author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Jerry L. DAUZAT.
    No. 62057.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Rehearing Denied Dec. 14, 1978.

      Paul A. Bonin, Garrity, Levenson & Bo-nin, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Lindsay A. Larson, III, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant, charged by bill of information with simple burglary in violation of R.S. 14:62, was convicted, after a jury trial, of attempted simple burglary. Two weeks after the jury returned its verdict, the district attorney filed an information charging Dauzat as an habitual offender. After a hearing held in conformity with the procedure set forth in the habitual offender law, R.S. 15:529.1, defendant was adjudged a fourth offender and sentenced to the minimum term prescribed by the law, twenty years’ imprisonment. Upon this appeal he urges four assignments of error for a reversal of his conviction and sentence.

During the early morning hours of January 18, 1977, a resident of a second story dwelling in the 5500 block of Magazine Street in New Orleans, attracted by the sound of glass breaking, observed a man in a long black coat, whom he described as short, Caucasian and about forty years old, standing in front of a broken glass entrance door to a cleaning establishment on the other side of the street. The witness saw the man walk away briefly, then return, look around and enter the business place. For a period of about five minutes, the onlooker (who had called the police on seeing the man enter the cleaners) watched as the burglar rummaged through the establishment. He saw the man exit the store and noted that as the burglar stood outside a car pulled up and its occupant emerged to speak to the burglar. The occupant of the car was a plainclothes police officer, who was told by the burglar that the break-in was accomplished by two black youths. Believing the burglar’s story, the plainclothes officer departed in search of the youths. Another officer arrived at the crime scene and from the witness learned of the ruse that the burglar had successfully perpetrated. Armed with information from the witness, including a somewhat more detailed description of the burglar than he had theretofore possessed, the second officer commenced a search for the perpetrator. He saw defendant hiding behind a car at a location only one block away from the scene of the burglary, arrested him and returned him to the scene of the robbery where both the plainclothes officer and the witness to the burglary identified the arrestee. This prosecution ensued.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error defendant complains that the one-on-one in-field identification was unnecessarily suggestive, so that introduction of evidence relating to that identification was reversible error. Defendant argues in brief that one-on-one identifications are prohibited, except in exceptional cases recognized in federal and state jurisprudence such as when the witness is ill and may be the only person who can exonerate the accused or when the witness is unable to come to court or jail. Nevertheless, the defense brief recognizes that although one-on-one, on-scene identifications are viewed as suggestive, courts are required to view the totality of the circumstances in determining whether exclusion of the identification is required under the rule enunciated in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The defense urges that the identifications at the scene were suggestive because Dauzat was the only person in the back of the police unit when identifications were sought by the arresting officer from the witness and the plainclothes officer. The brief then highlights alleged uncertainties and ambiguities in the identification of Dauzat reflected in the testimony of the witness and the plainclothes officer. The defense argues that these factors, considered together, establish that the pre-trial in-field identification should have been suppressed.

Where, as in the instant case, a one-on-one in-field identification is closely associated in time with the commission of the crime and where the suspect is returned to the location of the crime-for immediate identification, such identifications have been found permissible. State v. Kelly, 362 So.2d 1071 (La.1978). One reason for declining to disapprove such procedures is that they promote fairness by assuring reliability and the prompt release of innocent suspects. State v. Dunbar, 356 So.2d 956 (La.1978). Applying the totality of the circumstances rule set forth in Neil v. Biggers, supra, (more recently asserted by the United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 [1977]) we conclude that the record establishes the reliability of the in-field identifications. The testimony fails to establish that there was any suggestion to the witness that the person in custody was the perpetrator, and the plainclothes officer stated that although his identification came later in time than that of the witness, he did not know at the time of his identification of Dauzat that the witness had previously identified him. The asserted ambiguities and uncertainties upon which defendant relies so heavily in attacking the in-field identification, when viewed in the context of the entire testimony of the witness and the officer, fall short of establishing unreliability in the identifications. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

At the conclusion of the State’s case in chief, defendant Dauzat took the stand to testify on his own behalf. During his testimony, he denied that he had a fresh cut on his hand at the time he was arrested and maintained at some points during his testimony that he did not own a black trench coat about which the state repeatedly inquired. To rebut Dauzat’s testimony the state sought to introduce the black coat Dauzat was wearing at the time of his arrest, which apparently was blood stained. Until the time that the garment was retrieved by an Orleans Parish Deputy assigned to duty at the Parish Prison, it was stored in a box issued to Dauzat and kept in his cell, along with the prisoner’s personal property (toilet articles, mail and the like). When at trial it became apparent to the defense that the state planned to introduce the coat, its suppression was sought on the grounds that the seizure was unlawfully effected, without a warrant, without consent, and not incident to a lawful arrest. Defense sought a hearing on the motion. The trial judge refused to afford defendant a hearing and simply ruled that no warrant is needed for seizure of a prisoner’s belongings from his jail cell.

While the jurisprudence seems to establish that prisoners are not totally deprived of Fourth Amendment rights by virtue of their incarceration, the existence and extent of such rights appear to depend in large measure on the prisoner’s expectation of privacy and the reasonable nature of that expectation. Numerous eases upholding a prisoner’s Fourth Amendment rights (as well as cases with a contrary holding) are collected in the annotation on unreasonable searches of, and seizures from, prisoners appearing at 32 A.L.R.Fed. 601 (1977). In none of these cited cases, however, has it ever been found that a prisoner (including a pre-trial detainee) has Fourth Amendment rights to belongings within his jail cell which purport to be evidence.

We conclude that the trial judge was correct when he held that seizure of the defendant’s coat (evidence in this case) from a box within his jail cell did not require a warrant and that defendant was thus not entitled to a hearing on his motion to suppress.

ASSIGNMENT OF ERROR NO. 5

Defendant contends that the trial court’s refusal to give a special requested charge on the issue of identification, crucial in this trial, was error warranting reversal of his conviction and sentence. We have reviewed the content of the requested special charge and the general charge given by the court to the jury. Our examination reveals that the general charge includes the special requested charge, obviating the need for giving the charge sought. C.Cr.P. art. 807. This assignment is without merit.

ASSIGNMENT OF ERROR NO. 7

Defendant filed a motion for new trial, the thrust of which was a claim that apart from the identification evidence and the tangible evidence in the form of the black coat, illegally introduced at trial, there was no evidence to support the, conviction. Dauzat conceded in brief that the merit of this assignment depends entirely on the Court’s disposition of Assignments Nos. 1 and 3. Having determined that the other assignments relied upon do not warrant reversal, we find that this assignment is like-wisé without merit.

Decree

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

AFFIRMED.

      . The record contains nine assignments of error. However, only the four which are briefed are considered upon this appeal.

      . The witness to the burglary testified at trial that his inability to positively state at a preliminary hearing that defendant was the person he identified as the burglar on the night of the crime stemmed from the fact that his identification of the defendant was a general appearance identification, not a face identification. Yet, his initial trial identification of Dauzat was unqualified, unequivocal. After cross-examination during which the defense highlighted the preliminary hearing statement that the witness believed Dauzat to be the man he identified on January 18, 1977, but was not positively certain (only “pretty sure”), the witness persisted in his identification by stating that although he was unable to say that he was absolutely certain that Dauzat was the man he had seen, it was his belief that Dauzat was the man.
      The plainclothes officer’s perceptions are questioned on the basis of cross-examination relative to the officer’s inability to state whether the man to whom he spoke upon first arriving at the burglary scene was Negro or Caucasian. This inquiry stemmed from testimony on direct examination to the effect that the person first encountered at the scene was dark complexioned but that the officer could not discern whether the man was actually white or a light complexioned “colored person.”


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Dudley Patrick BEAVERS.
    No. 62104.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Rehearings Denied Dec. 14, 1978.
    Murphy W. Bell, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

In this case we consider whether special verdicts should be submitted to the jury in a criminal trial.

