjected a defendant to a possible sentence of hard labor (Act 647 of 1968).

Act 486 of 1968 provided:

“Whoever commits the crime of contributing to the delinquency of a juvenile shall be fined not more than one thousand dollars or be imprisoned in the parish prison for not more than two years, or both.”

Act 647 of 1968 provided:

“Whoever commits the crime of contributing to the delinquency of a juvenile shall be fined not more than one thousand dollars, or imprisoned for not more than two years, with or without hard labor, or both.”

If the látter penalty applies, the City Court of Plaquemine is without jurisdiction. Hence, we must determine which penalty provision governs the offense.

In State v. St. Julian, 221 La. 1018, 61 So.2d 464 (1952), we outlined the pertinent rules as follows:

“. . . [I]t is apparent that where the acts are in direct conflict the arbitrary rule, that the statute last in order of position will prevail, must be applied. This rule is recognized by the above quoted article of the LSA-Civil Code [LSA-C.C. Art. 23] with reference to laws where the former law is irreconcilable. There is no other reasonable rule that could be applied to conflicting statutes passed at the same session of the legislature than to hold that the later expression of the legislative will must govern.”

See also Dickerson v. Hennen, La.App., 249 So.2d 251 (1971); State v. Toups, La. App., 95 So.2d 55 (1957); 13 La.L.Rev. 606.

The Senate approved Act 486 on July 7, 1968, and Act 647 on July 9, 1968. The House of Representatives passed both acts on July 10,1968. 1968 Legislative Calendar of the State of Louisiana, 31st Reg.Sess., 193-194, 333. Therefore, the last legislative action on both bills occurred on the same date. The Legislature maintains no record of the exact time of legislative actions. The Governor signed both bills on July 20, 1968. Hence, we must turn to other sources to determine which penalty provision was the later expression of legislative will.

Louisiana Constitution of 1921 Article 3, § 26 provided:

“Whenever a bill that has been passed by both houses has been enrolled and placed in possession of the house in which it originated, the title shall be read, and at the request of any five members, the bill shall be read in full, when the Speaker of the House of Representatives or the President of the Senate, as the case may be, shall at once sign it in open house, and the act of signing shall be noted in the journal; thereupon the clerk or secretary shall immediately convey the bill to the other house, whose presiding officer shall cause a suspension of all other business to read and sign the bill in open session and without delay. As soon as bills are signed by the Speaker of the House and President of the Senate, they shall be taken at once, and on the same day, to the Governor by the clerk of the House of Representatives or secretary of the Senate. (Emphasis supplied.)

Presuming, as we must, that the Legislature complied with the above constitutional mandate by promptly transmitting the bills to the governor, we think that the time of the governor’s receipt is a proper guide in determining the later expression of legislative will. State v. Toups, supra; 1956 Reports and Opinions of the Attorney General of Louisiana 121.

The Governor received Act 486 on July 11, 1968, at 12:30 p. m., and Act 647 on July 11, 1968, at 2:00 p. m. From the time of receipt, we conclude that Act 647 was the later expression of legislative will. As we have noted, the penalty clause of that statute authorizes imprisonment at hard labor.

This Court considered this identical issue in State v. Coleman, La., 290 So.2d 906 (1974). There the State arrested the defendant for contributing to the delinquency of juveniles, among other charges. The State had not yet filed any formal charges stemming from the LSA-R.S. 14:92 violation. The defendant requested a preliminary examination, but the district court refused. The defendant then sought supervisory writs from this Court. In ordering a preliminary examination on the contributing-to-delinquency charge, we stated:

“On considering petition of the relator in the above entitled and numbered cause, it appears that the trial court judge was correct in denying a preliminary hearing on the two misdemeanor charges which are now supported by bills of information. However, the charge of contributing to delinquency of a juvenile is a felony under Act 647 of 1968, and relator is entitled to a preliminary examination under that felony charge." (Emphasis supplied.)

We hold that the City Court of Plaque-mine was without jurisdiction of this prosecution.

For the reasons assigned, the defendants’ convictions and sentences are annulled, and the case is remanded to the City Court of Plaquemine with instructions to dismiss the case for lack of jurisdiction, without prejudice to the institution of the prosecution in the district court.

DIXON, J., concurs with reasons.

DIXON, Justice

(concurring).

The City Court had no jurisdiction under either penalty. La.Const. Art. I, § 17 provides for jury trial when penalty may be for more than six months. R.S. 13:1895 prohibits jury trials in city court. When a statute contains two penalties, under the rule of strict construction of penal statutes in favor of the accused, if the statute itself is upheld, only the lesser penalty is available.

      . In 1976, the Legislature corrected this dual penalty problem. Act 121 amended LSA-R.S. 14:92 by enacting provisions creating penalties with and without hard labor depending upon which subsection of the statute the defendant violated.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Clifford SELMON.
    No. 58638.
    Supreme Court of Louisiana.
    March 7, 1977.
    Bernard A. Horton, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty.. Gen., Harry Connick, Dist. Atty., M. Charles Brandt, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant Clifford Selmon was charged by bill of information with an aggravated battery occurring on July 1, 1975, in violation of R.S. 14:34. He waived trial by jury and was subsequently found guilty as charged by the trial judge on November 7, 1975. Thereafter the State filed a multiple bill, pursuant to R.S. 15:529.1, charging that defendant had previously been convicted of three different crimes. To this bill defendant filed a motion to quash. On June 11, 1976 the trial judge quashed the bill insofar as two California convictions were concerned because the records of those guilty pleas did not affirmatively reveal that defendant was either represented by counsel or had waived his rights. However, insofar as the bill alleged a prior Louisiana conviction for aggravated battery committed on February 26, 1975, the judge overruled the motion to quash and found defendant to be a “second offender.” Defendant was later sentenced to four and one-half years at hard labor. He relies upon two assignments of error for reversal of his conviction.

