author: MARCUS, Justice.

text:
    Sweeny BENOIT, as personal representative of William Benoit, Jr. v. FIREMAN’S FUND INS. CO., Standby Crews, Inc. and Deepwater Boats, Inc.
    No. 60336.
    Supreme Court of Louisiana.
    March 6, 1978.

      Ronald J. Bertrand, Nathan A. Cormie & Associates, Lake Charles, for plaintiff-applicant.
    Karl E. Boellert, Camp, Carmouche, Palmer, Barsh & Hunter, Lake Charles, for defendants-respondents.
   MARCUS, Justice.

Plaintiff, Sweeny Benoit, as personal representative of the decedent, William Be-noit, Jr., brought this action for wrongful death under the Jones Act, the Death on the High Seas Act (DOHSA), and the general maritime law against defendants, Deepwater Boats, Inc., Standby Crews, Inc., and Fireman’s Fund Insurance Company to recover damages for and on behalf of the decedent’s three minor children and mother.

On March 8, 1973, while serving as a member of the crew of the M/V Carol Ann, William Benoit, Jr., disappeared and was presumed drowned near Eugene Island in the Gulf of Mexico. His body was never recovered. The M/V Carol Ann, which at the time of the decedent’s disappearance was tied to a drilling platform rig for use as a standby vessel, was owned by Deepwater Boats, Inc., and was operated and manned by Standby Crews, Inc., the decedent’s employer. Both of these corporations were insured by Fireman’s Fund Insurance Company.

On August 22,1973, plaintiff, an uncle of the decedent, was appointed administrator of the decedent’s succession. In that capacity as the decedent’s personal representative, plaintiff filed the instant suit on March 5,1975, alleging the unseaworthiness of the vessel and negligence on the part of defendants, Deepwater Boats, Inc. and Standby Crews, Inc. Also named a party-defendant was Fireman’s Fund Insurance Company as the insurer of the above two defendants. Asserting an action under the Jones Act, DOHSA and the general maritime law, plaintiff requested a trial by jury. The trial judge granted the request.

Defendants answered plaintiff’s petition making a general denial to the allegations contained therein and affirmatively asserted, inter alia, that the decedent’s former wife and mother of the three minor children, Harriet Ann Rachal, as duly appointed natural tutrix of the minor children had executed a court-approved compromise and settlement of the minor-beneficiaries’ claim for the sum of $10,500. The settlement was executed on March 20, 1975, subsequent to the filing of plaintiff’s suit. Defendants alleged that this settlement operated to fully release and discharge them from liability for any claim asserted by plaintiff for and on behalf of the decedent’s minor children arising out of the decedent’s death. Thereafter, defendants filed a rule to strike plaintiff’s demand for a jury trial contending that, because the claim of the minor children had been settled on their behalf by their natural tutrix, plaintiff could only assert a claim for damages on behalf of the decedent’s mother under DOHSA and the general maritime law. Since an action under DOHSA and the general maritime law is not triable by jury when not joined with a claim for recovery under the Jones Act, defendants argued that plaintiff was not entitled to a jury trial on the claim asserted by him on behalf of the decedent’s mother.

The trial judge dismissed defendants’ rule to strike plaintiff’s demand for a jury trial reasoning that the settlement executed by defendants and the natural tutrix on behalf of the minor-beneficiaries was invalid. Thus, plaintiff as the decedent’s personal representative could properly maintain an action for damages for wrongful death on behalf of the minor children and the mother of the decedent under the Jones Act, DOH-SA and the general maritime law, which action was triable by jury. After trial on the merits, the jury returned a verdict in favor of plaintiff and against defendants awarding damages for decedent’s mother in the sum of $75,000 for loss of society and support and for the minor children in the sum of $112,500 for loss of . support. The trial judge signed a judgment in accordance with the verdict; an appeal was taken from this judgment by defendants.

The court of appeal • concluded that the trial judge committed manifest error in not recognizing the validity of the settlement entered into between defendants and the natural tutrix on behalf of the decedent’s minor children. Therefore, the court reversed that portion of the district court’s judgment which awarded damages for the minor-beneficiaries and ordered the claim dismissed. The court further ruled that, since the minors’ claim under the Jones Act, DOHSA and the general maritime law had been validly settled, plaintiff’s claim for and on behalf of the decedent’s mother under DOHSA and the general maritime law was improperly tried before a jury. Accordingly, the court reversed the remaining portion of the district court’s judgment which awarded damages for decedent’s mother and remanded the claim to the district court for consideration and decision by the trial judge on the basis of the record, subject to the trial judge’s discretion to allow additional evidence. We granted plaintiff’s application for certiorari to review the correctness of this judgment.

The issue posed for our determination is whether under the Jones Act, DOHSA and the general maritime law the natural tutrix of the decedent’s minor children could validly compromise and settle with defendants a claim for damages for the decedent’s wrongful death on behalf of the minor-beneficiaries after suit to enforce the claim had been instituted by the decedent’s personal representative.

The present action was brought pursuant to the Jones Act, 46 U.S.C. § 688, DOHSA, 46 U.S.C. § 761 et seq., and the general maritime law. The pertinent statutes provide:

46 U.S.C. § 688:
Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located. (Emphasis added.)
46 U.S.C. § 761:
Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued. (Emphasis added.)

It is well settled that an action under the Jones Act, DOHSA and the general maritime law must be instituted by the personal representative of the decedent for and on behalf of the appropriate beneficiaries. Futch v. Midland Enterprises, Inc., 471 F.2d 1195 (5th Cir. 1973); Milam v. Reading & Bates Offshore Drilling Company, 471 F.2d 1197 (5th Cir. 1973); Renner v. Rockwell International Corporation, 403 F.Supp. 849 (C.D.Cal.1975); Porche v. Gulf Mississippi Marine Corporation, 390 F.Supp. 624 (E.D.La.1975); Savoie v. Nolty J. Theriot, Inc., 396 F.Supp. 973 (E.D.La.1972); In Re Risdal & Anderson, Inc., 266 F.Supp. 157 (D.Mass.1967). The clear language of the Jones Act and DOHSA evinces the congressional intent to vest a right of action for maritime death solely in the personal representative. The advantages inherent in a uniform rule as to who may assert such an action are so obvious as to require no enumeration. Futch v. Midland Enterprises, Inc., supra. The personal representative’s right to maintain the action carries with it by necessary implication the sole power to control the prosecution of the suit and to settle or compromise the claim.

This well-established rule that the personal representative alone is vested with the authority to maintain an action for maritime death is subject to two exceptions jurisprudentially created by the federal courts. The first of these exceptions is that, where a conflict of interest exists between the decedent’s personal representative and a beneficiary, the beneficiary may intervene in the suit instituted by the personal representative and therein assert an independent claim for wrongful death on his own behalf. Smith v. Clark Sherwood Oil Field Contractors, 457 F.2d 1339 (5th Cir. 1972); In Re Risdal & Anderson, Inc., supra; Petition of Sandra & Dennis Fishing Corp., 209 F.Supp. 835 (D.Mass.1962). Likewise, where the personal representative actively participates or cooperates with the beneficiary in a settlement of the beneficiary’s claim, the settlement executed by the beneficiary is valid. Hassan v. A. M. Landry & Son, Inc., 321 F.2d 570 (5th Cir. 1963). See, Larry v. Chicago, B. & Q. R. Co., 74 F.Supp. 798 (E.D.Mo.1947). But, in the absence of a showing of a conflict of interest between the decedent’s personal representative and the beneficiary or of the active participation of the personal representative in a settlement entered into by the beneficiary, under federal law the authority to control the prosecution of an action for maritime death and to settle the claim remains solely with the personal representative. A rule to the contrary, which would permit a beneficiary, after suit is brought by the personal representative, to compromise his claim and thus cancel the claim for damages upon which the personal representative’s action is based, would oust the personal representative of the authority to control the prosecution of the action conferred on him by federal law and confer that power upon one who is not even a party to the action. See, Pittsburgh C., C. & St. L. Ry. Co. v. Collard’s Adm’r, 170 Ky. 239,185 S.W. 1108 (1916); Yelton v. Evansville & I. R. Co., 134 Ind. 414, 33 N.E. 629 (1893).

In the instant case, there is no evidence that plaintiff actively participated or cooperated in the settlement entered into by defendants and the natural tutrix on behalf of the decedent’s minor children. Nor is any showing made that the interests of the minor-beneficiaries conflicted with those of plaintiff-personal representative. But, even assuming arguendo that a conflict of interest was demonstrated, still the natural tutrix was not authorized to settle the minor-beneficiaries’ claim for damages; rather, in such a case, her recourse under federal jurisprudence was to seek intervention in the suit filed by plaintiff and therein to assert an independent claim for damages on behalf of the decedent’s minor children. Smith v. Clark Sherwood Oil Field Contractors, supra. Hence, under the facts of this case, plaintiff, as the personal representative of the decedent, had the sole power to maintain and to settle the minor-beneficiaries’ claim for the wrongful death of their father under the Jones Act, DOHSA and the general maritime law. We, therefore, conclude that the settlement of the minor-beneficiaries’ claim executed by the minors’ natural tutrix with defendants after the action to enforce the minors’ claim was instituted by plaintiff was invalid and of no effect. Accordingly, the court of appeal erred in recognizing the validity of the settlement.