Dudley Patrick Beavers was charged in a single-count bill of information with “rioting” in violation of La.R.S. 14:329.1 — 329.7. Defendant was tried by a jury of twelve persons on October 31-November 11, 1977. The jury returned three separate guilty verdicts: guilty of participating in a riot; guilty of participating in a riot in which the death of any person occurs; and guilty of the wrongful use of public property in which the death of any person occurs. The trial judge ordered all three verdicts recorded, and, on February 14, 1978, the defendant was sentenced to twenty years at hard labor.

Defendant appealed relying on eight assignments of error for a reversal of his conviction and sentence. Because one assignment has reversible merit the others are pretermitted.

This is one of the so-called “Black Muslim cases” which have been reviewed by this Court. See, State v. Bell, 315 So.2d 307 (La.1975), 346 So.2d 1090 (La.1977); State v. Williams, 354 So.2d 562 (La.1978). These cases arose out of a riot which erupted in Baton Rouge on January 10, 1972. On that day members of the Black Muslim sect parked several vehicles across an intersection of public streets. When police attempted to remove the vehicles and disperse the crowd, violence broke out, .resulting in the serious bodily injury of a reporter and the deaths of two police officers and three black demonstrators.

Defendant admitted at trial that he was a member of the Black Muslim group present at the scene of the public disorder. Defendant testified, however, that he left immediately when the officers ordered the group to disperse. He specifically denied being present when the shooting began. Defendant fled from Baton Rouge after the incident and was not apprehended until late in 1975.

The reversible error occurred when the trial judge refused to sustain the defendant’s motion in arrest of judgment. The motion was based on the ground that the verdicts were not responsive to the indictment or were otherwise so defective they could not form the basis of a valid judgment. La.C.Cr.P. art. 859(5). To understand why the verdicts were defective it is necessary to know some of the events which occurred during the trial.

Defendant was charged under Act 176 of 1969, extant as La.R.S. 14:329.1-329.8, which proscribes five separate crimes: inciting to riot, La.R.S. 14:329.2; participating in a riot, La.R.S. 14:329.7(A); failure to comply with a lawful command to disperse, La.R.S. 14:329.3; wrongful use of public property, La.R.S. 14:329.4; and interference with the educational process, La.R.S. 14:329.5. All of these acts are punishable by one of three penalties, which vary in severity with the consequences of the crime, as provided in La.R.S. 14:329.7:

“A. Whoever willfully is the offender or participates in a riot, or is guilty of inciting a riot, or who fails to comply with a lawful command to disperse, or who is guilty of wrongful use of public property, or violates any other provision hereof shall be fined not more than five hundred dollars or be imprisoned not more than six months, or both.
“B. Where as a result of any willful violation of the provisions of R.S. 14:329.1 to 14:329.8 there is any serious bodily injury or any property damage in excess of five thousand dollars, such offender shall be imprisoned at hard labor for not more than five years.
“C. Where, as a result of any willful violation of the provisions of R.S. 14:329.1 to 14:329.8, the death of any person occurs, such offender shall be imprisoned at hard labor for not to exceed twenty-one years.”

The bill of information in the instant case, in pertinent part, charged the defendant with the single offense of “rioting” as follows:

“ * * * DUDLEY PATRICK BEAVERS on or about the tenth (10) day of January, 1972, committed the offense(s) of RIOTING (by inciting, participating & wrongful use of public property violating Louisiana Revised Statutes La.R.S. 14:329.1, 329.2, 329.4(1) & (2) and 329.7, in that you incited a riot which resulted in the deaths of Ralph Hancock and Dwayne Wilder, specifically against the provisions of La.R.S. 14:329.1, La.R.S. 14:329.2, La. R.S. 14:329.7 and that on the above date set forth, you feloniously violated Louisiana Act Number 176 of 1969 in that you participated in the aforementioned riot which resulted in the deaths of Ralph Hancock and Dewayne Wilder against the provisions of La.R.S. 14:329.1, La.R.S. 14:329.7. More specifically, the above violations occurred in that you willfully endeavored and procured others present to create and participate in a public disturbance involving others acting together and in concert by urging and procuring them to take over the city of Baton Rouge by blocking the 1300 block of North Boulevard with parked vehicles and a line of human beings, involving you and others, across North Boulevard, which was done without a permit, thereby creating a confrontation with police authorities and physically attacking said authorities when they attempted to remove said obstruction causing a public disturbance from which the deaths of Ralph Hancock and Dwayne Wilder resulted, all in violation of the aforementioned provisions of law and additionally specifically in violation of La.R.S. 14:329.-4(1) & (2). * * *”

The bill of information charging defendant with “rioting” was read to the jury. The jury was repeatedly instructed by the trial judge that the defendant was on trial for but one crime:

"* * *
“Rioting under Louisiana law is a crime. The cited act, provides that violation thereof may occur in several ways:
"* * *
“I have broken it down into three categories, and I tell you ladies and gentlemen this. This is not to mislead you. There is only one charge.
"* * *
“[Jury foreman]: In other words we have three sheets of paper.
“The Court: That’s right and you must address — he’s charged in three ways and I did it — I did not want you to think that he was charged with three crimes because he’s charged with committing a crime, i. e., rioting, in three separate manners. But you must consider all of—
"* * *
“[Defense attorney]: No, what I was getting at, according to what the foreman was saying and the way I read it is — whether or not the — based—they only required to bring back one verdict?
“The Court: That’s correct—
“ — I hope I haven’t confused you any more and believe me, I didn’t intend to. We realize we throw quite a bit at you and there’s only one crime which can be committed under the allegation in three ways.”

The theory that the defendant was prosecuted for one crime, i. e., rioting, which could be committed by doing any one of several acts was further reinforced in the jurors’ minds by similar statements in the prosecutor’s closing argument.

The written lists of verdicts given to the jury, however, did not correspond to the single crime theory. Although the bill of information contained just one count, and although the trial judge and prosecuting attorney conducted the entire trial as though the defendant were being charged with a single offense, the trial judge gave the jury three separate lists of responsive verdicts. Moreover, these lists did not correspond to the three separate criminal acts referred to in the information, i. e., participating in a riot in which the death of any person occurs, inciting to riot in which the death of any person occurs, and wrongful use of property in which the death of any person occurs. Instead, the verdicts were listed under the following heads: guilty of participating or inciting a riot; guilty of participating or inciting a riot in which the death of any person occurred; and guilty of wrongful use of public property in which the death of any person occurred. In all, the trial judge listed thirteen responsive verdicts under the three headings and delivered them to the jury on three separate sheets of paper:

First sheet of paper:
1. Guilty or [sic] participating or inciting a riot;
2. Guilty of an attempt to participate or incite a riot;
3. Not Guilty.
Second sheet of paper:
1. Guilty of participating or inciting a riot in which the death of any person occurred;
2. Guilty of an attempt to participate or to incite a riot in which the death of any person occurred;
3. Guilty of participating or inciting a riot in which serious bodily injury occurred;
4. Guilty of an attempt to participate or incite a riot in which serious bodily injury occurred;
5. Not Guilty.
Third sheet of paper:
1. Guilty of wrongful use of public property in which the death of any person occurred;
2. Guilty of an attempt to wrongfully use public property in which the death of any person occurred;
3. Guilty of wrongful use of public property in which serious bodily injury occurred;
4. Guilty of an attempt to wrongfully use public property in which serious bodily injury occurred.
5. Not Guilty.

The defendant did not object to the lists of verdicts.