Assignment of Error No. 1

During the cross-examination of a defense witness the State inquired whether the witness knew what perjury was and when he responded in the negative the prosecutor briefly explained the crime, told the witness the penalties for perjury and and also mentioned that due to the witness’ past record the penalties would be enhanced if he were convicted of perjury. The defense counsel strenuously objected to this line of questioning on the basis that the prosecutor was intimidating the witness. The trial judge permitted the questioning and this ruling forms the basis of this assignment of error.

In State v. Spotville, 308 So.2d 763 (La.1975), the court noted that the “preferable procedure” would be to read the perjury statute to the witness out of the presence of the jury. The court further noted that in that case the reading of the statute in the presence of the jury created no prejudice because even assuming that such tactics “badgered” the witness or implied to the jury that the witness should not be believed, the State had already begun impeaching the witness by prior inconsistent statements, and the possible discrediting of the witness by reading the perjury statute added nothing to what the State had already done. In this case the .State had the witness on cross-examination, and the prosecutor did not dwell on the subject of perjury but only informed the witness, who admittedly did not know the consequences of his oath, of the importance of telling the truth. In addition, this was not a jury trial, and the judge found that the witness was in fact not intimidated. This assignment does not present reversible error.

Assignment of Error No. 2

In this assignment defendant contends that the trial judge erred in overruling his motion to quash the multiple bill. He argues that since Louisiana Constitution Article I, § 20 restores “full rights of citizenship . . . upon termination of state . . . supervision following conviction for any offense,” the State is precluded from using his prior conviction to enhance the penalty for aggravated battery. Since the offense utilized in the multiple bill was committed after the effective date of the present Constitution, we cannot rely for the disposition of this assignment upon prior cases which have pretermitted this issue on the basis that § 20 does not' have retroactive effect. State v. Maduell, 326 So.2d 820 (La.1976). See also State v. Williams, 326 So.2d 815 (La.1976); State v. Harvey, 329 So.2d 731 (La.1976).

It has been held that a full complete pardon by the Governor precludes the use of the pardoned offense to enhance punishment. State v. Childers, 197 La. 715, 2 So.2d 189 (1941); State v. Lee, 171 La. 744, 132 So. 219 (1931). This is a minority rule; the great majority of American jurisdictions allow the use of a pardoned offense to enhance punishment under recidivist statutes. Miller, B. R., The Declaration of Rights: Criminal Provisions, 21 Loy.L.Rev. 43, 50 (1975); Annot., Pardon as Affecting Consideration of Earlier Conviction in Applying Habitual Criminal Statute, 31 ALR2d 1186. In addition, the Louisiana cases involved full pardons restoring the status of innocence, “not a mere restoration to citizenship. State v. Lee, 171 La. at 748-49, 132 So. at 220. Thus, it does not appear that the cited cases are authority for defendant’s proposition. Rather, it is necessary to determine the sense of Article I, § 20 from its wording and the drafters’ intent.

As distinguished from the pardons in the Lee and Childers cases, by its express wording § 20 only restores “rights of citizenship.” Thus, the provision does not contemplate that the status of innocence be restored; only that those rights a citizen may exercise shall be available once supervision following conviction has ceased. Furthermore, only rights which were taken away by the conviction may logically be “restored.” A person, prior to his conviction, does not have a “right” to prevent the use of convictions to enhance punishment for later offenses; the section does not admit of a construction that the restoration of the .rights of citizenship precludes the operation of the habitual offender statute.

The constitutional debates on this section support the conclusion that the habitual offender laws were not rendered unconstitutional by the adoption of this provision. As originally proposed the section provided that “full rights” be restored. However, this original wording precipitated debates on whether the broad language would affect the applicability of multiple offender laws. Hargrave, L., The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 64 (1974). The debates reveal that the ultimate language, “rights of citizenship,” was adopted to make it clear that the drafters’ intent was to restore the customary rights a citizen may exercise (the rights to vote, work, hold public office, etc.) and not to automatically erase the fact of the conviction. Verbatim Transcripts of the Constitutional Convention of 1973, Vol. XIV, 44th day, pp. 44-45, 57-58, 60-61 (hereinafter cited as Verb.Tr.). See also Hargrave, supra, at 64. Indicative of the drafters’ intent in this regard is the following passage where delegate Gravel stated:

“. . . Let me make sure that there is no misunderstanding about what this particular amendment does. All it does, and I think Mr. Derbes has already said it, but I think it needs to be said again, is to say that after a person has served his time in the penitentiary or in jail, or after he has served his period of probation and/or parole, after, so to speak, his debt fully to society has been paid, society will then say, ‘Okay, we’re going to restore to you a couple of limited rights, the rights that you, as a citizen have, and that is the right to vote and the right to hold a job, let’s say with the state, or to run for office. It doesn’t do anymore than that. It doesn’t say that you can’t be prosecuted as a second, third, fourth, or fifth offender in the future if you commit other offenses. It doesn’t say that you are pardoned for the crime that you have committed and'that your slate has been wiped clean. It simply says that we’re going to give you back the minimum things that have been taken from you because you have earned them. You have served your time or you have responded to the duties and obligations imposed upon you by the order of probation or the order of parole, depending upon what the case may be. This gives some additional hope to the man who has really tried to and has done what society says he must do, and that is, pay his debt. He’s done it. Now, that’s all that this amendment does. Mr. Chairman, if there are no further speakers, I would like to move the previous question.” Verb.Tr., pp. 60-61.

Therefore, we conclude that the multiple billing in this case does not violate La. Const. Art. I, § 20 and the judge properly overruled defendant’s motion to quash same.

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


author: MARCUS, Justice. TATE, Justice,

text:
    STATE of Louisiana v. Johnny ROSS.
    No. 58681.
    Supreme Court of Louisiana.
    March 7, 1977.