Because of its disposition of the controversy, the court of appeal did not pass upon the merits of plaintiff’s claim for damages for and on behalf of the decedent’s minor children. An examination of the record discloses certain factual and legal disputes among the parties, some of which are the alleged unseaworthiness of the vessel, negligence on the part of defendants, Deepwater Boats, Inc. and Standby Crews, Inc., contributory negligence on the part of the decedent, and the amount of damages, if any, to which the minor-beneficiaries are entitled. We will adhere to the usual policy of this court in such instances and remand the case to the court of appeal for consideration of those issues not passed upon by it, since resolution, of them is necessary before entry of final decree. Hood Motor Company, Inc. v. Lawrence, 320 So.2d 111 (La.1975); Smith v. Hartford Accident and Indemnity Company, 254 La. 341, 223 So.2d 826 (1969); Mataya v. Delta Life Ins. Co., 222 La. 509, 62 So.2d 817 (1953).

DECREE

For the reasons assigned, that portion of the judgment of the court of appeal which reversed the district court’s award of damages for decedent’s minor children and ordered that claim dismissed is reversed. The case is remanded to the court of appeal for further proceedings consistent with the views herein expressed. The costs of review in this court are assessed against defendants.

      . Plaintiff replaced William Benoit, Sr,, the decedent’s father, as administrator of the succession when Mr. Benoit died.

      . Decedent and Harriet Ann Benoit were divorced by judgment dated June 12, 1969. She has since remarried.

      . Under the Jones Act, 46 U.S.C. § 688, and the provisions of the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq., which the Jones Act adopts by reference, where a decedent has surviving children, they are his beneficiaries to the exclusion of his parents. On the other hand, under DOHSA, the personal representative’s suit in admiralty shall be for the benefit of decedent’s children, parents, etc. against the vessel, person, or corporation which would have been liable if death had not ensued.

      . 347 So.2d 269 (La.App.1977).

      . 350 So.2d 904 (La. 1977). After the court of appeal rendered its decision in this matter, the claim asserted by plaintiff on behalf of the decedent’s mother was compromised. It is, therefore, not before this court for review.


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Roy Lee VALENTINE.
    No. 60459.
    Supreme Court of Louisiana.
    March 6, 1978.
    Bruce M. Bolin, Fish & Montgomery, Minden, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., R. Harmon Drew, Jr., Asst. Dist. Atty., for plaintiff-respondent.
   DENNIS, Justice.

On February 16, 1977 a Webster Parish Deputy Sheriff applied for a warrant to search the defendant’s person and his residence for controlled dangerous substances. In support of his application, the officer submitted the following affidavit, which, in pertinent part, recited:

“ * * * On February 4th, 1977 at 6:45 PM, affiant met with a reliable confidential Informant in Webster Parish. Affiant searched Informant and determined Informant had no money nor controlled dangerous substances on his person. Affiant gave Informant a ten dollar bill, a five dollar bill and five one-dollar bills and told Informant to go to Roy Lee Valentine’s residence and ourchase [sic] a lid of marihuana [sic] from Roy Lee Valentine whom Informant knows. At 6:52 PM, February 4th, 1977 Affiant let Informant out of Affiant’s vehicle approximately two blocks from Valentine’s residence. Affiant observed Informant go to the front of Valentine’s residence and stand outside the door. At 7:10 PM, February 4th, 1977, Informant met with Af-fiant approximately three blocks from the residence of Valentine. Informant gave Affiant a plastic bag containing approximately one ounce of marihuana [sic], a five dollar bill and five one-dollar bills. Affiant agains [sic] searched Informant and determined Informant had no more money nor controlled dangerous substances on his person.
“Affiant has received reports from numerous sources that Roy Lee Valentine is distributing controlled dangerous substances from his residence on 5th SW Street, Springhill, La.
“Informant established his reliability by giving Affiant information on numerous occasions and particularly by giving information leading to the arrest of James C. Webb for the burglary of Arkin Brown’s residence on Aug. 25, 1976.
“Therefore Affiant requests a Search Warrant to determine if controlled dangerous substances are located on/in the above described person and premises.” The search warrant was issued.

In executing the warrant the officer entered the premises and seized a quantity of marijuana and two musical instruments that he suspected had been stolen.

Defendant moved to suppress these items. The district court denied his motion, and defendant applied to this Court for writs of review and certiorari. We granted the writs to determine if the warrant had been issued without probable cause. La. Const, of 1974, Art. I, § 5.

A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant. La. C.Cr.P. art. 162.

In the instant case the affidavit seeks to establish probable cause to issue a warrant to search defendant’s house and his person for marijuana. Yet the affidavit does not say that anyone has seen marijuana in either place. Apparently, the affiant intended to show that an unidentified informant purchased one ounce of marijuana from the defendant in his house. However, the affidavit does not establish that the informant actually entered the building, or that he obtained any marijuana from a person in the building, or that the defendant had anything to do with any transaction which may have occurred. Moreover, even if it could be assumed that the informant purchased one ounce of marijuana from the defendant in his house, the affidavit does not recite facts establishing that additional marijuana was located in the house or on defendant’s person at the time of such transaction. Thus the affidavit also fails to establish probable cause to believe that any marijuana would be located in either place twelve days later when the application for a search warrant was presented to a magistrate. The vague reports received by the affiant from “numerous [unidentified] sources” that defendant was distributing controlled dangerous substances from his residence are general conclusions, not recitations of fact by credible persons, and do not, either independently or in combination with the other statements contained in the affidavit, establish cause for issuance of the warrant.

Accordingly, the warrant was issued without probable cause, and the search and seizure made thereunder were unreasonable and unconstitutional. The judgment of the district court is vacated, and the defendant’s motion to suppress is granted.

******

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


author: SANDERS, Chief Justice. DENNIS, Justice,

text:
    UNITED TEACHERS OF NEW ORLEANS v. ORLEANS PARISH SCHOOL BOARD.
    No. 60552.
    Supreme Court of Louisiana.
    March 6, 1978.
    John P. Nelson, Jr., Richard G. Vinet, Nelson, Nelson & Lombard, Ltd., New Orleans, for plaintiffs-applicants.
    Franklin V. Endom, Jr., Polaek, Rosenberg, Rittenberg & Endom, New. Orleans, for defendant-respondent.
   SANDERS, Chief Justice.

A teachers union sued the school board to compel arbitration as provided in their collective bargaining agreement. The district court entered judgment for the teachers union. The Court of Appeal reversed. La. App., 348 So.2d 232 (1977). We granted writs to review the judgment. La., 350 So.2d 1216 (1977).

Orleans Parish School Board and the United Teachers of New Orleans had a collective bargaining agreement. Article 13 of that contract contained rules for periodic teacher evaluations. Thereafter, the Board established evaluation policies differing from those in Article 13.

The Union contends that the “implementation of this new teacher evaluation policy will have an impact upon the terms and conditions of the teachers’ employment and should therefore be subject to negotiation, as provided for in Article 4, Section 3 [of the contract].” Thus, the issue involves obligations arising from the contract.

The collective bargaining agreement was effective July 1, 1975 through June 30, 1977. Currently there is a new contract in effect which is silent on evaluation policies.

When a party to an expired contract sues to enforce any rights or obligations stemming from that contract, the case is moot. Trist v. Ravain, 239 La. 487, 118 So.2d 896 (1960); Herman v. Style Line Greetings, Inc., La.App., 325 So.2d 371 (1976); Kean’s v. Willoughby, La.App., 149 So. 237 (1933). In such a case the appeal must be dismissed because a judgment, if rendered in favor of the plaintiff, could “grant [no] effectual relief whatever. . . ” Mills v. Green, 159 U.S. 651, 16 S.Ct. 132, 40 L.Ed. 293 (1895). An appellate court must avoid decisions from which no practical results can follow. Pettingill v. Hills, 199 La. 557, 6 So.2d 660 (1942). Moreover, in the interest of judicial economy, the Court may declare mootness on its own motion. LSA-C.C.P. Art. 2164; Behler v. Louisiana State Racing Commission, 251 La. 959, 207 So.2d 758 (1968).

The sole issue presented concerns obligations arising from an expired contract. We conclude that the case is moot.

For the reasons assigned, the appeal is dismissed.

DIXON, J., dissents.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

The finding of mootness is correct in this case. However, the broad language in the majority opinion should not be read to preclude actions for damages arising from expired contracts.' Such claims, in appropriate cases, would survive the expiration of the contract and would not be considered moot.

      . Article 4:3 provided:
      “The BOARD shall not during the life of this AGREEMENT establish any policy, practice, rules or regulation inconsistent with the terms of this AGREEMENT. If the BOARD intends to establish a new educational policy, practice, rules or regulation which has an impact upon the terms and conditions of employment of the teachers the BOARD shall negotiate over such impact with the UNION.”

      . Although the record does not contain the current agreement, the parties agreed in oral argument to this Court that it did not have a provision regulating evaluations. Therefore, this particular conflict is at an end. See Buffalo Forge v. U. Steelwkrs. of America, AFL-CIO, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022, n. 8 (1976).


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

text:
    STATE of Louisiana v. Richard W. PARKER.
    No. 60602.
    Supreme Court of Louisiana.
    March 6, 1978.

      J. Michael Stefanski, Edwards, Stefanski & Barousse, Crowley, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Bernard N. Marcantel, Dist. Atty., for plaintiff-respondent.
   DIXON, Justice.