The jurors perceived the evident inconsistency between the court’s instructions stressing the single crime theory of prosecution and the arrangement of the written verdicts into three separate crime categories. At one point they emerged from their deliberations for instructions as to whether they were required to reach a separate decision in all three categories. Although the judge reiterated that the defendant was charged with a single offense of rioting, he emphatically insisted that the jury return three verdicts, one to be selected from each of three written lists. The colloquy between the judge and the jury foreman was as follows:

“[Jury foreman]: We found ourselves in agreement on one point.
“THE COURT: But, did you address all three manners in which he is alleged to have violated the act? You must address all three manners. Remember, he is charged with violating an act by participating — you must decide that. You must decide did he violate the act by inciting. You must decide did he violate the act by wrongful use of public property-
“[Jury foreman]: All three or any one of them?
“THE COURT: All three. You must address all three of them in your decisional process.
“[Jury foreman]: Should we approach one — the first one you named — participating — should we address that one and agree, would it be necessary then to address the other two as to agree or disagree or—
“THE COURT: Yes, I follow your question. Yes.
“[Jury foreman]: In other words we have three sheets of paper.
“THE COURT: That’s right and you must address — he’s charged in three ways and I did it — I did not want you to think that he was charged with three crimes because he’s charged with committing a crime i. e. rioting, in three separate manners. But, you must consider all of—
“[Jury foreman]: Should we all agree on one and not the other two or two and not the other one — -then, we must do it that way. We can’t just give you one page with a verdict on it?
“THE COURT: That is correct. You must make that decision.
“[Jury foreman]: The other two — we have to find him guilty or not guilty on the other ones as well?
“THE COURT: Right.”

After further deliberations, the jury returned three separate verdicts: guilty of participating in a riot (a misdemeanor carrying a penalty of up to a $500 fine or six months imprisonment); guilty of participating in a riot in which the death of any person occurs (a felony carrying a penalty of up to twenty-one years imprisonment at hard labor); and guilty of wrongful use of public property in which the death of any person occurs (a felony carrying a penalty of up to twenty-one years imprisonment at hard labor). The jury also returned two verdicts of acquittal: not guilty of inciting to riot; and not guilty of inciting to riot in which the death of any person occurs. The trial judge received and recorded all three of the guilty verdicts.

We set to one side the question of whether it was proper to try the defendant upon a single charge of rioting which could be committed by one of several criminal acts. Since the defendant did not object on this ground to the form of the bill of information or the jury’s instructions, we assume for purposes of our review that the single crime hypothesis is correct. Furthermore, it would be grossly unfair, after the defendant has been deprived of his right to sever multiple offenses and the opportunity to assert a pretrial plea of double jeopardy, to uphold an otherwise invalid conviction by permitting the state on appeal to exchange its trial court position for the more stable footing of a pluralistic prosecution theory.

Assuming, then, that the defendant correctly was accused and tried on the proposition that “rioting” is a single crime which may be committed in several ways, it is readily apparent that the verdicts received and recorded by the trial judge were improper. By his instructions and arrangements of the verdicts the trial judge inadvertently prevented the jury from clearly expressing an agreement on one general verdict in the case. Instead, the jury was forced to return three special verdicts or answers to special interrogatories without reaching the ultimate decision within its prerogative. The trial judge unwittingly usurped the role of the jury by making the final decision of which general verdict should be returned. These improprieties are of both statutory and constitutional dimensions.

The Code of Criminal Procedure provides that a verdict must clearly convey both the fact that the jury reached an agreement and the exact information as to the particular verdict upon which the jury agreed. La.C.Cr.P. art. 810. If the verdict is incorrect in form or is not responsive to the indictment the court must refuse to receive it and must remand the jury with the necessary oral information. La.C.Cr.P. art. 813. This Court has held that it is the judge’s duty to look after the form and substance of the verdict so as to prevent a doubtful or insufficient finding from passing into the record of the court. State v. Owens, 193 La. 505, 190 So. 660 (1939).

There is no authority in our law for special verdicts in criminal cases. The Code of Criminal Procedure provides basically for only three kinds of general verdicts which may be rendered in response to the indictment or bill of information: guilty as charged; guilty of a lesser and included grade of the offense charged; and not guilty. La.C.Cr.P. arts. 814, 815.

Special verdicts are not favored in criminal cases because of their restrictive effects upon the jury. Special verdicts impair or wholly abrogate the defendant’s right to a general verdict, which is an important element of the constitutional right to a jury trial. See, United States v. Gernie, 252 F.2d 664 (2d Cir.), cert. denied, 356 U.S. 968, 78 S.Ct. 1006, 2 L.Ed.2d 1073 (1958). The danger inherent in the use of special verdicts in criminal trials is that a reluctant juror might be coerced into reaching a pre-determined result. Although special verdicts may guide a jury toward a logical result, there is grave danger that special verdicts in criminal cases would prevent the jury from performing its most important, uniquely human function, of providing the defendant with a safeguard against arbitrary, unchecked governmental power through community participation in the determination of guilt or innocence. See, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); In re Dino, 359 So.2d 586, 602 (La.1978). In United States v. Spock, 416 F.2d 165 (1st Cir. 1969), the Court of Appeal described how a juror might be led to a different result by use of special verdicts than he would have reached unfettered:

“ * * * There is no easier way to reach, and perhaps force, a verdict of guilty than to approach it step by step. A juror, wishing to acquit, may be formally catechized. By a progression of questions each of which seems to require an answer unfavorable to the defendant, a reluctant juror may be led to vote for a conviction which, in the large, he would have resisted. The result may be accomplished by a majority of the jury but the course has been initiated by the judge, and directed by him through the frame of the questions.
“It may be said that since the law should be logical and consistent, if the questions were proper in substance this would be a desirable rather than an undesirable result. We agree, however, with the distinction made by L. Hand, J., concurring in Skidmore v. Baltimore & O. Ry., 2 Cir., 1948, 167 F.2d 54, 70, cert. denied, 335 U.S. 816, 69 S.Ct. 34, 93 L.Ed. 371, when speaking in favor of special verdicts in civil cases.
“ T should like to subject a verdict, as narrowly as was practical, to a review which should make it in fact, what we very elaborately pretend that it should be: a decision based upon law. In criminal prosecutions there may be, and in my judgment there are, other considerations which intervene to make such an attempt undesirable.’
“Uppermost of these considerations is the principle that the jury, as the conscience of the community, must be permitted to look at more than logic. Indeed, this is the principle upon which we began our discussion. If it were otherwise there would be no more reason why a verdict should not be directed against a defendant in a criminal case than in a civil one. The constitutional guarantees of due process and trial by jury require that a criminal defendant be afforded the full protection of a jury unfettered, directly or indirectly. See Morris v. United States, 9 Cir., 1946, 156 F.2d 525.”

See also Heald v. Mullaney, 505 F.2d 1241 (1st Cir.), cert. denied, 420 U.S. 955, 95 S.Ct. 1339, 43 L.Ed.2d 432 (1974); United States v. James, 432 F.2d 303, 307-308 (5th Cir.) cert. denied, 403 U.S. 906, 91 S.Ct. 2214, 29 L.Ed.2d 682 (1970); Gray v. United States, 174 F.2d 919 (8th Cir.) cert. denied, 338 U.S. 848, 70 S.Ct. 90, 94 L.Ed. 519 (1949); United States v. McCracken, 488 F.2d 406, 418-19 (5th Cir. 1974).

Applying these principles to the instant case we conclude that by receiving and recording the verdicts the trial judge committed reversible error for several reasons. The verdicts were not responsive to the single charge of rioting, upon which the defendant was tried. The only responsive verdicts to such a charge would have been: guilty as charged of rioting where, as a result, the death of any person occurs; guilty of rioting where, as a result, serious bodily injury or over $5,000 in property damage occurs; guilty of rioting; guilty of attempted rioting; not guilty. Consequently, the verdicts were incorrect because they did not clearly indicate that the jury had agreed upon one of the responsive verdicts which could be rendered where the defendant is tried on a charge of rioting. Instead, the verdicts amounted to nothing more than special verdicts, leaving to the judge the selection of a general responsive verdict upon which to base the conviction and sentence.