      John L. Carroll, Morris S. Dees, Montgomery, Ala., George M. Strickler, Jr., New Orleans, Stephen J. Katz, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Lawrence J. Centola, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Johnny Ross was indicted by the grand jury for the Parish of Orleans for having committed aggravated rape in violation of La.R.S. 14:42. After trial by jury, he was found guilty as charged and sentenced to death. On appeal defendant relies on twelve assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 4 AND 8

Defendant contends the trial judge erred in denying his motion to suppress his written confession and in permitting its introduction into evidence at trial. He argues that his confession was not freely and voluntarily made.

The record of the suppression hearing reflects that defendant, Johnny Ross, is a sixteen-year-old juvenile who can read and write and has completed the eighth grade. At approximately 4:15 a. m. on July 25, 1974, he was arrested at his home in the presence of relatives by several police officers including Officer Steven London who testified that defendant was verbally advised of his rights when arrested. Neither defendant nor any member of his family ever requested that a family member be allowed to accompany him to police headquarters. Immediately after arrest, defendant was placed in the custody of Officers London and Bruno who again advised him of his rights enroute to the station-house. Upon arrival there at 5:15 a. m., defendant was carefully read his rights from a Rights of Arrestee Form which he thereafter signed, acknowledging his understanding thereof, in the presence of Officers London and Bruno. At this point, defendant indicated that he wished to cooperate and speak with the officers about the matter. He was then taken to central lockup (5:55 a. m.) where he was booked with the charge and at 6:25 a. m. was returned to the homicide office. The officers then proceeded to obtain defendant's confession by means of questions and answers which were typed by Officer Bruno as they progressed. At the conclusion, Officer Bruno reviewed the four-page statement with defendant in order to assure that he understood it and that it accurately reflected his statements. Defendant signed the confession in the presence of Officers London and Bruno. The taking of the statement was commenced at 6:40 a. m. and was concluded at 8:20 a. m. Both of these officers testified that defendant had been in their custody continuously from the time of his arrest until he signed the inculpatory statement. They clearly maintained that defendant had never been threatened, coerced, physically abused or promised anything in order to induce his confession.

Defendant’s testimony at the suppression hearing was contrary to that of the police officers. He admitted that he had signed a waiver of rights form; however, he contended that he was not advised of his rights until after his confession had been secured. There is no evidence that defendant ever requested that an attorney or family member be present during the questioning. Defendant claimed that when he signed the four-page confession, only the phrase “No Statement” had been typed on each page. He alleged that he was beaten by the interrogating officers in order to secure his signature. Defendant testified that he had requested his mother to send a doctor to the prison to treat him and that he had shown at least one of the bruises received in the incident to a physician at central lockup. However, neither of these persons was called to testify in support of defendant’s story. Defendant also claimed that Mr. Bogart, his attorney’s investigator, had seen the bruises he had received in the alleged beating. Yet when Mr. Bogart was unable to testify at the hearing due to illness, defense counsel chose not to request a continuance. We further note that defendant did not complain of any abusive conduct when he was interrogated by FBI officers later that day. In fact, he admitted having given them a similar inculpatory statement without having been threatened or physically abused. In sum, defendant’s testimony concerning the events surrounding his confession was wholly uncorroborated. His allegations were specifically contradicted by Officers London and Bruno who were in custody of defendant at all times relevant to this matter.

Before a written confession can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, inducements or promises. La.R.S. 15:451; La.Code Crim.P. art. 703(C). It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A confession need not be the spontaneous act of the accused and may be obtained by means of questions and answers. La.R.S. 15:453; State v. Simmons, 340 So.2d 1357 (La.1976). While close scrutiny is required in determining whether the state has met its heavy burden of demonstrating that the confession of a juvenile was free and voluntary, we have held that the age of a defendant does not of itself render a confession involuntary. State v. Sylvester, 298 So.2d 807 (La.1974). The voluntariness of the confession is a question of fact. State v. Demourelle, 332 So.2d 752 (La.1976); State v. White, 321 So.2d 491 (La.1975).

It is well settled that admissibility of a confession is a question for the trial judge; its weight is for the jury. Conclusions of the trial judge on the credibility and weight of testimony relating to the voluntariness of a confession for the purpose of admissibility will not be overturned on appeal unless they are not supported by the evidence. State v. Hollingsworth, 337 So.2d 461 (La.1976); State v. Sims, 310 So .2d 587 (La.1975).

After reviewing the record, we are convinced, as was the trial judge, that the state satisfied its burden of affirmatively proving that the written confession was freely and voluntarily made after defendant had been fully advised of his Miranda rights. Defendant’s uncorroborated assertion that he was beaten and did not understand his rights is insufficient to render his confession inadmissible in view of the affirmative evidence to the contrary. Accordingly, the trial judge did not err in denying defendant’s motion to suppress and in admitting his confession in evidence.

Assignments of Error Nos. 4 and 8 are without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred when he excused for cause fifteen jurors challenged by the state based on their sentiments regarding the death penalty.