On April 5, 1977 defendant Richard W. Parker was charged by bill of information with the offense of possession of marijuana with intent to distribute. Defendant’s motion to suppress evidence seized from his van was denied by the trial court on August 17, 1977, and we granted certiorari to review that ruling. 351 So.2d 1208 (La.1977).

The motion to suppress was directed at a seizure of a cellophane bag of marijuana from a van parked on North Main Street in Jennings. Craig Daigle and his partner, patrolmen for the Town of Jennings, had seen the van parked (lawfully) in front of an electronics store and across the street from a lounge when they came on duty at about 10:00 p. m. March 29, 1977. The officers customarily noted the existence of automobiles on their rounds, and were not familiar with the van. At 2:36 a. m. March 30 they decided to check the van “to see if there was anyone in it, or any type of letter or anything that might show a name for possible identification.” The license plate had a seven digit number. Daigle said he had been told, when trying to check such number previously, that they had not yet been “entered” in the computer, and could not be checked until the Department of Safety opened.

No other cars were parked in the area, and the lounge across the street had closed some time earlier. With his flashlight Dai-gle ascertained the van was unoccupied. He then began to check the dashboard, the motor console and seat. Looking through the passenger window, he saw a plastic bag protruding from under the seat, which he thought contained marijuana. The van was sparsely furnished; the only car seat was for the driver, with a “bean bag” seat on the passenger side, and no other furniture or partitions. There were only two windows, one in the door by the driver and one on the passenger side. The door on the passenger side was locked, but the driver’s door was closed, but not locked.

Daigle opened the door at the driver’s side, examined the package more closely, and then removed it from the van. He called for another policeman to watch the van and left for the police station at 3:19 a. m., with the marijuana. Defendant was arrested some time later when he returned to his van.

Daigle testified that he made no attempt to obtain a search warrant because of the time it would take, but “also I was under the impression that anything in plain view — I was trained to believe that anything in plain view, you know, it was subject ... to seizure.”

The trial judge sustained the seizure, holding that it “does come within the plain view exception to the prohibition against warrantless searches . . .”

Strictly speaking, “plain view” is not an exception to the requirement for search warrants. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Fearn, 345 So.2d 468 (La.1977). A warrantless seizure of material in “plain view” would be an unreasonable seizure under the Fourth Amendment of the United States Constitution and Article 1, § 5 of the Louisiana Constitution of 1974, unless made with probable cause and exigent circumstances, or incident to a lawful arrest while making a genuine inventory.

It may be difficult to agree on the proper interpretation and effect of the opinion in Coolidge v. New Hampshire, supra, but Justice White, joined by Chief Justice Burger, clearly understood the narrow holding of the portion relevant to the case before us:

“The majority now approves warrantless searches of vehicles in motion when seized. On the other hand, warrantless, probable-cause searches of parked but movable vehicles in some situations would be valid only upon proof of exigent circumstances justifying the search. Although I am not sure, it would seem that, when police discover a parked car that they have probable cause to search, they may not immediately search but must seek a warrant. But if before the warrant arrives, the car is put in motion by its owner or others, it may be stopped and searched on the spot or elsewhere. In the ease before us, Coolidge’s car, parked at his house, could not be searched without a valid warrant, although if Coolidge had been arrested as he drove away from his home, immediate seizure and subsequent search of the car would have been reasonable under the Fourth Amendment.” (Emphasis added). 403 U.S. at 524-25, 91 S.Ct. at 2067, 29 L.Ed.2d at 617.

In 1974 this court was faced with a war-rantless seizure of marijuana which officers testified they found in “plain view” on the front floor of a car. In a unanimous opinion by the Chief Justice, we held:

“Assuming, however, that probable cause did exist at the time of the search, we find no exigent circumstances justifying a bypass of the search warrant procedure. The automobile was in police custody, and the arresting officer held the key. The officers had ample time to secure a warrant, as evidenced by the fact that they did later secure one.” State v. Hargiss, 288 So.2d 633 at 636 (La.1974).

Officer Daigle was faced with no exigent circumstances. Except for the inconvenience, he could have obtained a search warrant. The object of the prohibition against warrantless searches is to place the burden of decision and the protection of the citizen upon the magistrate, not the policeman.

It is axiomatic that, absent one of the well delineated exceptions, a warrant-less search or seizure is, in itself, unreasonable under the Fourth Amendment of the United States Constitution and Article 1, § 5 of the Louisiana Constitution of-1974. Coolidge v. New Hampshire, supra; Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Lain, 347 So.2d 167 (La.1977); State v. Fearn, supra.

All too often, lawyers and courts alike attribute greater importance to the “plain view” doctrine than it deserves: it is easy to call it an “exception,” but it is not an exception to the requirement that a search or seizure must be supported by a warrant issued by a magistrate upon a finding of probable cause. Plain view serves to provide a means of securing probable cause, and, absent the applicability of one of the true exceptions to the warrant requirement, nothing more. In Coolidge v. New Hampshire, supra, -the United States Supreme Court enunciated this principle in the following manner:

“The limits on the doctrine are implicit in the statement of its rationale. The first of these is that plain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances.’ Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure. Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153; Jones v. United States, 357 U.S. 493, 497-498, 78 S.Ct. 1253, 1256-1257, 2 L.Ed.2d 1514, 1518; Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828; Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663.” (Emphasis by author of opinion). 403 U.S. at 468, 91 S.Ct. at 2039, 29 L.Ed.2d at 584.

We recognized this principle, at least implicitly, in State v. Fearn, supra. In that case the defendant was growing marijuana plants in a ditch located on his parents’ property. A neighbor notified the police and invited them onto his property to view the contraband. From their vantage point on the neighbor’s property, the police could clearly view the plants and identify them as marijuana. The police then seized the plants without first obtaining a warrant. In our review of the seizure we first set out the following conditions for the applicability of the plain view doctrine:

. . (1) there must be a prior justification for an intrusion into a protected area, (2) in the course of which evidence is discovered inadvertently, and (3) where it is immediately apparent without close inspection that the items are evidence or contraband. See also State v. Meichel, 290 So.2d 878 (La.1974). . . .” 345 So.2d at 470.

In holding that the seizure violated the defendant’s expectation of privacy, we recognized that the police had a “plain view” of the contraband from the neighbor’s property, but noted that this was not controlling. Instead, we stated:

“. . . The intrusion into the protected area, the ditch, did not take place until after defendant was arrested. The initial view of the contraband occurred before any valid intrusion into the protected area was made, and at a' time when the police could have obtained a warrant. ...” 345 So.2d at 470-71.

From the cases we may deduce the following. When an officer inadvertently observes evidence of a crime from a vantage point that does not intrude upon a protected area or when that protected area is entered with prior justification, there is no violation of the search warrant rule because there has been no “search.” See also State v. Bourg, 332 So.2d 235 (La.1976); State v. Thomas, 310 So.2d 517 (La.1975); State v. Terracina, 309 So.2d 271 (La.1975). This does not, however, mean that the officer may, without more, seize the evidence. If the evidence is itself within a protected area, the officer may not enter that area to effect the seizure without first , obtaining a warrant, absent exigent circumstances or another exception to the warrant requirement.

In the instant case, there can be no doubt that Officer Daigel did not intrude upon the defendant’s protected area by standing in the street alongside the van. We pretermit deciding and assume for the purposes of argument, that the evidence was inadvertently observed, and that it was clearly contraband. For the purposes of this decision, we may say that the officer did not conduct an unconstitutional search. The issue remains, however, whether the defendant’s constitutional rights were violated when the officer entered the van and seized the evidence without a warrant.

The relation between the Fourth Amendment and automobile searches has long been a field of constitutional law evidencing considerable controversy. In the vintage case of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the United States Supreme Court first recognized the distinction:

“. . between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” 267 U.S. at 153, 45 S.Ct. at 285, 69 L.Ed. at 551.

Other cases have, over the years, refined the original justification for the lesser protection afforded automobiles by the Fourth Amendment and, as will be discussed later, have added an additional justification. A review of some of those cases is pertinent to the issue before us.

In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), police stopped a car fitting a description given after a robbery which occurred less than an hour before. The four passengers were arrested and the car was driven to the police station. The police then thoroughly searched the car without first obtaining a search warrant. The court stated the general rule as follows:

“. . . Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search. Carroll, supra, holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained. Hence an immediate search is constitutionally permissible." 399 U.S. at 51, 90 S.Ct. at 1981, 26 L.Ed.2d at 428.

By balancing the degree of intrusion upon the defendant’s rights through the station house search (a search which would have been permissible under Carroll if it had occurred at the time the car was stopped) against the intrusion caused by immobilizing the vehicle while securing a warrant, the court held that no practical difference existed, and therefore the search was not unconstitutional.

A broad reading of Carroll and Chambers may very well have resulted in a rule that would allow warrantless searches or seizures of automobiles at any time there existed probable cause. This approach, however, was specifically rejected in Coolidge v. New Hampshire, supra. In Coolidge, the defendant’s car was seized and taken to the police station after he had been arrested. The ear was searched two days after it was seized. The court stated:

“The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.
Since Carroll would not have justified a warrantless search of the Pontiac at the time Coolidge was arrested, the later search at the station house was plainly illegal, at least so far as the automobile exception is concerned. Chambers, supra, is of no help to the State, since that case held only that, where the police may stop and search an automobile under Carroll, they may also seize it and search it later at the police station. . . . Here
there was probable cause, but no exigent circumstances justified the police in proceeding without a warrant. As in Dyke, [Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1967)] the later search at the station house was therefore illegal." 403 U.S. at 461, 463-64, 91 S.Ct. at 2035, 2036-37, 29 L.Ed.2d at 580, 581.