The special verdicts set forth in the three written lists in this case were particularly pernicious because some of the lesser included misdemeanor verdicts were presented to the jury on a separate form, segregated from the felony verdicts of the same genus, and another was omitted altogether. The misdemeanor verdict of wrongful use of public property was omitted from the responsive verdicts lists entirely. The jury was not allowed to consider the misdemeanor offense of participating in a riot as a responsive verdict to the felony offense of participating in a riot in which the death of any person occurs. La.C.Cr.P. art. 815; State v. Douglas, 278 So.2d 485 (La.1973). Instead, the jury was required to consider the felony participating offense counterposed only by the alternative verdicts of not guilty and attempted felony participating. In criminal cases special verdicts themselves are inimical to the policies underlying the jury trial guarantee, but an arrangement of special verdicts which prevents the ready consideration of all the permissible verdicts responsive to the charged offense goes further and impinges even the defendant’s rights to fair trial and due process.

For the reasons assigned, the defendant’s conviction and sentence are reversed and the case is remanded to the district court for a new trial.

SANDERS, C. J., dissents.

      . It appears certain, however, that it was in fact incorrect to charge and try the defendant for the single, all-inclusive crime of “Rioting.” The legislature by Act 176 of 1968, extant as La.R.S. 14:329.1-329.8, set forth its intention to prohibit five distinct kinds of conduct, viz., inciting to riot, participating in a riot, failure to comply with a lawful command to disperse, wrongful use of public property, and interference with the educational process. A definition of “riot” is set forth in the act, and certain separate acts relating to a “riot” are prohibited, but the word “riot” is not used to denominate a crime. Furthermore, three of the offenses have separate common-law crime derivations, W. Clark & W. Marshall, A Treatise on the Law of Crimes 586-595 (7th ed. M. Barnes 1967); R. Perkins, Perkins on Criminal Law, 403-408 (2d ed. 1969), and the definitions of two others have no connection with the term “riot.” It is evident, therefore, that the legislature sought to proscribe in one act several different endemic American crimes of the late 1960’s. The aim of the legislation was not merely to facilitate the charging of one basic crime having divergent methodologies. Nor does the fact that the separate crimes have common penalties or the circumstance that some share a common definitional element militate in favor of a single crime hypothesis. For example, the separate crimes of aggravated rape La.R.S. 14:42, and simple rape, La.R.S. 14:43, stem from a single statutory definition, La.R.S. 14:41-41.1, and many criminal statutes make use of a shared penalty. See, e. g., La.R.S. 32:57; La.R.S. 40:966-970. Any doubt as to these conclusions must be resolved against extension of articles of the criminal code by analogy so as to create crimes not provided for therein. La.R.S. 14:3.

      . For the reasons discussed in the previous footnote, we do not believe that a separate crime of “rioting” exists. See also, State v. Williams, 354 So.2d 562 (La.1978); State v. Bell, 346 So.2d 1090 (La.1977). Such an error in the bill of information is clearly an error patent on the face of the record. La.C.Cr.P. art. 920(2); State v. Raby, 259 La. 909, 253 So.2d 370 (1971). However, because the information did make reference to the three individual crimes, we choose not to rest our decision solely on this somewhat technical basis.

      . La.C.Cr.P. art. 495.1.

      . The Fifth Amendment of the United States Constitution “protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). See also, Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); State v. Suire, 319 So.2d 347 (La.1975); State v. Didier, 262 La. 364, 263 So.2d 322 (1972); State v. Bonfanti, 262 La. 153, 262 So.2d 504 (1972). However, regardless of how the offenses are joined for trial, it is clear that the substantive guarantees against double jeopardy will not be affected.

      . La.C.Cr.P. art. 810 provides:
      “When a verdict has been agreed upon, the foreman shall write the verdict on the back of the list of responsive verdicts given to the jury and shall sign it. There shall be no formal requirement as to the language of the verdict except that it shall clearly convey the intention of the jury.

        “The foreman of the jury shall deliver the verdict to the judge in open court.”

      . Statement of Mr. Justice Black and Mr. Justice Douglas on the Rules of Civil Procedure amendments:
      “ * * * Such devices are used to impair or wholly take away the power of a jury to render a general verdict. One of the ancient, fundamental reasons for having general jury verdicts was to preserve the right of trial by jury as an indispensable part of a free government. Many of the most famous constitutional controversies in England revolved around litigants’ insistence, particularly in seditious libel cases, that a jury had the right to render a general verdict without being compelled to return a number of subsidiary findings to support its general verdict. Some English jurors had to go to jail because they insisted upon their right to render general verdicts over the repeated commands of tyrannical judges not to do so. * * * A scrutiny of the special verdict and written interrogatory cases in appellate courts will show the confusion that necessarily results from the employment of these devices and the ease with which judges can use them to take away the right to trial by jury.” D.C., 31 F.R.D. 618-19 (1963).


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

text:
    STATE of Louisiana v. Glenn K. CONSTANTINE.
    No. 62130.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Rehearing Denied Dec. 14, 1978.

      Clyde D. Merritt, 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., Robert F. Barnard, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Glenn K. Constantine was charged by bill of information with simple burglary in violation of La.R.S. 14:62. After trial by jury, defendant was found guilty as charged. After conviction, but prior to sentencing, the district attorney filed an information accusing defendant of a previous felony conviction pursuant to La.R.S. 15:529.1 (Habitual Offender Law). After hearing, the trial judge found defendant to be an habitual offender and sentenced him to serve eighteen years at hard labor with credit toward service of his sentence for time spent in actual custody prior to imposition of sentence. On appeal, defendant relies on three assignments of error for reversal of his conviction and sentence.

The assigned errors all relate to defendant’s contention that the trial judge erred in overruling his objections and motions for mistrial grounded on the claim that the state’s introduction of and reference to evidence of other crimes was inadmissible.

The record reflects the following facts. Police officers, conducting a surveillance of defendant and his brother, testified that defendant was observed approaching a parked Coca-Cola truck, carrying a red bolt cutter in his hand. One of the officers stated that defendant opened the passenger door of the truck (the truck’s safe was located on the passenger side of the vehicle) and reached inside with the bolt cutter. At this time, the driver of the truck came out of a nearby service station, noticed someone in his truck and began yelling. Defendant began to run but was apprehended by the police officers. Evidence was introduced that the door of the safe was stuck and could not be opened and that no money was taken out of the safe.

Defendant, testifying on his own behalf, maintained on direct examination that, although he had been in the general vicinity of the Coca-Cola truck on the day in question, he never approached the truck. Defendant stated that he was not carrying the bolt cutter when arrested; rather, the police officers had taken it from the floor of his automobile. Defendant further testified:

I was brought to Central Lockup and I was charged with armed robbery, fourteen counts of burglary, and one attempted auto burglary or whatever it is and all the other charges have been dropped except this one. They must have got the bolt cutters out of my car. I didn’t do anything.

Defendant denied having any knowledge of the other charges he claimed had been filed against him.

During cross-examination, the prosecu-trix asked defendant who told him that the other charges had been dropped. Defendant replied that a lawyer-investigator had informed him that he was only charged with one count of simple burglary and that the other charges had been dropped. The prosecutrix then proceeded to question defendant as to two envelopes (S — 7 and S-8), containing money and with the name “Coca-Cola” written on them, that had been recovered by police officers from defendant’s house. One envelope contained $45.06; the other, packets of change. Defendant’s objection on ground of relevancy was overruled by the trial judge. Defendant denied any knowledge of the envelopes. He stated that his brother had, at one time, worked for the Coca-Cola Company. When the state attempted to introduce the two envelopes in evidence, defendant again objected on the ground of relevancy. The trial judge overruled the objection.