La.Code Crim.P. art. 798 provides in pertinent part:

It is good cause for challenge on the part of the state, but not on the part of the defendant, that:
(2) The juror tendered in a capital case who has conscientious scruples against the infliction of capital punishment and makes it unmistakably clear (a) that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (b) that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant’s guilt;

This article was amended to conform with the decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), wherein the United States Supreme Court held that the exclusion of prospective-jurors in a capital case who merely expressed conscientious or religious scruples against capital punishment violates an accused’s constitutional rights under the sixth and fourteenth amendments with respect to the jury’s role as arbiter of the punishment to be imposed.. On the other hand, the Court found no constitutional bar to excluding jurors who stated in advance of trial that they could not return a verdict of guilty under any circumstances, regardless of the proof at trial. Defendant contends, however, that, even if the jury is qualified in compliance with the standards outlined in Witherspoon and La.Code Crim.P. art. 798, it is nevertheless constitutionally infirm and violative of his rights under the sixth and fourteenth amendments with respect to the question of guilt or innocence. He argues that such a jury is conviction prone and non-representative of the community. These contentions were rejected in Witherspoon. There, the Court held that no showing was made that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. Under these circumstances, the Court refused to upset the conviction even though the jury had not been selected in accordance with the standards enunciated therein. Only the death sentence imposed was reversed. A fortiori, we reject defendant’s contention herein that, even if the jury was qualified in accordance with With-erspoon standards and La.Code Crim.P. art. 798, it was nevertheless constitutionally infirm and violative of his rights under the sixth and fourteenth amendments with respect to the question of guilt or innocence.

Defendant further argues, however, that in the instant case five jurors were excused who expressed only general opposition to the death penalty. After carefully examining the record of voir dire examination, we are satisfied that four of these jurors were properly excused in strict compliance with the standards set out in Witherspoon and La.Code Crim.P. art. 798(2). The responses made by these prospective jurors clearly indicated that regardless of the evidence they would not concur in a verdict of “guilty of aggravated rape” because of their refusal to apply the death penalty required by statute upon conviction. With respect to the remaining jur- or whose excusal is in dispute, the record discloses that he was unable to answer the questions propounded by the court concerning his ability to render a verdict carrying the mandatory death penalty. The juror indicated that in the past he had not believed in capital punishment but presently did not know what his position was. Hence, it was impossible for the trial judge to ascertain whether or not this prospective juror would be able to reach an impartial decision based on the evidence when the time came to determine guilt or innocence. We are not convinced that it is improper to excuse a juror for cause where, as here, the juror is unwilling to assure the court that he can be neutral with respect to penalty.

In any event, the mandatory death penalty provision of our aggravated rape statute was invalidated by the United States Supreme Court decision in Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976). In accordance with this decision, the practice of this court is to vacate death sentences in aggravated rape cases and remand the cases to the trial court for resentencing of defendants to the most serious penalty for the next lesser included offense at the time of the commission of the crime. State v. Craig, 340 So.2d 191 (La.1976); State v. Lee, 340 So.2d 180 (La.1976).

We have uniformly held that a defendant insulated from the death penalty has no valid Witherspoon complaint. State v. Nicolaus, 340 So.2d 296 (La.1976); State v Hunter, 340 So.2d 226 (La.1976); State v. Miles, 339 So.2d 735 (La.1976); State v. Rester, 309 So.2d 321 (La.1975).

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 7

Defendant contends that the trial judge erred in admitting at trial the victim’s testimony identifying him as one of her assailants. He argues that this testimony was tainted by pretrial identification procedures which rendered its use against him a denial of his right to due process of law.

The record reveals that on -August 1, 1974, two weeks after her rape, the victim in this case viewed a lineup of six young men including defendant. Defendant was represented at this lineup by counsel who testified at the pretrial suppression hearing that the lineup procedure had been neither improper nor suggestive. The victim was unable to identify defendant from the lineup and explained to the officer in charge that she had not been able to see very well from where she was seated. Approximately fifteen minutes later, the victim was asked to view a photographic showup, whereupon she identified defendant as one of two men who had forceably raped her. Defendant contends that this procedure was impermissibly suggestive in that he was the only subject who appeared in both the lineup and subsequent photographic showup.

The test of whether an out-of-court identification was so impermissibly suggestive and conducive to mistaken identification that defendant was denied due process of law must be determined by the facts of each case. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). A claimed violation of confrontation depends on the totality of circumstances surrounding it. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Therefore, even if the out-of-court identification was tainted, if the in-court identification had a source independent of the out-of-court identification, the in-court identification does not violate defendant’s due process rights. State v. Judson, 329 So.2d 742 (La.1976); State v. Peevy, 321 So.2d 324 (La.1975); State v. Payton, 294 So.2d 211 (La.1974); State v. Moseley, 284 So.2d 749 (La.1973).

In the instant case, the rape victim was driving home in her automobile when she was rear-ended by defendant’s vehicle. When she got out of her car to inspect the damages, defendant and his companion forced her into her car and positioned themselves on either side of her. The two men drove the victim around the city, stopping first at a gas station for gas and then near a warehouse where the victim was forced at gunpoint to undress and submit to repeated acts of sexual intercourse in the back seat of her car. After completing the forcible assaults on the victim, the two men continued to drive the victim around the city, stopping at a bar to purchase cigarettes and eventually taking the victim to the area near where she lived. The aforesaid events extended over a period of about two hours. During this period, the victim, a federal law enforcement officer, had ample opportunity to observe and identify defendant as one of her assailants. At trial, she made a positive identification of defendant.

In view of the totality of the circumstances, particularly the close proximity of defendant and the length of time spent in the victim’s presence, we are satisfied that the in-court identification of defendant was based independently on the victim’s observations before, during and after the offense. Therefore, whether or not the pretrial identification procedures were tainted, the in-court identification did not violate defendant’s due process rights because the in-court identification had a source independent of the out-of-court identification. State v. Bland, 310 So.2d 622 (La.1975); State v. Peevy, supra. Accordingly, the trial judge did not err in admitting the victim’s in-court identification testimony.

Assignment of Error No. 7 is without merit.

ASSIGNMENTS OF ERROR NOS.