Thus Coolidge indicates that probable cause alone is not sufficient; there must be a distinct justification, such as exigent circumstances, to validate a warrantless intrusion.

A second justification for warrantless intrusions has been advanced in the so-called “inventory search” eases. In Harris v. United States, 390 U.S. 234, 88 S.Ct. 992,19 L.Ed.2d 1067 (1968), for example, the court, cognizant of the lesser expectation of privacy associated with automobiles, held that evidence seized after an impounded automobile was entered by police for the purpose of closing its windows against the rain was admissible. The court noted that the entry was justified as a “measure taken to protect the car while it was in police custody” (390 U.S. at 236, 88 S.Ct. at 993, 19 L.Ed.2d at 1069), and once there was a lawful entry, the seizure of the evidence did not violate the defendant’s constitutional rights.

The recent case of South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), further illustrates the approach developed in inventory searches. In that case the defendant’s car was towed to a city impound lot for a parking violation. A policeman noticed a watch on the dashboard and other personal items on the back seat and floorboard of the car. The ear was opened and the police conducted an inventory search which produced not only the personal items, but also a quantity of marijuana. The court held that the intrusion upon the protected area was justified by the superior interests served through a valid inventory search. Those interests, as outlined by the court are:

“ . . . the protection of the owner’s property while it remains in police custody, United States v. Mitchell, 458 F.2d 960, 961 (CA 9 1972); the protection of the police against claims or disputes over lost or stolen property, United States v. Kelehar, 470 F.2d 176, 178 (CA 5 1972); and the protection of the police from potential danger, Cooper v. California, 386 U.S., at 61-62, 87 S.Ct. at 790. The practice has been viewed as essential to respond to incidents of theft or vandalism. See Cabbler v. Commonwealth, 212 Va. 520, 184 S.E.2d 781, 782 (1971), cert. denied, 405 U.S. 1073, 92 S.Ct. 1501, 31 L.Ed.2d 807 (1972); Warrix v. State, 50 Wis.2d 368, 376,. 184 N.W.2d 189, 194 (1971). In addition, police frequently attempt to determine whether a vehicle has been stolen and thereafter abandoned.” 428 U.S. at 369, 96 S.Ct. at 3096-97, 49 L.Ed.2d at 1005.

From the foregoing cases it can be seen that the citizen’s interest in the privacy of his automobile, because of the nature of the device, is less than his interest in the privacy of his home or other structure. Accordingly, the Fourth Amendment does not afford as great a degree of protection to that interest. But the automobile is not entirely without the protection of the Fourth Amendment. While there are numerous cases upholding the validity of war-rantless searches and seizures of automobiles in each case there existed interests superior to those of the citizen, whether they be “exigent circumstances” or the police interest in protection through inventory. Additionally, in each case, the initial intrusion into the protected area was justified by those interests. Therefore, it is clear that probable cause alone is not sufficient to justify a warrantless search or seizure, even where the object to be searched or seized is an automobile.

In the present case, the warrantless seizure effected an intrusion upon defendant’s interest in the privacy of his automobile which was not justified by any superior interests. At the time Officer Daigle entered the car, no exigent circumstances existed. The mere fact that an automobile is involved does not create exigent circumstances. Coolidge v. New Hampshire, supra. The vehicle was unattended so there was no immediate danger that the evidence would be spirited off or destroyed. Leaving the car under surveillance while a warrant could be obtained would have imposed no greater hardship on the officers, nor would it have endangered the evidence or society. The testimony at the motion to suppress hearing indicates that after Officer Daigle seized the evidence the car remained under surveillance and the defendant was arrested when he returned. Because the entry was made without a warrant and in spite of the lack of exigent circumstances or other superior interests, the defendant was denied his right to have a magistrate, unaffected by on-the-street pressures of law enforcement, determine whether probable cause to search or seize existed.

We hold that the defendant’s rights under the Fourth Amendment and those afforded by Article 1, § 5 of the Louisiana Constitution of 1974 were violated by the warrantless seizure of evidence from his car. The ruling of the trial court on the motion to suppress is reversed, and the motion to suppress is sustained, and the case is remanded to the district court for further proceedings.

SANDERS, C. J., dissents with written reasons.

MARCUS, J., dissents and assigns reasons.

SUMMERS, J., dissents.

SANDERS, Chief Justice

(dissenting).

Richard W. Parker was charged with possession of Marijuana with intent to distribute, in violation of LSA-R.S. 40:966 A(l). Prior to trial, defendant filed a motion to suppress the marijuana which had been seized from his parked vehicle. After a hearing, the motion was denied by the trial judge. The majority reverses the ruling. I disagree.

The facts surrounding the seizure of the marijuana are as follows: Patrolman Craig Daigle, accompanied by Pfc. William Wood, Jr., was patrolling Main Street in Jennings, Louisiana, during the late night and early morning hours of March 30, 1977. During this patrol, he observed an unattended vehicle parked on the street in front of an electronics store and directly across the street from a lounge. The vehicle remained parked at that location for several hours. At approximately 2:36 a. m., Daigle noticed that the vehicle had not been moved and decided to make a routine check of the van. No business establishment, including the lounge, was open at that time of the morning. The van was the only vehicle parked on the street for three blocks. Daigle testified that several burglaries had been committed during the early morning hours, and routine police procedure required him to check vehicles parked near the businesses during the early morning hours. Additionally, checks were run on unattended vehicles to determine if they were stolen or abandoned. Daigle, who did not recognize the new model van, was unable to run a registration check on the vehicle because its new license had not yet been entered in the computer. Daigle testified that upon approaching the van he shined his flashlight through the window on the passenger side to see if anyone was inside. Having ascertained that the van was unoccupied, Dai-gle then shined the flashlight around the interior of the vehicle to determine if any document was visible identifying the owner, since a registration check of the vehicle was not possible. While doing so, he noticed on the floorboard of the van, protruding about halfway from under the driver’s seat, a cellophane bag containing what appeared to be marijuana. Only after observing the substance did Daigle enter the car through the unlocked door on the driver’s side. He then seized the bag containing about one pound of marijuana and returned to the police station after requesting that Sergeant James Romero watch the vehicle for the owner’s return. Defendant was subsequently arrested when he returned to the vehicle.

Arguably, an individual has no expectation of privacy as to those areas of the car which are visible to passersby through the windows of the vehicle, unlike such areas as the glove compartment or the trunk shielded from visibility. If so, the Fourth Amendment of the United States Constitution does not apply.

Assuming, however, that every part of a vehicle is protected against unreasonable searches and seizures by the Fourth Amendment, nevertheless it is submitted that defendant’s contention that the marijuana was unlawfully seized is without merit. It is well settled that, under certain circumstances, the police may seize evidence in plain view without a warrant. Under this rule it has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). Evidence seized in plain view is not the product of a search, and its introduction into evidence does not offend the Fourth Amendment. State v. Bourg, La., 332 So.2d 235 (1976); State v. Hargiss, La., 288 So.2d 633 (1974).

In the instant case, the officer observed an unattended and unlocked vehicle parked for several hours on a public street in the Jennings business district during the early morning hours when every business on the street was closed. Routine police procedure during early morning patrols required a check of unattended vehicles in order to curtail burglaries in the city. In compliance with this procedure and in order to determine whether the vehicle might have been stolen or abandoned, the police officer attempted to ascertain the ownership of the van without entering the vehicle by looking for documents bearing the owner’s name which might be visible from the outside. The officer had a right to be in the position where he was when the marijuana fell into plain view. The contraband in plain view was not the product of a search and was lawfully seized. The fact that a flashlight was used by the officer as a visual aid in examining the interior of the van to determine its ownership does not transform the officer’s actions into a search. United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927); Marshall v. United States, 422 F.2d 185 (5th Cir. 1970); Williams v. United States, 404 F.2d 493 (1968).

In my opinion, the ruling of the trial judge permitting the admission of the evidence at the trial is correct.

Por the reasons assigned, I respectfully dissent.

MARCUS, Justice

(dissenting).

I agree with the majority that probable cause without exigent circumstances would not justify the police making a search of a parked vehicle without a warrant. However, in the instant case, I consider that the police officers had a legitimate right to be where they were when they inadvertently came across the marijuana. Therefore, the marijuana was subject to seizure under the plain view doctrine. The seizure was not unreasonable under the fourth amendment. Accordingly, I respectfully dissent.

      . For the difficulty of “clean” analysis of automobile search cases, see Moyland, The Automobile Exception, 27 Mercer Law Review 987 (1975-76).


author: DIXON, Justice.

text:
    Rachael Hotard THOMASON v. Hugh Montgomery THOMASON, III.
    No. 60639.
    Supreme Court of Louisiana.
    March 6, 1978.

      Frank L. Koles, III, Ponder & Ponder, Amite, for plaintiff-applicant.
    Robert W. Troyer, Ponchatoula, for defendant-respondent.
   DIXON, Justice.

This suit for divorce because of the conviction and sentence of the spouse to imprisonment at hard labor (C.C. 139(2)) was brought by relatrix, Rachael Hotard Thom-ason. Respondent husband answered, reconvening for divorce because of the adultery of his wife. The trial judge rejected the demands of both parties because of “mutual fault.”