On rebuttal, the state, over defense objection, offered the testimony of one of the police officers who had searched defendant’s house and recovered the envelopes. The officer testified that the envelopes were found in a bedroom in defendant’s house. When found, the envelopes contained a sum of money in currency and packets of change with the words “Coca-Cola Company” written on them. At this point, the state again attempted to introduce the envelopes in evidence. Defendant again objected on the ground of relevancy. The objection was overruled by the trial judge, and the envelopes were received in evidence and displayed to the jury. After the officer’s testimony, outside the presence of the jury, defendant moved for a mistrial on the basis that the testimony and envelopes introduced by the state constituted inadmissible evidence of other crimes. Defendant’s motion was denied by the trial judge.

During the state’s closing argument in rebuttal, the prosecutrix made the following statement:

We can’t tell you someone’s been arrested for other crimes . . . ; It doesn’t prove they are guilty of this crime he is on trial for today, but it does show you one thing, from Mr. Constantine’s mouth came the fact that he had been arrested for all of these other charges, fourteen other Coca-Cola burglaries, that he had nothing to do with and yet I would say to you, ladies and gentlemen, what is all that money from Coca-Cola doing in his house in Coca-Cola bags?

Defendant again moved for a mistrial, arguing that the prosecutrix’ remarks were impermissible references to another crime committed or alleged to have been committed by defendant as to which evidence was not admissible. The trial judge denied the motion, admonishing the jury to disregard any reference that there were other charges pending against defendant and to judge the case based solely on the evidence as to the one charge of simple burglary. Following the trial judge’s admonition, defendant reurged his motion for a mistrial which was again denied by the trial judge.

The sole issue presented for our determination is whether the testimony elicited and evidence introduced by the state in cross-examination and rebuttal, and referred to by the prosecutrix in closing argument, was inadmissible evidence of other crimes.

When a witness has been intentionally sworn and has testified to any single fact in his examination in chief, he may be cross-examined upon the whole case. La. R.S. 15:280. Therefore, in Louisiana, the scope of cross-examination is not limited to matters covered on direct examination. State v. Weathers, 320 So.2d 895 (La.1975).

The prosecution also has the right to rebut the evidence adduced by the defendant. La.R.S. 15:282. In State v. Monroe, 205 La. 285, 17 So.2d 331 (1944), this court defined the permissible scope of rebuttal evidence: “Rebutting evidence is that which is offered to explain, repel, counteract or disprove facts given in evidence by the adverse party.” See also State v. Hatter, 338 So.2d 100 (La.1976).

The general rules of evidence also have application to determine the proper scope of cross-examination and rebuttal testimony. The evidence must be relevant to the material issue. La.R.S. 15:435. La.R.S. 15:441 defines relevant evidence:

Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.
Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.

The relevancy of proffered evidence thus depends on whether it tends to prove or disprove a material fact at issue. State v. Passman, 345 So.2d 874 (La.1977). Nothing may be given in evidence which does not tend to prove or disprove a matter in issue. State v. Moore, 278 So.2d 781 (La.1973) (on rehearing). Matters which are, however, logically relevant to issues before the jury should not be excluded merely because they show the accused has committed other offenses. State v. Herman, 358 So.2d 1282 (La.1978); State v. Moore, supra.

In the instant case, the “matter in issue” to which the evidence introduced by the state was offered was the disposition of the charge of armed robbery, the fourteen counts of burglary, and the one count of attempted “auto burglary.” Because defendant chose to testify in his own defense and “opened the door” to this line of inquiry, the state had the right to question him concerning the disposition of these other charges during cross-examination. Additionally, the state, in rebuttal, had the right to offer evidence which would tend to explain, repel, counteract or disprove facts given in evidence by defendant. State v. Hatter, supra.

However, the evidence introduced by the state exceeded the permissible scope of cross-examination or rebuttal evidence in that it was not relevant to the issue raised by defendant during his testimony on direct examination. The fact that two envelopes with the name “Coca-Cola” written on them and containing a sum of money were found in defendant’s home is in no way logically relevant to the issue of whether the other charges had or had not been dropped. Such evidence did not tend to prove or disprove any material fact relating to the disposition of the other criminal charges against defendant. Nor did the evidence explain, repel, counteract or disprove the disposition of these other criminal charges against defendant. Hence, the evidence was irrelevant for this purpose and therefore inadmissible. Moreover, the evidence introduced by the state and referred to by the prosecutrix in closing argument clearly related to other crimes committed or alleged to have been committed by defendant. The state made no showing that the evidence of other crimes were admissible pursuant to La.R.S. 15:445 and 446 and this court’s interpretation of these statutes (see State v. Mitchell, 356 So.2d 974 (La.1978)) or as part of the res gestae. La.R.S. 15:447 and 448.

La.Code Crim.P. art. 770(2) makes a mistrial mandatory when a remark or comment made within the hearing of the jury by the district attorney during the trial or in argument refers directly or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. Accordingly, as we find that the evidence introduced by the state and referred to by the prosecutrix in closing argument constituted inadmissible evidence of other crimes, the trial judge erred in denying defendant’s motions for a mistrial.

DECREE

For the reasons assigned, the conviction and sentence are reversed and set aside and the case is remanded to the district court for a new trial in accordance with law.

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

SANDERS, Chief Justice

(dissenting).

In my opinion, the defense opened the door to rebuttal testimony concerning the other crimes. On direct examination, the defendant testified that, in addition to the burglary of Coca Cola truck 627, for which he was on trial, he had been “charged with armed robbery, fourteen counts of burglary, and one attempted auto burglary.” He testified that the other charges had been dropped and that “I didn’t have no knowledge of “the other fourteen burglaries.” [Tr. 41-42.]

Since it was the defendant, himself, who first exposed the subject to the jury, I would uphold the conviction.

For the reasons assigned, I respectfully dissent.

SUMMERS, Justice

(dissenting).

Defendant testified that, in addition to the burglary of Coca-Cola truck 627, for which he was on trial, he had been “charged with armed robbery, fourteen counts of burglary, and one attempted burglary.” He then testified that the other charges had been dropped and that “I didn’t have no knowledge of the other fourteen burglaries.”

The State offered evidence that two envelopes with the name “Coca-Cola” written on them and containing a sum of money were found in defendant’s home. This Court holds that evidence “in no way logically relevant to the issue of whether the other charges had or had not been dropped.”

I cannot agree. Defendant’s effort to mitigate the effect of the other charges by stating they had been dropped was an effort to weaken the State’s case with the inference that defendant had been unjustly accused by this same prosecutor in other instances. Proving that defendant was in fact guilty of those burglaries was therefore a logical and relevant step in rebuttal to defendant’s effort to exculpate himself. Cross-examination and argument on that issue was also permissible.

I respectfully dissent.


author: CALOGERO, Justice. DENNIS, Justice,

text:
    Frank W. BRUNER, Jr. v. Mavis Smith BRUNER.
    No. 62147.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Rehearing Denied Dec. 14, 1978.

      Booth, Lockard, Jack, Pleasant & LeSage, H. F. Sockrider, Jr., Shreveport, for defendant-appellant.
    Francis M. Gowen, Jr., Shreveport, for plaintiff-respondent.
   CALOGERO, Justice.

We granted writs on application of the wife in this proceeding who complains of a Court of Appeal ruling that her pre-separation fault, determined in the separation proceedings, bars her receipt of post-divorce alimony, notwithstanding that divorce was granted on the basis of the husband’s post-separation adultery. By a second assignment of error the wife also contends that both lower courts erred in refusing to admit evidence by which she sought to prove that her pre-separation fault, habitual intemperance, was not really fault at all, but rather a medical condition caused by alcoholism and menopause.