11 AND 12

In these assignments of error, defendant contends that he was denied effective assistance of counsel in that his retained trial attorney failed to adequately prepare and present his defense. More particularly, defendant alleges that trial counsel relied entirely upon Mr. William Bogart, Sr., his investigator, for the factual preparation of the case. Mr. Bogart was prevented by illness from testifying both at hearings on defendant’s pretrial motions and at trial on the merits. Defendant argues that, despite the fact that trial counsel knew of Mr. Bogart’s illness and that he (Bogart) possessed information crucial to his defense, he did not seek a continuance of the hearing on the motion to suppress. Additionally, defendant contends that trial counsel did nothing to prepare for trial, but rather continued to rely on Mr. Bogart’s absence as an excuse for his failure to present a meaningful defense.

Based on the record before us, we are unable to determine the merits of the accusations of ineffectiveness leveled at defendant’s trial counsel. Such allegations as are made here are more properly raised by writ of habeas corpus at which time a full evidentiary hearing may be ordered on the matter. State v. Mouton, 327 So.2d 413 (La.1976). Accordingly, we decline to review the issue raised in Assignments of Error Nos. 11 and 12 at this time.

After defendant was sentenced in this matter, the United States Supreme Court in Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976) held unconstitutional Louisiana’s mandatory death sentence for aggravated rape. In accordance with this decision, this court has vacat-éd death sentences in aggravated rape cases but, when no other reversible error has been found, we have remanded the cases to the trial court for resentencing of defendants to the most serious penalty for the next lesser included offense at the time of the commission of the crime. State v. Craig, 340 So.2d 191 (La.1976); State v. Lee, 340 So.2d 180 (La.1976). In the instant case, the crime was committed on July 17, 1974. The most serious penalty for the next lesser included offense at that time was simple rape carrying a maximum penalty of twenty years. Accordingly, even though we affirm the conviction, we vacate and set aside the imposition of the death penalty and remand the case to the trial court for resentencing.

DECREE

For the reasons assigned, defendant’s conviction is affirmed, but the death sentence imposed on him is annulled and set aside, and the case is remanded to the district court with instructions to the trial judge to resentence defendant.

TATE, J., concurs and assigns reasons.

CALOGERO, J., concurs for the reasons assigned by TATE, J.

TATE, Justice,

concurring.

(1)

The voluntariness of the confession of the accused presents in this case a serious issue.

The accused, a sixteen year old minor, executed a waiver of rights from prior to his questioning in the early hours of the morning, just after he was roused from his bed, arrested, taken to the scene of the crime, and then to the detective bureau. After the initial questioning at the police station, interrogation was resumed at 6:25 a.m. and continued until 8:40 a.m., when he signed the confession here at issue. The accused did not have the benefit of the advice of any older member of his family, when (surrounded by police officers in his solitariness in the police station) he waived his right to the assistance of counsel and to counsel’s presence at his questioning.

I would say that, in most such instances that have come before us, the investigating officers have taken the precaution to assure that a juvenile is allowed to confer with his parent or an older member of his family before he is permitted to waive the important constitutional right of counsel. This helps to assure the fairness of his waiver and of his interrogation, and the voluntariness of any statement thereby obtained.

I am not as yet prepared to say that such commendable procedure is required before a court may hold that there was an informed waiver by a juvenile of his constitutional rights to protection during interrogation while in custodial detention. However, persuasive reasons exist to hold that constitutionally a minor may not waive these important constitutional rights without the benefit of responsible and disinterested advice. See concurring opinion of Judge Fedoroff, State in Interest of Holifield, 319 So.2d 471, 474 (La.App. 4th Cir. 1975). The better practice for the state, it seems to me, would be to avoid the real possibility of constitutional invalidity of custodial interrogation of a minor by making certain, before he waives his right to the assistance and presence of counsel, that he does so on an informed basis and only after access to responsible advice from some older members of his family or from other non-police sources.

In the present case, I am unable now to hold that, judged by presently existing standards, the confession was involuntary and that the waiver of Miranda rights was not on an informed basis. The issue is close, nevertheless. I therefore concur in the majority’s opinion with great reservation that there was indeed an informed waiver of constitutional rights, without which the confession is constitutionally deemed involuntary.

(2)

I must also once again note that it is contrary to law and tantamount to allowance of additional peremptory challenges to the state to exclude from a petit jury in a capital case those prospective jurors with mere scruples against capital punishment, but with no fixed opinion which will prevent them from accepting the instructions of the court as to the issue. See La.C.Cr.P. arts. 798(2) and 800 and my concurring opinion in State v. Miles, 339 So.2d 735, 740 (La.1976).

I therefore cannot agree with the majority’s alternative rationale that the present accused cannot complain of such exclusion because, on appeal, the death penalty assessed by the trial jury is set aside.

However, I agree with the majority that no such jurors were thus erroneously excluded for cause under the voir dire examinations of them reflected by the present record.

      . Assignments of Error Nos. 1, 2, 3, 6, 9 and 10 have been neither briefed nor argued to this court. Hence, we consider them to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . La.Code Crim.P. art. 799 allows the state twelve peremptory challenges for each defendant in a trial of an offense punishable by death. The minutes reflect that the state only used eleven of its peremptory challenges. Therefore, even if this juror was improperly excused, any contention that the effect of such ruling was the exercise by the state of more peremptory challenges than it was entitled to by law is without merit. La.Code Crim.P. art. 800.


author: PER CURIAM.

text:
    STATE of Louisiana v. Steve PERKINS.
    No. 58702.
    Supreme Court of Louisiana.
    March 9, 1977.
    C. Alvin Tyler, C. Alvin Tyler & Associates, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty.. Gen., Ossie Brown, Dist. Atty., Ralph L. Roy, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Defendant’s conviction is affirmed, but the death penalty imposed is annulled and set aside, and the case is remanded to the district court, with instructions to sentence defendant to imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); State v. Jenkins, 340 So.2d 157 (La.1976).