Only the wife appealed. The Court of Appeal affirmed the judgment against her, finding that “our doctrine of comparative rectitude dictates that neither shall prevail.” Thomason v. Thomason, 349 So.2d 928, 931. That court further noted that the judgment against the husband had become final, and that res judicata prevented relief to him, although adultery had been recognized to be a “greater fault” in early jurisprudence.

At trial on December 1,1976 it was established that the parties were married September 23,1973 and had one child. Records were introduced to show that Mr. Thoma-son was charged by bill of information with armed robbery on January 30, 1975, pled guilty to simple robbery on July 1, 1976, and was sentenced to serve five years at hard labor. He had been in the custody of the State since his arrest in January, 1975. Mrs. Thomason had been living with John Eady since September of 1975 and had a child by him.

Mrs. Thomason contends that her main demand, filed prior to her husband’s recon-ventional demand, should have taken precedence over the reconventional demand when she submitted proof of her husband’s felony conviction and sentence to imprisonment at hard labor. She relies upon two cases, Perry v. Perry, 207 So.2d 819 (La.App.1st Cir. 1968) and McCaa v. McCaa, 163 So.2d 434 (La.App.2d Cir. 1964), writ denied, 246 La. 579, 165 So.2d 480 (1964).

In McCaa the Court of Appeal found no error in the trial court’s holding that the husband’s main demand for divorce based on his wife’s adultery which had been proven at trial took precedence over his wife’s reconventional demand for divorce grounded on two years voluntary separation. 163 So.2d at 436. Finding McCaa controlling, the First Circuit in Perry v. Perry, supra, held that since the husband’s suit for divorce on the basis of two years separation was filed first and evidence on his case was adduced first, it took precedence over his wife’s reconventional demand and separate suit for divorce based on adultery.

The Court of Appeal in the instant case correctly disposed of that issue when it stated:

“. . . Appellant, (Mrs. Thomason) having committed adultery, may not prevail merely because she was first to reach the courthouse . . . ” 349 So.2d at 931.

This result is consistent with the broadened procedural rules for reconventional demands enacted by the legislature in 1960. Code of Civil Procedure article 1061 replaced the rule of article 375 of the Code of Practice of 1870 which required the recon-ventional demand to be “connected with and incidental to” the main action. Article 1061 provides:

“The defendant in the principal action may assert in a reconventional demand any action which he may have against the plaintiff in the principal action, . regardless of connexity between the principal and reconventional demands’’ (Emphasis added).

This change was intended to “permit[s] a defendant to urge against the plaintiff any action which he might have.” Official Revision Comment to C.C.P. 1061. To allow a defendant to assert his claim against the plaintiff only to have it dismissed- when the plaintiff proves his or her claim would defeat the purpose of the revision which was to “[encourage] the settlement of all disputes between the parties at one time.” Id.

The trial court, in properly considering both Mrs. and Mr. Thomason’s claims for divorce, found “equal mutual fault” and thus dismissed both causes of action. The trial judge was applying the doctrine of recrimination, which requires the denial of relief to a complainant who has been guilty of conduct which would entitle the other spouse to a divorce.

This court-created doctrine has been long established in our jurisprudence and is based on the equitable idea that he who comes into court with unclean hands cannot obtain relief. The application of the recrimination doctrine which denies the divorce to both parties results in punishing the two equally guilty parties by sentencing them to live in a married state after they have both proved their incompatibility.

Certain policy arguments have been advanced for retention of the recrimination doctrine: (1) promotion of marital stability, (2) deterrence of immorality, (3) promotion of financial security for women, and (4) prevention of subsequent bad marriages. These considerations, which might have been reasonable in ages past, can no longer justify its application. Two parties seeking divorce have already demonstrated an inclination to breach their marriage contract; it is doubtful that forcing them to remain married would be conducive to the family concept. Instead of promoting stability and discouraging bad marriages, it tends to lead to increased hatred between the parties, infidelity, the destruction of home life to the detriment of the children, and perhaps fosters cruelty and physical violence. Instead of curbing immoral conduct, the parties are allowed to continue illicit relationships with the court’s consent. We do not understand that the doctrine of recrimination strengthens the institution of marriage or serves any useful social purpose. The law should not prevent the termination of a defunct marriage even, or especially, where both parties are at fault. If a divorce is possible where one party is guilty, there is all the more reason to grant a divorce where both are guilty. The judicially created doctrine of recrimination in divorce is therefore abrogated by the court, acknowledging the legislative abrogation of the doctrine in separation cases.

The Court of Appeal found that the fault of the two parties was mutual but not equal. The court cited J. F. C. v. M. E., 6 Rob. 135 (La.1843) and Abshire v. Hanks, 119 La. 425, 44 So. 186 (1907) for the proposition that adultery is the most grievous marital fault and concluded that Mrs. Thomason was more at fault in committing adultery than Mr. Thomason in committing a felony. The court implied that had Mr. Thomason been subject to the court’s jurisdiction (he was not due to his failure to appeal or answer his wife’s appeal), it would have reversed the trial court’s judgment dismissing his reconventional demand and granted a divorce to him. Finding Mrs. Thomason more at fault, the court affirmed the trial court’s dismissal of her petition.

The appellate court was applying the doctrine of comparative rectitude which was developed to ameliorate the effects of the recrimination doctrine by comparing the relative degree of fault of each party and granting a divorce or separation to the party less at fault. We do not agree that the commission of adultery is the greater fault, under all circumstances. As with nearly all absolutes, such a rule is both unnecessary and unreasonable. To the extent that J. F. C. v. M. E., supra, and Abshire v. Hanks, supra, stand for that proposition, they are overruled.

We cannot say from the record before us that Mrs. Thomason’s having taken up residence with another man nine months after her husband was incarcerated is any more serious than his having committed a robbery. Commission of a robbery is a violation of our criminal statutes and an offense against the state; commission of adultery, although morally wrong and surely destructive of a marriage, is not a crime. The trial judge found as a fact that the fault of both parties was equal, and we do not disagree. The doctrine of recrimination should not be applied to bar relief where the litigants are equally at fault. Therefore we conclude the trial court erred in dismissing both the principal demand of Mrs. Thomason and reconventional demand of Mr. Thomason. However, we are not able to affect the trial court’s judgment dismissing Mr. Thomason’s demand, which became final upon his failure to appeal or answer his wife’s appeal. See Allen v. Commercial National Bank in Shreveport, 243 La. 840, 147 So.2d 865 (1963).

For the foregoing reasons, the judgments of the trial court and the Court of Appeal dismissing Mrs. Thomason’s suit are reversed; the trial court’s determination of mutual equal fault is affirmed and reinstated. There is now judgment in favor of Mrs. Thomason granting her a divorce from Hugh Montgomery Thomason, III, at his cost.

“A separation from bed and board shall be granted although both spouses are mutually at fault in causing the separation (Emphasis added).

SUMMERS, J., dissents.

        .McCaa v. McCaa, supra, and Perry v. Perry, supra, are overruled insofar as they are incon-' sistent with this opinion. They are inconsistent with a long line of appellate court cases which considered both the main and reconven-tional demands simultaneously to determine which claimant, if either, was entitled to a separation or divorce. See, e. g., Richard v. Richard, 340 So.2d 1104 (La.App.3d Cir. 1976); Fontenot v. Fontenot, 327 So.2d 678 (La. App.1st Cir. 1976), writ denied, 334 So.2d 702 (La.1976); Grappe v. Grappe, 315 So.2d 866 (La.App.3d Cir. 1975); Schillaci v. Schillaci, 310 So.2d 179 (La.App.4th Cir. 1975), writ denied, 313 So.2d 599 (La.1975); Maranto v. Maranto, 297 So.2d 704 (La.App.1st Cir. 1974); Philipott v. Philipott, 285 So.2d 570 (La.App.4th Cir. 1973), writ denied, 288 So.2d 643 (La.1974); Davis v. Davis, 258 So.2d 138 (La.App.2d Cir. 1972).

      . Brouillette, Work of the Louisiana Supreme Court for the 1953-1954 Term, 15 La.L.Rev. 267, 268 (1955); Bradway, The Myth of the Innocent Spouse, 11 Tul.L.Rev. 377 (1936-1937).

      . See, e. g., Eals v. Swan, 221 La. 329, 59 So.2d 409 (1952); Snell v. Aucoin, 158 La. 767, 104 So. 709 (1925); Amy v. Berard, 49 La.Ann. 897, 22 So. 48 (1897); Castanedo v. Fortier, 34 La. Ann. 135 (1882); Trowbridge v. Carlin, 12 La. Ann. 882 (1857); Durand v. Her Husband, 4 Mart. (O.S.) 174 (1816).

      . Moore, An Examination of the Recrimination Doctrine, 20 S.C.L.Rev. 685, 696-98 (1969).

      .The legislature has already accomplished this result in the area of separations from bed and board by overruling a long line of jurisprudence which disallowed a separation to both parties when there was equal fault. See, e. g., Schiila-ci v. Schiilaci, supra n. 1, writ denied, supra n. 1; Davis v. Davis, supra n. 1; Maynor v. Maynor, 234 So.2d 426 (La.App.1st Cir. 1970); Wood v. Wood, 227 So.2d 656 (La.App.3d Cir. 1969). It enacted the new Civil Code article 141, La.Acts 1976, No. 495, § 1, which provides in pertinent part:

      . The Court of Appeal described the doctrine of comparative rectitude as operating to bar relief to both litigants when there is mutual equal fault. 349 So.2d at 931. In actuality, it was describing the recrimination doctrine.