WIFE’S ENTITLEMENT TO PERMANENT ALIMONY

Louisiana Civil Code article 160 as amended in 1964 provides as follows:

“Art. 160. When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one-third of his income when:
1. The wife obtains a divorce;
2. The husband obtains a divorce on the ground that he and his wife have been living separate and apart, or on the ground that there has been no reconciliation between the spouses after a judgment of separation from bed and board, for a specified period of time; or
3. The husband obtained a valid divorce from his wife in a court of another state or country which has no jurisdiction over her person.
This alimony shall be revoked if it becomes unnecessary, and terminates if the wife remarries.”

A literal application of the article will bar this wife’s receipt of post-divorce alimony, for as the First Circuit Court of Appeal noted in Bennett v. Bennett, 349 So.2d 909 (La.App. 1st Cir. 1977) the language of Article 160 is explicit and the requirement that the wife be free from fault is “without limitation to the divorce proceedings only . . .."

Nonetheless, the wife contends that she is entitled to post-divorce alimony when she is free from post-separation fault and when she obtains the subsequent divorce based on the husband’s post-separation fault, particularly, as in this case, the husband’s post-separation adultery. She relies primarily on certain language in Fulmer v. Fulmer, 301 So.2d 622 (La.1974) in which a husband obtained a divorce under R.S. 9:302 based on the lapse of one year and sixty days (without reconciliation) from a separation judgment in favor of the wife because of the husband’s pre-separation fault. We concluded in Fulmer that the determination of fault in a separation proceeding bars relitigation of that issue for the purpose of deciding whether the wife is entitled to alimony under Article 160.

The language of Fulmer upon which relator relies is as follows:

“Thus, where a judicial separation is decreed as caused by the fault of one spouse or the other, such fault as judicially determined to be the cause of the separation is normally determinative of the issue of whether the husband or the wife is or is not at fault, for purposes of deciding whether the wife is entitled to alimony under Article 160. Such a conclusion is, of course, not applicable if the divorce is sought for post-separation fault, such as adultery; for the sole effect of the separation judgment is a conclusive adjudication as to which spouse’s pre-separation fault primarily caused the separation.” At 629. (Emphasis provided)

Relator interprets this language to mean that the determination that a wife has been at fault pre-separation deprives her of the right to post-divorce alimony when a divorce is later granted on the basis of non-reconciliation, but not when a divorce is later granted on the basis of the husband’s post-separation fault, such as the proven adultery in this case. Although, as- the respondent contends, the language in Fulmer is subject to more than one interpretation, we find that it does lend some support to the wife’s argument. Nonetheless as the Court of Appeal in this case noted, the discussion of the issue is merely dicta, for it was not central to the holding in Fulmer that a wife’s pre-separation fault determined in the separation proceedings is not subject to relitigation.

We proceed therefore to consider the res nova issue with which we are here presented.

The jurisprudence of Louisiana has consistently held that a wife cannot obtain permanent alimony if she has been at fault in causing separation or divorce. In Adler v. Adler, 239 So.2d 494 (La.App. 4th Cir. 1970), it was stated:

“To constitute fault within the meaning of Article 160, the wife’s misconduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation rather than a justifiable or natural response to initial fault on the part of the husband. Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702; Kendrick v. Kendrick [236 La. 34, 106 So.2d 707], supra; Davieson v. Trapp, 223 La. 776, 66 So.2d 804; Breffeilh v. Breffeilh, 221 La. 843, 60 So.2d 457; Felger v. Doty, 217 La. 365, 46 So.2d 300; Hawthorne v. Hawthorne, 214 La. 905, 39 So.2d 338; Chapman v. Chapman [La.App., 130 So.2d 811], supra; Davidson v. Jenkins, La.App. 216 So.2d 682; Smith v. Smith, La.App., 216 So.2d 391; Reynolds v. Reynolds, La.App., 228 So.2d 182. And the wife bears the burden of proving with reasonable certainty both the fact that she was free from fault and the fact that she has not sufficient means for her support. Vicknair v. Vicknair, supra; Richards v. Garth, 223 La. 117, 65 So.2d 109; Hawthorne v. Hawthorne, supra; Davidson v. Jenkins, supra; Gradney v. Gradney, La.App., 191 So.2d 161; Calloway v. Calloway, La.App., 139 So.2d 55; Chapman v. Chapman, supra; Primus v. Primus, La.App., 129 So.2d 925; Lyles v. Lyles, La.App., 126 So.2d 859.” At 496.

In Smith v. Smith, 216 So.2d 391 (La.App. 3rd Cir. 1968), the Third Circuit Court of Appeal was faced with a situation in which a wife sought an absolute divorce on the grounds of adultery without first obtaining a judicial separation. The trial court awarded the wife a divorce and alimony without allowing the husband to introduce evidence of the wife’s fault in an attempt to defeat her claim for alimony. On the husband’s appeal, the Smith court remanded the case to allow the husband to introduce evidence of the wife’s cruelty or other fault and specifically stated that under Article 160 her fault would defeat her claim for post-divorce alimony even though the divorce was based on the husband’s adultery. That court stated as follows:

“We see nothing in our construction of Article 160 which is absurd or which is inconsistent with the traditional principle of our law that only the wife who has not been at fault shall be entitled to demand alimony after divorce. This principle was finally vindicated in Sachse v. Sachse, 150 So.2d 772 (La.App. 1 Cir. 1963) after the inconsistency of some applications of the pre-1964 Article 160 had been hinted at in McKnight v. Irving, 228 La. 1088, 85 So.2d 1 (1956), particularly in Justice Ma-caleb’s concurring opinion therein. These ideas were further developed in The Work of the Louisiana Supreme Court for the 1955-56 Term 17 La.L.Rev. 294, at pps. 308-309, where PROFESSOR ROBERT A. PASCAL discusses McKnight v. Irving. There can be no doubt that the purpose of the 1964 amendment to Article 160 was to follow the principle, enunciated in these authorities, that the wife at fault should not recover alimony, even though she obtains the divorce.
The definition of ‘fault’ as given in Felger v. Doty [217 La. 365, 46 So.2d 300 (1950)], supra, has been followed in Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702; Chapman v. Chapman, 130 So.2d 811 (La.App.) and Vinot v. Vinot, 239 La. 587, 119 So.2d 474.
The essence of this definition is that fault is conduct which constitutes grounds for separation or divorce, other than mere living separate and apart for a specified period of time. In the present case the husband has alleged cruel treatment, an attempt against his life and abandonment of the marital home without just cause, any of which, if proved, are grounds for separation from bed and board, LSA-C.C. Article 138.” At 393-94. (Emphasis provided)

The more recent case of Moon v. Moon, 345 So.2d 168 (La.App. 3rd Cir. 1977), also quite pertinent here, involved a situation which is the converse of the situation at bar. The wife who had obtained a judicial separation was innocent of pre-separation fault; however she was guilty of post-separation fault, adultery. The Third Circuit Court of Appeal denied the wife permanent alimony under Article 160 based upon the proposition that the wife must not only be free from pre-separation fault but also free from post-separation fault to qualify for permanent alimony. That court went on to state:

“In Smith, we made it clear that the wife’s fault may be urged as a defense to her claim for alimony even though the wife obtains the divorce. After discussing Article 160 (as amended by Act 1964, No. 48, Sec. 1), and the comments of the La.Law.Inst. with reference to Article 160, we held in Smith : ‘The wife at fault should not recover alimony even though she obtains the divorce.’ In Smith, the wife had obtained a divorce based on the husband’s adultery.
Our holding in this case does not contravene the considerations of judicial economy underlying the Fulmer decision. Fulmer was aimed at stopping re-litigation of pre-separation fault. It was not intended to prevent litigation of post-separation fault, where such litigation occurs in the course of the husband’s defense against the wife’s alimony claim. It would be incongruous, indeed, to hold that a judicial determination of the husband’s pre-separation is determinative of the issue of the wife’s post-separation fault.” At 172-73.