text:
    STATE of Louisiana v. Roy David HALL.
    No. 58762.
    Supreme Court of Louisiana.
    March 9, 1977.
    Charles W. Seaman, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., Eric R. Harrington, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Dannie MAC HEARD.
    No. 58763.
    Supreme Court of Louisiana.
    March 9, 1977.
    A. Deutsche O’Neal, Jr., O’Neal & Ryan, Prentiss B. Cox, Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., Alexander L. Doyle, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant’s conviction is affirmed, but the death penalty imposed is annulled and set aside, and the case is remanded to the district court, with instructions to sentence defendant to imprisonment at hard labor for a period of twenty years. Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); State v. Sledge, 340 So.2d 205 (La.1976); State v. Lee, 340 So.2d 180 (La.1976).


text:
    STATE of Louisiana v. Frank JONES.
    No. 58771.
    Supreme Court of Louisiana.
    March 9, 1977.
    Tilden Greenbaum, III, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry Connick, Dist. Atty., M. Charles Brandt, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Anthony BARNES.
    No. 58772.
    Supreme Court of Louisiana.
    March 9, 1977.
    Barry F. 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., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Walter WILLIAMS, Jr.
    No. 58773.
    Supreme Court of Louisiana.
    March 9, 1977.
    Barry F. 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 Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Otis James LEWIS.
    No. 58774.
    Supreme Court of Louisiana.
    March 9, 1977.
    Sam Nelken, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., Eric R. Harrington, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

While there is no merit to defendant’s assignment of error, the sentence to twenty-five years at hard labor without benefit of probation, parole or pardon is improper. The gubernatorial power to pardon may not be precluded by the terms of a sentence. La.Const. Art. 4, § 5(E) (1974); State v. Williams, 338 So.2d 672 (La.1976); State v. Spotville, 308 So.2d 763 (La.1975).

Defendant’s conviction is affirmed, but the sentence is vacated and set aside. The case is remanded to the trial court for re-sentencing in accordance with the foregoing.


text:
    STATE of Louisiana v. Robert DREAUX, Jr. and Michele Dreaux.
    No. 58786.
    Supreme Court of Louisiana.
    March 9, 1977.
    Joseph Neves Marcal, III, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Waldo SHORT.
    No. 58816.
    Supreme Court of Louisiana.
    March 9, 1977.
    Kenneth J. Berke, Stahl & Berke, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Emile EDWARDS.
    No. 58836.
    Supreme Court of Louisiana.
    March 9, 1977.
    Douglas P. Wilson, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Leonard PIERCE.
    No. 58871.
    Supreme Court of Louisiana.
    March 9, 1977.
    Joseph F. Grefer, Gretna, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Regina C. Cooper, Asst. Dist. Atty., Research and Appeals Div., Gretna, for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Mitchell BAXTER.
    No. 59358.
    Supreme Court of Louisiana.
    March 9, 1977.

      Lyman Gore, Philip A. LeTard, Vidalia, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., W. C. Falken-heiner, Dist. Atty., Glenn Gremillion, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

This case involves an appeal by defendant Mitchell Baxter, prior to sentencing, from a denial of a motion for a new trial. The appellate jurisdiction of this Court, however, does not extend to such matters. Where, as in the instant case, a defendant has been convicted of a felony, he may appeal to the supreme court only from a final judgment, i. e. following the imposition of sentence. La.Const. art. 5, § 5(D) (1974); La.C.Cr.P. arts. 912, 912.1.

Accordingly the appeal is dismissed as premature.


author: TATE, J., DIXON, J.,

text:
    STATE of Louisiana ex rel. Edward CLAYTON v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 59319.
    Supreme Court of Louisiana.
    March 18, 1977.
    M. H. Gertler, Gertler & Gertler, New Orleans, for plaintiff-relator.
    Harry F. Connick, Dist. Atty., New Orleans, for defendant-respondent.
   In re: Edward Clayton, applying for writ of habeas corpus and review.

Writ refused. The record shows that plea was free and voluntary.

TATE, J.,

assigns as additional concurring reasons that this plea of guilty was made prior to State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972).

DIXON, J.,

is of the opinion this writ must be granted. There is no contemporaneous record of a Boykinization. The attempt to reconstruct the Boykinization shows the defendant was not informed of and did not waive his privilege against self-incrimination, his right to trial by jury nor his right to confront his accusers. Here the court fails to follow state law,"to say nothing of federal law. In State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85, we set aside the plea of guilty for failure to comply with Boykin. The plea of guilty in Jackson was taken on February 24, 1970. The plea in this (Clayton) case was taken September 21, 1970. The attempt in Le-Blanc v. Henderson, 261 La. 315, 259 So.2d 557, to limit the application of Boykin to pleas entered after Dec. 8, 1971, the date of the finality of Jackson v. Henderson, received only 3 votes on this court and could not in any event postpone the application and effect of Boykin v. Alabama.

CALOGERO, J., is of the opinion the writ should be granted.


text:
    Charles William JAMES v. SAFECO INSURANCE CO. OF AMERICA et al.
    No. 59399.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: Charles William James applying for certiorari, or writ of review, to the Court of Appeal, 341 So.2d 1252, First Circuit, Parish of East Baton Rouge.

Writ refused. On the facts found by the court of appeal, there is no error of law in its judgment.

DIXON, J., concurs in the denial.


text:
    Donald E. McLEOD, Jr., et ux., v. Eugene A. WOODEL et al.
    No. 59415.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: Donald E. McLeod, Jr. and Marilyn Louise Walker McLeod applying for cer-tiorari, or writ of review, to the Court of Appeal, 341 So.2d 1261, Second Circuit, Parish of Caddo.

Writ denied. Under the facts found, no error of law.

DIXON, J., dissents from the denial.


text:
    STATE of Louisiana v. Jerry Lynn COLLINS.
    No. 59348.
    Supreme Court of Louisiana.
    March 30, 1977.
   In re: State of Louisiana through the District Attorney, Ossie Brown, applying for supervisory writs.

Writ denied. No error of law has been shown in the trial judge’s ruling.

SANDERS, C. J., and SUMMERS, J., are of the opinion that a writ should be granted.

MARCUS, J., is of the opinion that the writ should be granted.


author: JONES, Judge.

text:
    Hoyle T. McWHINEY, Individually and as Administrator of the Estates of his minor children; and as Curator, et ux., Plaintiffs-Appellants, v. TRAVELERS INSURANCE COMPANY et al., Defendants-Appellees.
    No. 13125.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1976.
    En Banc. Rehearing Denied March 21, 1977.

    Writ Refused May 26, 1977.
    Edwards, Stefanski & Barousse by Nolan J. Edwards, Homer Ed Barousse, Jr., Crowley, for Hoyle T. McWhiney and Jennie Rambin McWhiney, plaintiffs-appellants.
    Blanchard, Walker, O’Quin & Roberts by Joseph W. Milner, Wm. Timothy Allen, III, Shreveport, for Braswell Ind., Inc.; Travelers Ins. Co., Larry Dandridge, Morris J. Gulledge, John B. Howell, Byron Braswell, Jr., and Mary Leahy, defendants-appellees.
    Booth, Lockard, Jack, Pleasant & LeSage by Henry A. Politz, Shreveport, for J. B. Stevens and Billy M. Rowell, defendants-appellees.
    Before PRICE, MARVIN and JONES, JJ.

       Bolin, J., took no part in en banc denial of rehearing.

   JONES, Judge.

Plaintiffs appeal from a decision of the trial court which granted defendants’ Motion for a Summary Judgment and dismissed plaintiffs’ case with prejudice. We reverse and remand.

Patrick L. McWhiney was found dead in his parked automobile on August 13, 1975, on a rural road in Caddo Parish. He had been employed by Braswell Industries, Inc., from March, 1974 until his death. Following discovery of his body, an autopsy was performed by the Parish Coroner, Dr. Willis P. Butler, Sr.

Suit was filed on October 30, 1975 by decedent’s mother, individually, and his father, individually, and as administrator of the estates of his minor children (decedent’s siblings), and curator of an interdicted child. The suit asserted a workmen’s compensation claim against decedent’s employer, Braswell, and its insurance carrier, Travelers Insurance Company. It also stated a tort action against seven supervisory or managerial employees of Braswell, claiming these employees breached their duty to protect decedent from hazardous and dangerous working conditions. When defendants excepted to the improper cumulation of the actions, plaintiffs amended their petition to exclude their workmen’s compensation claim.

Defendants moved for Summary Judgment and in support of the motion attached Dr. Butler’s deposition, his affidavit, and the affidavit of Braswell’s administrative manager. Plaintiffs did not file opposing affidavits.

The trial court found, based upon the affidavits and deposition submitted, that the cause of death was carbon monoxide inhalation which could not be causally related to decedent’s employment and granted defendants’ motion for a summary judgment. We find the summary judgment was improperly granted.

The administrative manager’s affidavit stated only that decedent had not been at work for five days prior to his death.

In his affidavit Dr. Butler states, in part: “ * * * [UJpon investigation of the essential facts concerning the circumstances of the death and history of the case, his opinion was that the cause of death of Patrick L. McWhiney was due to . the infiltration by imbibition of the entire lungs with carboxyhemoglobin (CO), or the consolidation of mineral dust in the lungs and
“That on the basis of the above examination and autopsy of the deceased, Patrick L. McWhiney, his education and experience as a forensic pathologist and as Coroner of Caddo Parish, and his investigation of the essential facts and circumstances concerning the death and history of the case . . . it is the opinion of deponent that the above said causes of death as diagnosed by him cannot be causally related or connected to the employment of the said Patrick L. McWhiney. ...”

Dr. Butler’s affidavit in support of the motion cannot be considered in its entirety. Dr. Butler has no personal knowledge concerning the facts surrounding decedent’s employment, or conditions or hazards of the employment to which decedent might have been exposed, nor does he have any personal knowledge concerning the facts or circumstances surrounding decedent immediately prior to and at the time of his death. Since LSA-C.C.P. Art. 967 requires personal knowledge of the facts as a basis of a supporting affidavit, Dr. Butler’s opinion as to the absence of a causal relationship between decedent’s work and his death cannot be considered in support of defendants’ motion.

As stated in Hidalgo General Fire and Casualty Company, 254 So.2d 493 (La.App., 3d Cir. 1971):

“ * * * In the law of evidence ‘personal knowledge’ means something which the witness actually saw or heard, as distinguished from something he learned from some other person or source. The purpose of the requirement of ‘personal knowledge’ in Article 967 is to limit the affidavits to facts which the affiant saw, heard or perceived with his own senses. The mere opinion of an expert witness, based solely on his special training and experience, is not based on ‘personal knowledge’, as this is used in Article 967.” Id. p. 496

That portion of an affidavit not based on personal knowledge should not be considered by the trial court in deciding a motion for summary judgment. Warden v. Southwest Louisiana Hospital Association, 300 So.2d 590 (La.App., 3d Cir. 1974).

Further, a careful reading of Dr. Butler’s deposition reflects there exists an issue of material fact as to the cause of death. In his deposition, Dr. Butler discusses how he arrived at the determination of decedent’s cause of death. Although he diagnosed the death as caused by either carbon monoxide poisoning or the consolidation of mineral dust in decedent’s lungs, he admits his diagnosis is not supported by the lab tests. He explained by use of the term mineral dust he meant iron crystals which were probably present in the blood but stated the lab tests showed no indication of either carbon monoxide or iron crystals. He admits the carbon monoxide, if this was the cause of death, was not necessarily inhaled and he doesn’t know where it came from. He also stated not all laboratory tests had been performed, and his opinion that the cause of death was carbon monoxide poisoning was rendered “ . . . because I had nothing else to fall back on. . . . ” He admitted the overall autopsy examination had not been as thoroughly performed as he might wish:

“Frankly, I am extremely embarrassed to have to make such a report as this. Now, if I had the benefit before autopsy was done of a report from the investigators I don’t know what it would be but there might have been some other procedures we could have followed but in this case all we had was a body and the general appearance of it that I have seen so many times never anything except one of those poisons [i. e., carbon monoxide or cyanide] due to the color of monoxide and I arrived at that conclusion which I can’t — I am not backed up in it.”
“ * * * I am frankly ashamed to have to report such an inefficient or incomplete type of report because I, in my mind, I’d summarize it by saying that I have no doubt in my mind that there might have been other causes of death. . ” (emphasis added)

As to plaintiffs’ contention that the death could have been caused by silicosis from decedent having inhaled cement dust at work, Dr. Butler initially explained that the term mineral dust as used in his autopsy report referred to iron crystals. When asked if there was evidence of silica, he stated he didn’t know what the particles present in the lungs were. His basis for stating they were iron was not based on a specific test, but on the way in which the tissue samples took a stain. Again, he admitted this opinion was not supported by the lab tests. He states in the deposition that he didn’t think the mineral dust related to the cause of death, and yet in his affidavit he gave as an alternative cause of death “ . . . the consolidation of mineral dust in the lungs. . . . ”

The test as to the presence of an issue of fact has been stated by the Louisiana Supreme Court in Odom v. Hooper, 273 So.2d 510 (La.1973):

“ * * * All doubt concerning dispute as to a material issue of fact must be resolved against granting the motion for summary judgment and in favor of trial on the merits. . . . It is well settled that a motion for summary judgment is not to be used as a substitute for trial. If there is any doubt concerning an absence of dispute as to a material fact, a motion for summary judgment must be denied and the matter resolved in favor of trial on the merits. . . . ” (Citations omitted; emphasis added) Id. p. 515

While plaintiffs may not rest on the mere allegations of their pleadings to counter defendants’ affidavits and deposition, it is incumbent upon defendants to show there is no doubt that at least one material fact, necessary for plaintiffs to prevail on the merits, has been established adversely to plaintiffs. While the facts as reflected in defendants’ deposition and affidavits seem to make it more probable that defendants will be successful in their defense of this action, we cannot say plaintiffs will not be able to establish the essential elements necessary to their cause of action. As explained in Warden v. Southwest Louisiana Hospital Association, supra:

“ * * * The fact that a litigant is unlikely to prevail on the merits; that there is little or no likelihood of successful prosecution; or that a trial judge has grave doubt that a case can be proved by a preponderance of the evidence is not sufficient to sustain a motion for summary judgment. . . . The burden of proof at a hearing on a motion for summary judgment is upon those making the motion to prove that there is no genuine issue of fact. At the hearing in this case, it was not incumbent on plaintiffs to prove their case but merely to show that there was a disputed material fact. (Citations omitted)
* * * * * *
“ * * * While plaintiffs in the present litigation may have a difficult case, they are entitled to their day in court . . . .” Id. pp. 594, 595.

In summary, we feel defendants have neither established the cause of decedent’s death nor negated a causal connection between the death and decedent’s employment to the extent that there is an absence of any doubt as to a dispute concerning these material facts, and therefore defendants are not entitled to judgment as a matter of law. Summary judgment is not appropriate in this case.

For the foregoing reasons, we reverse the decision of the trial court and remand this case for further proceedings.

Reversed and remanded.

Costs below and here on the issue of summary judgment are assessed against defendants.

      . Plaintiffs brought the workmen’s compensation action in a separate proceeding. See McWhiney v. Travelers, 343 So.2d 740 (La. App., 2d Cir. 1977).

      . “Art. 967. Same; affidavits

      “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. . . . ” (emphasis added)

      . Decedent died on August 13, 1975, and the autopsy was performed shortly thereafter. At the date of the deposition, February 24, 1976, all of these tests had not yet been made. The affidavit on April 6, 1976 does not indicate whether these tests had yet been made or what the results might have been.


text:
    Hoyle T. McWHINEY, Individually and as Administrator of the Estates of his minor children, and as Curator, et ux., Plaintiffs-Appellants, v. TRAVELERS INSURANCE COMPANY et al., Defendants-Appellees.
    No. 13123.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.
    En Banc. Rehearing Denied March 21, 1977.

    Edwards, Stefanski & Barousse by Homer Ed Barousse, Jr., Crowley, for Hoyle T. McWhiney and Jennie Rambin McWhiney, plaintiffs-appellants.
    Booth, Lockard, Jack, Pleasant & LeSage by Henry A. Politz, Shreveport, for J. B. Stevens and Billy M. Rowell, defendants-appellees.
    Blanchard, Walker, O’Quin & Roberts by Joseph W. Milner, William Timothy Allen, III, Shreveport, for Braswell Industries, Inc., Travelers Ins. Co., Larry Dandridge, Morris J. Gulledge, John B. Howell, Byron Braswell, Jr., and Mary Leahy, defendants-appellees.
    Before PRICE, MARVIN and JONES, JJ.

       Bolin, J., took no part in en banc denial of rehearing.

   JONES, Judge.

Plaintiffs brought this action in workmen’s compensation against Braswell Industries, Inc., and its insurance carrier, Travelers Insurance Company. Defendants moved for a summary judgment, which was granted by the trial court. Plaintiffs appeal.

This case presents the same facts and issues as in McWhiney v. Travelers, 343 So.2d 736 (La.App., 2d Cir. 1977) rendered this date.

For the reasons therein expressed, we reverse the decision of the trial court and remand this case for further proceedings.

Costs below and here on the issue of summary judgment are assessed against defendant.