      . It has been suggested that Abshire v. Hanks was influenced by the fact that the law at the time would automatically award child custody to the victorious spouse and the courts did not desire an adulteress to obtain custody. Comment, 11 Tul.L.Rev. 95, 111-12, n. 107 (1936).

      . Although the question of alimony was not raised at this time, we note that equal fault by both parties was determined in this proceeding even though it was the wife who obtained the divorce. The fault by each was of a serious nature and an independent contributory cause of the divorce and such that would bar the recovery of alimony under C.C. 160. See Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707 (1958). In Fulmer v. Fulmer, 301 So.2d 622 (La.1974), we held that the determination of fault in a separation proceeding is conclusive of pre-separation fault and cannot be relitigated. To the same effect, determination of fault in a proceeding for immediate divorce is conclusive for purposes of permanent alimony following divorce. Thus, neither party in the instant suit would be entitled to alimony.


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

text:
    STATE of Louisiana v. Mack I. FRANK.
    No. 60641.
    Supreme Court of Louisiana.
    March 6, 1978.

      Wilfret R. McKee, Gilbert E. Stampley, New Orleans, for defendant-respondent.
    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-relator.
   CALOGERO, Justice.

Defendant Mack I. Frank is a Baton Rouge attorney who was charged by bill of information in the Parish of Orleans with 1) theft of $5,473.14 belonging to certain heirs, some of whom he represented (R.S. 14:67), 2) forgery of the signatures of eight heirs (payees) to a $7,848.14 check drawn on the First National Bank of Commerce in New Orleans (R.S. 14:72), and 3) issuing or transferring with intent to defraud a forged writing (the same $7,848.14 check) which he knew had been forged (R.S. 14:72). Defendant chose a bench trial. After two days of trial the state rested. Defendant thereupon moved for a directed verdict of acquittal contending among other things that the state had failed to carry its burden of proving jurisdiction (venue or place of commission of the crime), an essential element of the charge which must be established by the state “beyond a reasonable doubt”. He also filed a motion to quash on the same grounds, that there was no jurisdiction for this trial in Orleans Parish because none of the three crimes charged were committed there.

The trial judge did not rule on the motion for directed verdict, but he did sustain defendant’s motion to quash and dismissed each of the three charges.

We granted writs on application of the state to review the ruling of the trial judge. State v. Frank, 351 So.2d 1209 (La.1977). La.Const. art. V, sec. 5(A) (1974); see also, State v. James, 329 So.2d 713 (La.1976).

In January of 1974 one Sidney Grant died leaving a number of heirs (apparently four in New Orleans and four out of state). Defendant was retained by the out of state heirs to represent them in the succession. Defendant filed the necessary legal pleadings in connection with the succession in the Civil District Court for the Parish of Orleans, apparently a petition for simple possession. Presumably he advised the New Orleans heirs, whom he was not formally representing, of his intention to secure release of the succession funds from the First National Bank of Commerce, and on July 13, 1976 after speaking with two of the heirs he satisfied the bank’s attorney that his judgment of possession was in order and presented himself at the First National Bank of Commerce in New Orleans with a request to receive the $7,848.14, which was the balance in the decedent’s passbook account. At the bank defendant expressed a preference for receiving the funds personally rather than having them mailed to him. The bank representative apparently debited the passbook account, closed it out, presumably gave the passbook to defendant, and coincidentally issued and delivered to defendant a cashier’s check in the sum of $7,848.14 payable to the order of the eight named heirs.

Thereafter, at an unspecified time, defendant forged the signatures of the eight payees to the check. This fact is apparently supported by certain of the evidence presented by the state and conceded, at least for present purposes by defendant.

On July 16,1976 the check bearing the forged signatures of the eight heirs was deposited in defendant’s own account in Capitol Bank and Trust Company in Baton Rouge, Louisiana. Defendant thereupon began drawing for his personal use against the account which contained at least in part the money of the heirs of the succession of Sidney Grant. Defendant did not again communicate with any of the heirs until one of them contacted him and inquired about the succession proceedings. Thereupon (on September 22nd) defendant sent checks to the heirs representing their respective shares of the succession proceeds. Those checks were returned by the bank marked insufficient funds. The worthless checks were not made good. A grocer in New Orleans who accepted the check of one of the heirs repeatedly corresponded with defendant about making the NSF check good, apparently without success. It appears from the district attorney’s brief that defendant did, however, make restitution at the conclusion of the second day of trial.

The sole issue before us is whether the trial judge erred in granting the defense motion to quash as to each of the charges on the grounds of improper venue (or, lack of jurisdiction). Although venue must be proved by the state to the trier of fact beyond a reasonable doubt, C.Cr.P. art. 615, on a pretrial motion a trial judge is not required to find that the crime was committed in the parish by this evidentiary standard, but only that venue is proper by a preponderance of the evidence. For that reason we believe that on a motion to quash ruling during trial he similarly is compelled to find venue proper, and allow the case to go the finder of fact, if he believes that the evidence establishes preponderantly that the crime took place within the court’s jurisdiction. On the other hand, when the trial judge grants a motion to quash on the ground of improper venue, as did the trial judge in this case, he has determined that the state has failed to establish by a preponderance of the evidence that the crime occurred in the parish. In this Court’s review of such a ruling, we must determine whether the trial judge erred in his finding.

Article 611 of the Code of Criminal Procedure provides that “all trials shall take place in the parish where the offense has been committed . . . The same article makes provision for the situation in which an act or element of a given crime has occurred in more than one place by reciting that “the offense is deemed to have been committed in any parish in the state in which any such act or element occurred.”

We must determine whether an act or element occurred in the Parish of Orleans as to each of the offenses. We will first consider the two forgery counts.

Forgery is defined in Louisiana Revised Statute 14:72 as follows:

“Forgery is the false making or altering, with intent to defraud, of any signature to, or any part of, any writing purporting to have legal efficacy.
Issuing or transferring, with intent to defraud, a forged writing, known by the offender to be a forged writing, shall also constitute forgery.”

Defendant was charged in separate counts with forging signatures, proscribed by the first paragraph of the statute, and with transferring a forged writing, proscribed by the second paragraph.

On the evidence as stated previously, there was no evidence whatever that in the Parish of Orleans defendant either forged the payees’ signatures on the reverse of the check or issued or transferred to any person or entity the instrument bearing the forged signatures. The facts would, inferentially at least, support the likelihood that the forging and transferring of the check took place in East Baton Rouge Parish, probably shortly before defendant or someone on his behalf deposited the check in defendant’s account in the Capitol Bank and Trust Company. In any event, the state did not prove that either act took place in Orleans Parish.

The only arguable contention which the state might put forth is that the element of fraudulent intent, a requirement of both forging signatures and transferring a forged writing, constitutes an element of each of the offenses, proof of which may be evidenced by an act or acts occurring before or after the forgery or transfer. In this event the state would contend that occurrences in New Orleans evidencing at the time of forgery or transfer defendant’s fraudulent intent are acts or elements of the offense. The argument might be tenable if the offense required a showing of forging (or transferring) coupled with fraudulent activity. But that is not the case. It is forging (or transferring) with a concomitant state of mind, intent to defraud, which is proscribed by Revised Statute 14:72. The sole act constituting the offense in each case is rather singular in nature. In the contemplation of the statute the exclusive act constituting the offense occurs when the forging or transferring takes place.

Thus, we find that the trial judge was correct in quashing the two forgery counts because the state did not prove by a preponderance of the evidence that these offenses or any constituent act or element thereof occurred in Orleans Parish.

With respect to proper venue on the theft offense, however, we view the matter differently. The crime of theft is statutorily defined as “the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.” R.S. 14:67.

The bill of information simply charges that defendant committed a theft of $5,473.14 belonging to the named heirs. It does not indicate whether the theft charged was a taking without consent or a taking by means of fraudulent conduct, practices or representations. It is evident, however, that it is the latter means of theft which the state proposed to establish.

Unlike our conclusion concerning the forging or transferring of a forged writing that “with intent to defraud” is not a distinguishable or severable act or element of the offense, because not a separate occurrence, a taking by means of fraudulent conduct, practices or representations foreseeably, if not necessarily, contemplates a succession of identifiable acts or occurrences. And one or more of such acts are susceptible of commission “in more than one place, in or out of the parish or state”.

Thus to establish venue in Orleans Parish on this theft charge it is necessary only to establish an act or element, and that act or element might well include the taking, or one or more of defendant’s fraudulent representations, practices or acts.

Hypothetically the theft in this case, assuming that it was indeed committed, might have entailed a series of fraudulent representations, practices or acts commencing as early as defendant’s procuring representation of the heirs and including all that followed. In this event defendant’s receipt of the cashier’s check at the First National Bank of Commerce in New Orleans would be one of the acts constituting the offense, and occurring in Orleans Parish. On the other hand, if his fraudulent design to steal the heirs’ money did not take place until in Baton Rouge, he decided to and did forge the names of the payees to the check, and deposit same to his account, it would not necessarily follow that his earlier receipt of the check in New Orleans, as duly authorized agent and/or attorney for the heirs, would constitute either an unauthorized taking or a fraudulent act.