Also supportive of respondent’s position is the case of Richardson v. Richardson, 275 So.2d 845 (La.App. 4th Cir. 1973), in which Article 160 was interpreted as follows: “According to the Article and the comments following, it is clear that a wife is not entitled to alimony after divorce unless she has not been at fault in bringing about separation or divorce.’ At 846. (Emphasis provided)

The identical issue with which we are confronted was presented to the First Circuit in the case of Bennett v. Bennett, supra which arose after Fulmer. There, as here, the husband obtained a judicial separation from his wife based upon the wife’s pre-separation fault, habitual intemperance. After the judicial separation the wife obtained a divorce from her husband on the grounds of adultery. The Bennett court followed the rationale that the wife’s pre-separation fault disqualified her from alimony under Article 160 although her husband was guilty of serious po§t-separation fault, adultery. The Bennett court denied post-divorce alimony on the premise that the wife was guilty of pre-separation fault which had been judicially determined in the separation proceedings. In denying permanent alimony the Bennett court stated:

“However, the initial words of Article 160 require that the wife ‘has not been at fault,’ without limitation to the divorce proceeding only, and we therefore hold that since plaintiff was found to be legally at fault in the separation, she may not now claim post-divorce alimony, despite the fault of her husband in the divorce." At 911. (Emphasis provided)

It is thus our conclusion that for the wife to be entitled to post-divorce alimony our law requires that she be free from fault both prior to the separation judgment and prior to the divorce.

Relator contends that the result reached in Bennett and which we reached here is an unconstitutional application of the language of Article 160 because it gives the husband favored treatment in the effect post-separation fault has on the payment of permanent alimony. She argues that “both husbands and wives who have obtained their legal separations and thereby have secured themselves either from or to post litem alimony may through their carelessness and moral turpitude forfeit those rights by committing adultery”. She further contends that under the standards of the Louisiana Constitution of 1974, unlawful sexual discrimination exists if the husband who is at fault in the separation may deprive the wife of her right to permanent alimony because of her post-separation adultery but the wife who is at fault in the separation may not have her right to alimony restored' by proving post-separation adultery of the husband.

There is no merit to this contention. The only disparate treatment of husbands and wives is in requiring husbands and not wives to pay post-divorce alimony under Article 160. Relator’s argument is based on a fallacious premise. She fails to realize that only husbands and not wives are obligated to pay alimony and that the husband’s fault is irrelevant to the wife’s right to alimony under Article 160. She erroneously assumes that an injustice results from requiring the wife to be free from fault both before the separation and before the divorce regardless of the husband’s pre-sep-aration or post-separation fault. The simple fact is that Article 160, without qualification or limitation, requires that a wife be free from fault. We therefore conclude that it is not unconstitutional to require a wife seeking alimony under Article 160 to be free from fault before both the separation and the divorce.

WIFE’S CONTENTION THAT HER PRE-SEPARATION “FAULT” WAS NOT “LEGAL FAULT” UNDER ARTICLE 160

Relator’s second assignment of error is that she was not at fault prior to the separation. She argues that she was not guilty of habitual intemperance, but rather was afflicted with medical problems, alcoholism and menopause.

The trial court and the Court of Appeal properly ruled that evidence of pre-separation fault would not be considered in the wife’s action for divorce. This issue had already been judicially determined in the contested separation proceedings. The wife had the opportunity to fully litigate this issue. Because she did not appeal the determination that she was at fault in the separation, the matter has been decided and she may not relitigate this issue.

Decree

For the foregoing reasons we conclude that the Court of Appeal correctly determined that relator-wife is not entitled to post-divorce alimony.

The judgment of the Court of Appeal in favor of respondent Frank W. Bruner, Jr. rejecting the demands of plaintiff Mavis Smith Bruner for permanent alimony is affirmed.

JUDGMENT OF THE COURT OF APPEAL AFFIRMED.

DIXON, J., concurs.

DENNIS, J., dissents and assigns reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

Our decision today banishes any remaining notion that the wife’s fault, if indeed the disease of alcoholism should be so considered, must actually cause the divorce to disqualify her for alimony. In this case the alcoholic wife who successfully reformed during the “period of deliberation,” which the law provides to promote reconciliations between judicial separation and divorce, was denied alimony after divorce despite the husband’s open acts of adultery during this period when the law supposes that both spouses will least consider resolving their differences. Although the majority opinion is faultless in its logical deduction from the literal words of the statute, I cannot believe that it comports with the spirit of the law or that the legislature intended for courts in the interest of judicial economy to shrink from the hard decision of whether a wife’s pre-separation fault actually caused the eventual divorce.

      . These two contentions were the only assignments of error set forth in relator’s application to this Court. In brief, however, she assigns as error and argues that the Court of Appeal erred in reducing her arrearage judgment for alimony pendente lite. Upon review of that' contention we find no merit in it. We are not called upon, in this case, to consider the husband’s complaint that his adultery was not proven, and ancillary issues, including those relating to determination of alimony pendente lite due by him because he did not seek writs in this Court from the Court of Appeal’s adverse determinations.

      . Over a dissent by the author of this opinion and concurrences of three other members, the Court in Loyacano v. Loyacano, 358 So.2d 304 (La.1978) on rehearing with less than a clear majority found no constitutional violation in this admittedly different treatment of men and women.


author: SANDERS, Chief Justice. MARCUS, Justice

text:
    CITY OF NEW ORLEANS and Department of Safety and Permits, Through its Director, Edward C. Kurtz v. The STATE of Louisiana, the Louisiana Department of Corrections Board of Corrections, and C. Paul Phelps, Director of Corrections.
    No. 62214.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Rehearing Denied Dec. 14, 1978.

      William J. Guste, Jr., Atty. Gen., Donald B. Ensenat, Asst. Atty. Gen., Ronald C. Davis, Staff Atty., New Orleans, for defendants-applicants.
    Donald A. Hoffman, City Atty., Thomas P. Anzelmo, Sr., Asst. City Atty., for plaintiffs-respondents.
   SANDERS, Chief Justice.

In this action to enforce its zoning ordinances, the City of New Orleans seeks to enjoin the State of Louisiana from using Jackson Barracks as a prison for the housing and/or treatment of convicted criminals, and from transferring convicted felons under the control of the Department of Corrections to the state-owned facility located at Jackson Barracks. The State filed peremptory exceptions raising prescription and its governmental function in the district court. The district court overruled defendants’ governmental exception; the Court of Appeal denied writs. Subsequently, the district court sustained the peremptory exception of prescription, and the City appealed. The Court of Appeal reversed the district court’s decision, which had sustained the exception of prescription, and remanded for a trial on the merits. 357 So.2d 81 (1978). On application of the State, we granted writs to review the proceedings below. La., 359 So.2d 208 (1978).

The Louisiana Department of Corrections has operated a work release program at Jackson Barracks, a state-owned facility in the City of New Orleans, since 1969. The program was established to provide transitional employment for state prisoners who would soon be eligible for parole. Under the municipal zoning ordinance, Jackson Barracks is located in an area zoned as Two-Family Residential. Although the municipal authorities were aware of the program, they brought no action to enforce the zoning ordinance.

In 1976, the Department of Corrections instituted a special medical unit for mentally disturbed prisoners at Jackson Barracks. The unit was designed to provide medical treatment for prisoners previously incarcerated at the State Penitentiary. The City of New Orleans then brought this suit to enforce its zoning ordinance.

Two threshold questions are presented for our review:

(1) Is the controversy moot because of legislative action?

(2) May a city, through its zoning ordinances, restrict the State’s use of state-owned property in performing a governmental function within a zoned area?

In its brief to this Court, the City asserts that this action is now moot because of the Legislature’s enactment of Act No. 700 of 1977 (LSA-R.S. 15:893.1). The statute prohibits the assignment of ten classes of prisoners to Jackson Barracks, thus restricting the use of the facility to low-risk prisoners. LSA-R.S. 15:893.1A(7) specifically prohibits the assignment to Jackson Barracks of “persons who are currently under and/or who have demonstrated a need for extensive and/or intensive medical treatment.”

The statute resolves the most pressing controversy, that of the Special Medical Unit, which served as a catalyst for the present suit. In its petition, however, the City seeks additional relief. The City prays that the defendants be enjoined from:

“ . . . converting, renovating, operating or using the property located at Jackson Barracks, New Orleans, Louisiana, as a prison for the housing and/or treatment of convicted criminals and from transferring convicted felons under the control of the Department of Corrections of the State of Louisiana to the state-owned facility located at Jackson Barracks, New Orleans, Louisiana. . .”
Further, the City prays for judgment: “ . . . decreeing the above described acts [use of Jackson Barracks as a prison] of the defendants to be injurious to plaintiffs and a violation of the Home Rule Power of the City of New Orleans and the Zoning Ordinance of the City of New Orleans. . . . ”

As we view the petition, the City seeks to broadly restrain the State from using its property as a correctional unit. Hence, we conclude that the action is still viable.

The question of whether the City can restrict the State’s governmental use of state-owned property by a zoning ordinance requires an analysis of the police power.

It is settled that: (1) zoning ordinances are the exercise of the State’s police power; and (2) police power denotes the State’s authority to impose restraints on private rights which are necessary for the general welfare of its citizens. City of Lake Charles v. Wallace, 247 La. 285, 170 So.2d 654 (1964); Louisiana Gas Service Company v. Louisiana Public Service Commission, 245 La. 1029, 162 So.2d 555 (1964); Michell v. Louisiana State Board of Optometry Examiners, 245 La. 1, 156 So.2d 457 (1963), appeal dismissed, 377 U.S. 128, 84 S.Ct. 1180, 12 L.Ed.2d 185; Plebst v. Barnwell Drilling Company, 243 La. 874, 148 So.2d 584 (1963); Civello v. City of New Orleans, 154 La. 271, 97 So. 440 (1923); Union Ice & Coal Company v. Town of Ruston, 135 La. 898, 66 So. 262 (1914); 82 Am.Jur.2d, Zoning and Planning, § 5, p. 390.

Article 6, Section 17 of the Louisiana Constitution (1974), grants zoning authority to local governmental subdivisions:

“Subject to uniform procedures established by law, a local governmental subdivision may (1) adopt regulations for land use, zoning, and historic preservation, which authority is declared to be a public purpose; (2) create commissions and districts to implement those regulations; (3) review decisions of any such commission; and (4) adopt standards for use, construction, demolition, and modification of areas and structures. Existing constitutional authority for historic preservation commissions is retained.”

This constitutional grant, however, does not abridge the State’s police power. Article 6, Section 9(B) of the Louisiana Constitution of 1974 provides that: “Notwithstanding any provision of this Article, the police power of the state shall never be abridge.” See Plebst v. Barnwell Drilling Company, supra; State v. City of New Orleans, 151 La. 24, 91 So. 533 (1922).

The constitutional provision has been implemented by state statute. LSA-R.S. 33:4722 grants to municipalities the power to adopt regulations for land use and zoning. LSA-R.S. 33:4728 authorizes the municipalities to seek injunctive relief for zoning violations.

Article 6, Section 9(B) of the Constitution removes any doubt as to the effect of the statutory and constitutional provisions: they do not abridge the police power of the State. That power necessarily remains dominant. The municipal police power is subordinate to that retained by the State as sovereign. Hence, municipal zoning ordinances cannot control the State’s use of its property in performing a governmental function. Our views comport not only with the clear provisions of the constitution, but also with the views voiced by the delegates to the Louisiana Constitutional Convention prior to adopting the provisions discussed herein. State of Louisiana Constitutional Convention of 1973, Verbatim Transcripts, Vol. 38, Proceedings, 117th day, pp. 15-17; Vol. 19, Proceedings, 58th day, pp. 41-42.

While the law and jurisprudence of other states is not controlling, our research shows that our conclusion harmonizes with the majority rule throughout the country. City of Medford v. Marinucci Bros., 344 Mass. 50, 181 N.E.2d 584 (1967); Board of Regents of the Universities and State College of Arizona v. City of Tempe, 88 Ariz. 299, 356 P.2d 399 (1960); Lauderdale County Board of Education v. Alexander, 269 Ala. 79, 110 So.2d 911 (1959); Nehrbass v. Incorporated Village of Lloyd Harbor, 2 N.Y.2d 190, 159 N.Y.S.2d 145, 140 N.E.2d 241 (1957); City of Charleston v. Southeastern Construction Co., 134 W.Va. 666, 64 S.E.2d 676 (1950); Peters v. N. Y. State Urban Development Corp., 41 A.D.2d 1008, 344 N.Y.S.2d 151 (1973); Paulus v. City of St. Louis, 446 S.W.2d 144 (St. Louis Court of App., Mo. 1972); AIA Mobile Home Park, Inc. v. Brevard County, 246 So.2d 126 (Fla.Dist.Ct. of App.1971): Annotation, 61 A.L.R.2d 970, § 1 et seq.; 82 Am.Jur.2d Zoning & Planning, §§ 150-151, pp. 633, 635; Rhyne, Municipal Law, § 12-8, pp. 306-307 (1957); McQuillin, Municipal Corporations, Zoning, § 25.15 (3rd Ed.Rev.1976), pp. 37-38; Miller, “Zoning and the State’s Primary Police Power to Use Its Property in Performing Governmental Functions,” 3 So.L.Rev. 133 (1977).

We hold that the State’s peremptory exception raising its governmental function is well-founded. In so holding, we do not reach the prescriptive issue,' reurged in this Court.

For the reasons assigned, the judgment of the district court is reversed; the peremptory exception is sustained; and the suit is dismissed at plaintiff’s costs.

MARCUS, J., dissents and assigns reasons.

SUMMERS, J., dissents.

MARCUS, Justice

(dissenting).

I agree that enactment of Act 700 of 1977 substantially, if not entirely, moots the issues raised in this case. In any event, however, I do not agree that the state of Louisiana and its many agencies are in all cases immune from municipal zoning regulations when exercising governmental functions, especially in view of the fact that in Louisiana the power of municipalities to zone is constitutionally, and not merely statutorily, derived. Mechanical application of an arbitrary rule in favor of the state could lead to inequitable results in some instances. Although the state has a legitimate interest in performing its public function, I do not believe that this interest will always justify violations of local zoning laws. Such violations infringe upon the interests and expectations of adjoining landowners in the continuous enforcement of the existing zoning ordinance. Moreover, they infringe upon a municipality’s interest in the maintenance of its land use allocation scheme.

In deciding which governmental interest should prevail where there is a conflict between the zoning ordinance of the city and the statutory authority of the state to perform a designated public function, the better approach, in my opinion, involves judicial inquiry into the reasonableness of the state’s action. Such a balance of interests approach would entail a consideration of a variety of relevant factors, including the type of facility or use intended by the state, the existing pattern of land use in the area, the effect of the activity on adjoining areas, public need for the facility, alternative locations for the facility, and alternative methods for providing the needed improvement. This approach would not result in total abrogation of state immunity, but rather would prevent the state from acting arbitrarily in undertaking violations of municipal zoning .ordinances by subjecting its actions to judicial review.

Using this balance of interest test, we might well conclude in this case that the state’s interests should prevail, and thus accord it exemption from the municipal zoning ordinance. However, because I am unwilling to say that such a result should obtain automatically in every instance of conflict, I dissent from the majority opinion.

      . LSA-Const. art. 6, § 9(B) (1974) corresponds to LSA-Const. art. 19, § 18 (1921).