The trial judge apparently felt that the latter, more than likely, is what occurred in this case or in any event, that the state had not proved the contrary. Assuming that to have been the trial judge’s finding, we are not prepared to hold that he erred in this respect. In fact the state probably did fall short of proving that defendant’s act in receiving the check in New Orleans (or in showing all that gone before) was an act or element of the theft offense.

Nonetheless, even assuming no fraudulent act before defendant’s forging and depositing the check, we find from the transaction no less than one significant occurrence in the Parish of Orleans subsequent to that time which does constitute an act or element of the theft offense. That is the conversion of the heirs’ money which took place when the New Orleans bank’s cashier’s check, after endorsement and deposit in the Baton Rouge bank, was presented in New Orleans to the First National Bank of Commerce for payment. In this holding we follow an earlier opinion of this Court, State v. Cason, 198 La. 828, 5 So.2d 121 (1941). In that case this Court held that an embezzlement was committed in the Parish of East Baton Rouge at the time several $37.50 checks, drawn on the City National Bank of Baton Rouge and cashed in New Orleans, were presented to the Baton Rouge bank for payment and were honored.

That we are here concerned with a cashier’s check rather than another type of check is of no moment pertinent to the relevant dispossession of funds which takes place when the respective checks are presented for payment. Thus closure of the decedent’s passbook account upon issuance and delivery of the cashier’s check did not terminate First National Bank of Commerce’s involvement in the monetary affairs of the heirs. The bank simply transferred decedent’s funds to the bank’s account and promised delivery of the funds upon presentment of the cashier’s check for payment.

For the foregoing reasons we find it unnecessary to determine whether defendant’s acts predating forgery and deposit, or his acts subsequent to the First National Bank of Commerce’s paying the cashier’s check (including the defendant’s sending the heirs his own NSF checks on September 22nd) or any one of them, were occurrences in New Orleans and constituted acts and/or elements of the theft offense. Because the conversion of the heirs’ money actually took place when the New Orleans bank paid out the money, there is jurisdiction to try defendant in Orleans Parish for theft. An act or element occurred there. C.Cr.P. art. 611.

Decree

For the foregoing reason the ruling of the trial judge sustaining the motion to quash and dismissing the two forgery counts is affirmed. The ruling of the trial court sustaining the motion to quash the charge of theft is reversed and the case is remanded for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

SANDERS, C. J., concurs in part and dissents in part with written reasons.

MARCUS, J., concurs in part and dissents in part and assigns reasons.

SANDERS, Chief Justice

(concurring in part and dissenting in part).

I concur in the holding that Orleans Parish is a proper venue as to the theft charge.

I dissent from the holding that Orleans Parish is without venue of the forgery charge. The defendant is charged with transferring a forged writing with intent to defraud. The transfer did not terminate until it was presented to and paid by the bank in New Orleans. Hence, in my opinion, Orleans Parish is a proper venue for the forgery charge also.

MARCUS, Justice

(concurring in part and dissenting in part).

I concur in the reversal of the trial judge’s sustaining the motion to quash the charge of theft. I dissent from the affirmance of the ruling of the trial judge sustaining the motion to quash and dismissing the two forgery counts. I consider that acts or elements of each of the offenses occurred in the Parish of Orleans.

      . Because neither the state nor the defendant deem it necessary or advisable to procure and file here a transcription of the evidence presented by the state at trial (such was essentially the response by counsel for both the state and defendant to a question posed at oral argument), we are somewhat handicapped in reviewing and reciting the facts upon which the trial judge relied in his ruling. The parties apparently agree, however, that there are no major differences between them concerning these facts. We thus glean the facts from the pleadings and memoranda filed in the lower court, the briefs filed in this Court, and a limited stipulation of facts as set out in defendant’s brief.

      . It seems that a portion of the money may have belonged to defendant for his fee and/or costs, for while the check was in the sum of $7,848.14 the theft charged is in the sum of $5,473.14.

      . The article tracks a 1962 amendment of former R.S. 15:13. Before the 1962 amendment adopted this “act or element” test on recommendation of the Louisiana State Law Institute, the requisite showing was the “substantial element” test.

      . “Issue” is defined under our negotiable instruments law in R.S. 10:3-102(l)(a) as “the first delivery of an instrument to a holder or remitter.”

      . C.Cr.P. art. 611 provides:
      “All trials shall take place in the parish where the offense has been committed, unless the venue is changed. If acts constituí-ing an offense or if the elements of an offense occurred in more than one place, in or out of the parish or state, the offense is deemed to have been committed in any parish in this state in which any such act or element occurred.” [emphasis provided]

      . In holding that the crime of embezzlement took place where the funds were actually withdrawn from the bank account, the Cason court stated:
      “The money alleged to have been embezzled from the Department of Labor was not converted when Cason was entrusted with the money in his official position as Commissioner of Labor nor when he put Rieth, Sar-denga and Vlahakis on the payroll of the Department nor when he drew checks payable to their order which were sent to New Orleans and were cashed in New Orleans by Rieth, Sardenga and Vlahakis. The conversion took place and the crime was committed, if at all, in the Parish of East Baton Rouge when the checks payable to Rieth, Sardenga and Vlahakis were presented for payment at the City National Bank of Baton Rouge and were honored by that bank." [emphasis provided] 5 So.2d at 124.

        See also, State v. Smith, 194 La. 1015, 195 So. 523 (1940).

      . “The cashier’s check is simply a bill of exchange or draft drawn by a bank upon itself,” Brady on Bank Checks, § 1.6 (4th ed.); 10 Am.Jur.2d Banks, § 544, and the drawee on a bill of exchange or draft is not called upon to part with the funds unconditionally promised until such draft is presented for payment.
      The only difference between the ordinary check and the cashier’s check is that in the latter the drawee bank is also the drawer and the check is “accepted” upon issuance. Brady on Bank Checks, supra. In each instance, however, the funds are transferred when the check is presented. 10 Am.Jur.2d Banks, § 544.


text:
    STATE of Louisiana v. Clarence Edward ADAMS.
    No. 60651.
    Supreme Court of Louisiana.
    March 6, 1978.

      Gilmer P. Hingle, DeCelle & Smith, Monroe, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Steven A. Hansen, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Clarence Edward Adams was charged with armed robbery, in violation of R.S. 14:64. A unanimous jury of twelve found him guilty as charged and defendant was sentenced, as a second offender, to twenty-five years at hard labor without benefit of parole, probation or suspension of sentence.

On appeal defendant relies upon five assignments of error for reversal of his conviction and sentence, having abandoned three assignments.

Assignment of Error No. 1

Defendant contends that the trial court erred in denying his motion to suppress a .22 caliber pistol taken from his person following his arrest. He argues that the burden of proving the constitutionality of the search and seizure was on the State.

We have recently held that, when the constitutionality of a warrantless search is at issue at a motion to suppress hearing, the State must bear the burden of affirmatively showing that it was justified under one of the narrow exceptions to the search warrant requirement. State v. Franklin, 353 So.2d 1315 (La.1978). At hearing on the motion, the trial judge agreed with defendant that the burden of proving the constitutionality of the search and seizure was on the State. However, defendant’s motion was denied since it did not set forth specific grounds for the seizure’s alleged unconstitutionality; no reasons to support the motion were offered by defendant. No evidence was ever presented at the hearing on the motion; apparently, the witnesses for the State had not arrived in the courtroom.

The record of the trial on the merits reveals that the pistol was seized from defendant’s right front pocket in a search incident to a lawful arrest. Therefore, defendant’s contention that the pistol should have been suppressed was without merit, and it would serve no purpose to remand for a hearing per State v. Simmons, 328 So.2d 149 (La.1976).

Assignment of Error No. 6

Defendant contends that the trial court erred in allowing the State to proceed with the hearing on the motion to suppress prior to the preliminary examination. He argues that he was put in a disadvantageous position in attempting to prove the unconstitutionality of the search and seizure which uncovered the .22 caliber pistol (see Assignment No. 1) since he was unaware of the facts behind the search and seizure; he intended to rely on disclosure of facts during the course of the preliminary examination in order to suppress the evidence.

Defendant’s motion for preliminary examination was filed on April 5, 1977, followed by filing of the motion to suppress and a motion for oyer on April 7. On motion of the State April 21, hearing on all three motions was set for May 5, 1977. Transcript of the May 5 hearing shows that the motion to suppress was taken up first without any defense objection to the order of the proceedings. Thus, in the absence of such an objection, defendant has not properly perfected this issue for appeal. C.Cr.P. 841.

Further, defendant contends the State took contradictory positions when, in the motion to suppress hearing, it denied knowledge of specifics surrounding the search and seizure, and, later, during the preliminary examination, it put on evidence of the search to establish probable cause. Defendant has misinterpreted the arguments made by the State at the motion to suppress hearing. Rather than denying knowledge of facts surrounding the search and seizure, the prosecutor instead argued that defendant’s motion, couched merely in general terms, should state its grounds more specifically.

Defendant’s contentions are without merit.

Assignment of Error No. 2

In this assignment defendant contends that three State witnesses, Officers Beckham, Petty and Poulan, were not present in the courtroom when witnesses were sworn and sequestered and that they were not sworn in before testifying. The record makes the usual recitation, “first duly sworn,” prior to the testimony of each witness. There is nothing to show that there was no swearing of these witnesses other than defendant’s own allegations. In any event, there was no objection made to that fact and thus the issue is not properly before us. C.Cr.P. 841.

This assignment lacks merit.

Assignment of Error No. 4

Defendant assigns error to the trial court denial of an oral motion for a directed verdict of acquittal. This assignment is without merit. With the amendment of C.Cr.P. 778 by La.Acts 1975, No. 525, § 1, the directed verdict in jury trials became unavailable. The trial judge only has such authority in bench trials. See, e. g., State v. Domangue, 350 So.2d 599 (La.1977). Both the offense and the trial occurred after the effective date of the amendment.

Assignment of Error No. 7

Defendant alleges that the trial court erred in ruling him to be a multiple offender, and in enhancing his sentence on that basis, on three grounds.

Defendant contends that due to a discrepancy in the docket numbers between the prosecution for armed robbery and the bill of information charging defendant as a habitual offender, the habitual offender prosecution should have been dismissed.

The proceeding under which defendant was tried for armed robbery was docketed as number 37,667; however, the bill of information charging defendant as a habitual offender was numbered 37,790. During the recidivist hearing on July 6, 1977, defendant objected to the discrepancy in the numbers and the State moved to have the docket number corrected to reflect the proper number as 37,667. On July 8, 1977 an amended bill of information charging defendant as a habitual offender was filed with the corrected number. Defendant now objects to the refiling of the corrected bill, arguing that he should have been acquitted under number 37,790 because the filing of the amended bill would constitute double jeopardy. The deviation in the docket numbers was merely a technical error and did not change the nature of the proceedings into a trial on a new charge. There was only one case and one proceeding.

Defendant contends that the evidence produced at the habitual offender hearing was inadequate to prove he had previously been convicted of a felony.

At the habitual offender hearing, the State offered the following proof to show that defendant had previously been convicted of a felony: (S-l) a fingerprint card from the Ouachita Parish Bureau of Identification made on November 7,1974 showing that a Clarence Edward Adams was arrested November 6, 1974 on a simple burglary charge, pled guilty to theft, and was sentenced to two years in jail; (S-2) a record of additional arrests from the parish bureau of identification on a Clarence Edward Adams showing a March 4, 1977 arrest for armed robbery, along with fingerprints; (S-3) a jail card from the Ouachita Parish Sheriff’s Office on a Clarence Edward Adams dated November 6, 1974 showing an arrest for simple burglary and indicating that that person pled guilty to theft on January 5, 1975 and was sentenced to two years in jail on February 5, 1975; it contained one fingerprint of that individual; (S-4) minutes of court in “State of Louisiana v. Clarence Edward Adams,” docket # 36,470, showing that the man pled guilty to theft of $100 but less than $500 on January 15,1975 and was sentenced to two years in the parish jail on February 5, 1975; and (S-5) minutes of court in “State of Louisiana v. Clarence Edward Adams,” docket # 37,667, showing that defendant was found guilty by a jury (the particular charge or what defendant was convicted of is not indicated in the court minutes) and was sentenced to fifteen years at hard labor without benefit of pardon, probation or suspension of sentence on June 27, 1977.

As this court recently stated in City of Monroe v. French, 345 So.2d 23, 24 (La. 1977):

“In Louisiana, proof that a person of the same name has been previously convicted does not constitute prima facie evidence that the two persons are the same. State v. Curtis, 338 So.2d 662 (La.1976); State v. Curtis, 319 So.2d 434 (La.1975). The state must additionally offer proof that the accused is the same person as the defendant previously convicted. State v. Curtis, cited above, at 338 So.2d 664. See Also Annotation, 11 A.L.R.2d 870, Section 9 (1950) and Later Case Service (1971).”

A fingerprint expert testified that the fingerprints on S-l, S-2 and S-3 were all made by the same individual but was unable to state that the fingerprints belonged to the defendant. The individual who took the prints was not called to testify and no current fingerprints of the defendant were introduced.

However, by the testimony of Deputy Sheriff Norman Knox, Director for the Ouachita Area Multi-Parish Prison, defendant was identified as the man who committed the prior offense. Knox had been Adams’ custodian for two years.

This contention is without merit.

Defendant alleges that even if there is proof that he was previously convicted of a felony, Art. 4, § 5(E)(1) of the Louisiana Constitution of 1974, in particular the automatic pardon provision, disallows the use of that first conviction as a basis for sentencing under the habitual offender statute. Art. 4, § 5(E)(1) provides, in pertinent part:

“ . . .a first offender never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor.”

It is clear that a full complete pardon by the governor precludes the use of a 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). However, the effect of the automatic pardon provision of Art. 4, § 5(E)(1) on habitual offender adjudications has not yet been determined.

We have previously rejected the argument that Art. 1, § 20 of the 1974 Constitution, which restores full rights of citizenship upon termination of state supervision following conviction of any offense, precludes the State from using the prior conviction to enhance a penalty. State v. Selmon, 343 So.2d 720 (La.1977). We reasoned that since no citizen has the right to prevent the use of convictions to enhance punishment for later offenses, the status of innocence is not “restored” by this constitutional provision.

We recognize that there is a difference in the effect of a “pardon” under Art. 4, § 5(E)(1) and restoration of “full rights of citizenship” under Art. 1, § 20. Art. 1, § 20 restores only the basic rights of citizenship, such as the right to vote, work or hold public office. On the other hand, Art. 4, § 5(E)(1) restores privileges as well as rights, such as the privilege of holding a liquor license. That does not mean, however, that the automatic pardon provision restores the status of innocence to the convict who has merely served out his sentence.

In State v. Lee, supra, we stated that “ . . . the pardon restores the original status of the pardoned individual, i. e., a status of innocence of crime.” 171 La. at 746, 132 So. at 219. We also 'quoted with approval a statement made by the United States Supreme Court in Ex Parte Garland, 71 U.S. 333, 380, 18 L.Ed. 366 (1866), that “ . . . when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense.” 171 La. at 747, 132 So. at 220.

A full pardon granted by the governor has presumably been given the careful consideration of several persons who have taken into account the circumstances surrounding the offense, and particular facts relating to the individual. We do not feel, however, that the delegates to the 1973 Constitutional Convention, in including this provision in the 1974 Constitution (or the legislature before them in proposing a similar amendment to Art. 5, § 10 of the 1921 Constitution, La.Acts 1968, No. 662, § 1), intended that service of one’s sentence be the only prerequisite for restoration of the status of innocence. If the legislature had intended that a first offense could not be relied upon for enhancement of punishment, it could easily have said so.

Hence, we hold that the automatic pardon provision of Art. 4, § 5(E)(1) does not preclude consideration of a first felony conviction in adjudicating a person as a habitual offender.

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

SUMMERS, J., dissents with the opinion that pardon restores innocence.

“ . . .a pardon simply restores your rights to vote and to citizenship, but it doesn’t change something that is or was. It doesn’t change the fact that you’re white or you’re black or orange or red or whatever you have. It simply restores you to the rights that you had before. You didn’t have a right before to commit crime, so you still don’t have one in the future to commit it. It has absolutely nothing to do with the multipie offender law and Mr. Richardson, in his comments before our committee, never was able to show anything with respect to that.” Id. at 64, n. 340. (Emphasis added).

      . Defendant’s other allegation, that a State witness was allowed to remain in the courtroom at the beginning of trial despite a sequestration order, was not briefed or argued. Therefore, it is deemed to be abandoned.

      . The trial judge’s per curiam opinion indicates that he took judicial notice of the fact that he was the judge who had sentenced the defendant in 1975 on a guilty plea to theft. We have previously held that a judge has the right to take judicial cognizance of a prior proceeding in which he participated as proof that a particular defendant is the same person as previously convicted. State v. Jones, 332 So.2d 461 (La.1976); State v. O’Day, 191 La. 380, 185 So. 290 (1938). Nevertheless, the trial judge’s per cu-riam in the instant case would not alone have been adequate to identify the defendant. In it he stated:
      “ . . . There also was evidence that the judge who had previously sentenced Defendant is the same person as the writer hereof. This was judicially noted and sentence imposed under the Habitual Offender Law.” The remarks indicate the judge took notice of evidence which showed he was the sentencing judge in the prior case, but he did not state that he remembered the defendant from that prosecution. Judicial notice that a judge’s name appears on the records of a prior conviction will not satisfy the showing required to sentence an individual as a multiple offender. The defendants in the two proceedings must be identified as the same person.

      . This same allegation was presented in State v. Williams, 326 So.2d 815 (La.1976), however in holding that Art. 4, § 5(E)(1) had no retroactive effect, and, thus the defendant’s 1963 conviction could be used to enhance his penalty under the habitual offender statute, we failed to reach the issue.

      . The automatic pardon provision of Art, 4, § 5(E)(1) appears to have been adopted without debate. See State of Louisiana, Constitutional Convention of 1973, Verbatim Transcripts, August 3 and 4, 1973, Vol. VII, 25th day at pp. 91-123; 26th day at pp. 2-43. The effect such a section would have on multiple offender law is reflected by the delegates’ discussion on adoption of Art. 1, § 20. Section 20, as originally suggested, would have provided restoration of “full rights” upon termination of state and federal supervision following conviction of any offense. The section was amended to allow restoration of “full rights of citizenship” following a debate as to the effect the language would have on multiple offender laws and enhanced punishments to persons who had completed their sentences. The debate showed the committee’s intent not to have the fact of conviction erased by service of the sentence. See Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 63-64 (1974). As Delegate Chris Roy explained: