author: DIXON, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Felix Stroud HAMMONTREE.
    No. 61853.
    Supreme Court of Louisiana.
    Oct. 9, 1978.

      Joe J. Tritico, D. Michael Mooney, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T, Salter, Jr., Dist. Atty., Adam L. Ortego, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant Felix Stroud Hammontree was charged by bill of information with negligent homicide, in violation of R.S. 14:32. He was tried before a six person jury which found him guilty of negligent homicide. Subsequently, the court sentenced him to serve five years in the custody of the Louisiana Department of Corrections. Defendant on appeal relies on eleven assignments of error, eight of which were argued.

On June 29, 1977 Mr. Galloway was driving his pickup truck on Interstate 10 westbound near Sulphur, in Calcasieu Parish. Mr. Galloway’s wife was in the cab of the truck with him, and his three sons were asleep in a camper mounted on the back of the truck. At approximately 1:30 a. m. the defendant, also driving his automobile westbound on I — 10, rear-ended Mr. Galloway’s truck. As a result of the collision, Mr. Galloway lost control of his truck; it left the westbound lane, crossed the median, rolled over and came to a stop in an upright position in the eastbound lane of 1-10. While the truck was rolling, the camper was disengaged from the truck and one of the children, Jeff Galloway, received fatal injuries.

Before trial, the trial court granted defendant’s motion to suppress evidence of the blood alcohol test after the State joined in the motion because of various defects in the manner in Which the blood was taken and kept. After the jury was impaneled, but out of their presence, the trial court overruled defendant’s motion to suppress evidence of statements defendant made to officers after the accident. At the trial, the State argued that the defendant’s criminal negligence in operating his vehicle caused the accident and that the defendant was driving while intoxicated and speeding. Defendant did not dispute the fact that he rear-ended Mr. Galloway’s pickup truck or that Jeff Galloway died as a result of the accident, but defendant attempted to rebut the State’s evidence of intoxication by introducing medical evidence that injuries defendant received in the accident could have caused him to appear intoxicated.

Assignment of Error No. 1

Defendant contends that the trial court erred in allowing, on the day of trial, amendment of the bill of information without granting a continuance. Quoting C.Cr.P. 489 and 461, defendant contends that he was prejudiced when the State . amended the bill of information which originally read:

“. . . did kill one Jeff Galloway by the criminal negligent operation of a motor vehicle, viz by driving it while intoxicated and by leaving his proper lane or side of a public highway, ran across same and into the rear of the motor vehicle and into the said Jeff Galloway in violation of LSA R.S. 14:32.”

to read as amended:

“. . . did kill one Jeff Galloway by the criminal negligent operation of a motor vehicle, viz by driving while intoxicated and by running into the rear of a motor vehicle occupied by the said Jeff Galloway, in violation of LSA R.S. 14:32.”

Defendant contends that the amendment substantially changed the charge, and consequently he was forced to change his defense preparation to meet the charge that the accident was simply caused by intoxication.

The trial record shows that the State moved to amend the bill of information prior to the commencement of jury selection and at that time defendant objected but did not ask for a continuance. Defendant did not make “known to the court the action which he desires the court to take,” C.Cr.P. 841, the contemporaneous objection rule. See, State v. Jones, 340 So.2d 563 (La.1976).

If the defendant had properly requested a continuance before the jury was selected, the trial court would not have abused its discretion in denying the request because the defendant has not shown that he was prejudiced by the amendment. C.Cr.P. 489. Defendant bears the burden of establishing that amendment to the indictment prejudiced the defense. State v. Strother, 362 So.2d 508 (1978). The defendant must show in what respect his defense was prejudiced by the amendment before the trial court will grant a continuance. State v. de la Beckwith, 344 So.2d 360, 369 (La.1977); State v. Brown, 338 So.2d 686, 687 (La.1976). The mere allegation by defendant that his defense would be affected by amendment of the bill of information does not constitute such a showing of prejudice as to render the trial judge’s refusal of continuance reversible error. State v. Sharp, 321 So.2d 331 (La.1975). Further, the trial judge has great discretion when deciding whether to grant a continuance, and his decision not to grant a continuance should not be disturbed unless there was an arbitrary or unreasonable abuse of discretion. State v. Harvey, 358 So.2d 1224, 1235 (La.1978).

In the present case, the bill as amended only deleted the allegation of improper lane change; a deletion, rather than an addition, requires less trial preparation. At the time of his objection and in his appellate brief, defendant did not show how his defense was prejudiced by the deletion of the improper lane change charge.

Assignment of Error No. 1 is without merit.

Assignment of Error No. 2

Defendant contends that the trial court erred in overruling his motion to suppress the testimony of the two police officers as to statements made by defendant to the officers soon after the accident. Defendant contends that the State failed to prove beyond a reasonable doubt that defendant was coherent and conscious of what he was saying. In particular, defendant refers to his statement made after the officers had read to him his Miranda rights and on the way to the hospital when defendant admitted to Officer Guillotte that he had had “too damn much” to drink.

In support of his argument, defendant quotes from the cross-examination of Officer Weatherly outside the jury’s presence at the hearing on the motion to suppress:

“Q Did he seem to be in any pain? Did he give any outward indication?
A He appeared not in ... in pain, but he appeared that ... he was incoherent.
Q But he understood your questions, and he was incoherent?
A He stated he did, sir.
Q But your testimony is he was incoherent?
A He appeared to be that way to me, but he stated that he did understand.
Q Incoherent means not understanding, correct?
A That’s correct. He stated he did.” and later:
“Q Did Mr. Hammontree seem somewhat more coherent at that time?
A He seemed incoherent to me, sir. He appeared to be in my opinion intoxicated, but he stated he did, so I would have to take his word for it, and I told him, having these rights in mind, do you wish to talk to us now, and he said yes, and I asked him what happened, and he stated that he had hit something; he didn’t know what had happened.”

As evidence that the State failed to prove that defendant freely and voluntarily made and understood his statements, defendant also refers to four witnesses’ observations that defendant after the accident was not in control of his physical actions and one witness’ testimony that defendant did not know where he was.

This court has frequently held that intoxication will render a confession inadmissible only when intoxication renders the defendant incapable of understanding what he is saying. Most recently this court reiterated this holding in State v. Rankin, 357 So.2d 803, 804-5 (La.1978):

“. . .A confession need not be the spontaneous act of the accused and may be obtained by means of questions and answers. La.R.S. 15:453. Where the free and voluntary nature of a confession is challenged on the ground that he was intoxicated at the time of interrogation, the confession will be rendered inadmissible only when the intoxication is of such a degree as to negate defendant’s comprehension and to render him unconscious of the consequences of what he is saying. Whether intoxication exists and is of a degree sufficient to vitiate the voluntariness of the confession are questions of fact. The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of the testimony relating to the voluntariness of a confession will not be overturned unless they are not supported by the evidence. State v. Hutto, 349 So.2d 318 (La.1977); State v. Adams, 347 So.2d 195 (La.1977).”

See also, State v. Hutto, 349 So.2d 318, 322-23 (La.1977); State v. Adams, 347 So.2d 195, 199 (La.1977). In Rankin, the defendant wanted to suppress his confession that he murdered the victim. In the instant case, the defendant wants to suppress his statement that he had “too damn much” to drink. In effect, defendant argues that he was too intoxicated to confess that he was intoxicated.

In the instant case, other evidence in the trial record supports the trial judge’s conclusion on the credibility and weight of testimony relating to the voluntariness of defendant’s confession. Both the State and defense asked both officers whether defendant understood his Miranda rights and each time both officers testified yes. Officer Guillotte, the second officer at the accident scene, affirmed at the hearing on the motion to suppress that defendant freely and voluntarily conversed with the officers after they read him his rights and testified:

“Q Did Mr. Hammontree seem incoherent to you?
A What do you mean by incoherent? Q Did he seem to understand what you said?
A He seemed to have understood, yes. Q One . . . You . . . You . You testified .
A . Other than when I told him about the wreck. He couldn’t understand that.
Q I can understand that, but did . you . . . you testified he seemed to be quite intoxicated, correct?
A Yes, sir.
Q Most of the time when people are quite intoxicated they are not very coherent, are they?
A Not necessarily. A lot of times there’s people intoxicated that still understand what you’re talking about.
Q So his intoxication was such that it did not .
A . . .He didn’t pass out or anything of that nature, no.
Q Pardon?
A He wasn’t passing out or anything of that nature, no.
Q His intoxication was not such that it made him abnormally incoherent?
A No, sir.
Q He was in control of his faculties?
A Other than his being able to stand on one foot, he couldn’t.”

Officer Guillotte’s testimony clearly supports the trial court’s determination that the defendant’s intoxication was not of such a degree as to negate defendant’s comprehension and to render him unconscious of the consequences of what he was saying.

Assignment of Error No. 2 is without merit.

Assignment of Error No. 5

Defendant contends that the trial court erred in allowing the State to mention in opening and closing arguments that defendant was negligent in driving at excessive speed when speeding was “not put in issue by the bill of information.” Defendant contends also the trial court erred in instructing the jury on speeding when “the matter of speed of defendant’s car was never in issue and was not alleged in the information to be a cause of the accident.” Defendant objected to the trial judge reading to the jury R.S. 32:64 because speeding “was not listed as one of the violations of an ordinance whereby Mr. Hammontree was charged with the crime of negligent homicide.”

The bill of information used in the instant case is the short form specifically authorized in C.Cr.P. 465 which provides: “The following forms of charging offenses may be used, but any other forms authorized by this title may also be used: . 34. Negligent Homicide — A. B. negligently killed C. D.” This short form indictment for negligent homicide gives adequate notice of the nature of the crime and this court has upheld its adequacy in numerous cases. State v. Guillot, 277 So.2d 146, 149 (La.1973). In State v. Coleman, 236 La. 629,108 So.2d 534 (1959), the court affirmed a conviction of negligent homicide where the defendant was found guilty of driving at a speed of 65 to 70 miles an hour in the vicinity of the accident and rear-ending the decedent’s ear. The indictment only charged that the defendant “negligently killed Mrs. Helen Bridges Hyde, in violation of Article 32 of the Louisiana Criminal Code.” Defendant argued on appeal that the indictment did not inform defendant sufficiently of the nature and circumstances of the accusation, but this court found that the short form indictment was sufficient to apprise defendant of the nature of the charge against him, and if defendant desired additional information as to the details of the charge for preparation of his defense, he was entitled as a matter of right to be furnished with a bill of particulars. Coleman, 236 La. at 634, 108 So.2d 534. In State v. Scheler, 243 La. 443, 144 So.2d 389 (1962), the court found the short form indictment for negligent homicide in article 465 legally sufficient, reasoning that sufficient information is contained within the indictment, to enable the accused properly to defend himself; to enable the trial judge to regulate the trial; and to serve as a basis for a plea of former jeopardy.

In the present case, evidence of speeding was properly admitted during trial. Defendant quotes C.Cr.P. 766 which provides that the opening statement of the State shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the State expects to prove the charge. The State’s opening statement did set forth in general terms the evidence of intoxication and speeding by which the State expected to prove the charge of criminally negligent operation of a motor vehicle. Evidence of speeding is probative of the crime of negligent homicide. Coleman, 236 La. at 639, 108 So.2d 534. Speeding can also be part of the res gestae of the crime, and was properly introduced in the State’s opening statement and argued in its closing statement.

There was enough evidence of speeding introduced during the trial for the trial judge to instruct the jury on speeding contrary to the defendant’s contention that the judge instructed “on matters not in evidence.” One eyewitness testified that he was traveling 55 miles an hour when defendant passed him “at a pretty good clip” (which he estimated on cross-examination meant 65 to 70 miles per hour). Mrs. Galloway testified that the truck was traveling at 55 miles per hour when they were struck from behind and pushed, “. . . we were just being pushed . . . the speed was unreal.” Photographs of the vehicles after the accident that were introduced at trial support the charge of speeding. Officer Weatherly testified that his measurements at the accident scene showed the camper top rested 192 feet from the point of impact; this evidence also indicates possible speeding.

Although speeding was not alleged in the bill of information, evidence of speeding was properly admitted at trial, and the judge properly instructed the jury on the violation of R.S. 32:64.

Assignment of Error No. 5 is without merit.

Assignment of Error No. 7

Defendant contends that the trial court erred in allowing witnesses to use dramatic expression, instead of verbal explanation, in their testimony which gave an unfair emphasis to and created an improper impression on the jury. The trial court allowed Officer Weatherly and another witness to act out in front of the jury how defendant acted immediately after the accident, and the defendant contends that it is almost impossible to cross-examine witnesses who testify in pantomime. Defendant quotes from State v. Williams, 346 So.2d 181, 186 (La.1977), where this court stated:

“Where, as here, verbal explanation would suffice, it is the favored mode of communication. With all due respect to Professor Wigmore, dramatic expression calculated to give unfair emphasis and create improper emotional effects can easily occur in criminal cases. . . .”

In Williams, however, this court also quoted the following from 3 Wigmore, Evidence § 789 (Chadbourne Rev.1970):

“ ‘Man does not communicate by words alone, and it may occur that words become inferior to action as a mode of communicating a correct impression of a scene observed. Certainly, in an appropriate case, it is proper and customary for the trial court in its discretion to sanction a departure from the ordinary or verbal medium and permit the witness to make clearer his own observed data by representing them in gesture, dumb-show, or other dramatic mode. Whether it is more useful to do so must depend much on the circumstances of the case. The only general and disfavoring consideration to be noted is that the witness’ dramatic expression may be calculated to give unfair emphasis and create improper emotional effects, but this can rarely occur.’ ”

We concluded in Williams that the defendant was not prejudiced by the demonstration. The record reflected that the witness made no attempt to appeal to emotions of the jury but merely illustrated the relative positions of defendant and the witness during the crime, and this court concluded that defendant was not prejudiced by the display.

Defendant also cites State v. Gray, 351 So.2d 448 (La.1977), where the trial court allowed a nine-year-old rape victim to walk up to defendant and point him out for identification purposes. However, noting that while verbal explanation is preferred when sufficient, this court could not find that the courtroom demonstration employed in the Gray case was so prejudicial as to require reversal.

In the instant case, defendant’s physical state after the accident was relevant evidence. The record does not suggest that the dramatic expression gave unfair emphasis or created improper emotional effect.

Assignment of Error No. 7 is without merit.

Assignment of Error No. 6

Defendant contends that the trial court erred in not granting a mistrial when Officer Weatherly testified about a blood test suppressed before trial. Defendant contends that the testimony was so prejudicial that an admonishment to the jury would not mitigate its effect and would not assure defendant a fair trial.

During testimony of Officer Weatherly, the following exchange occurred:

“Q Did you smell anything when you were near him, sir?
A Yes, sir; he smelled very strongly of an alcoholic beverage, his breath.
Q Did you ask him any other questions, sir?
A I did ask him if he would consent to a blood alcohol test .
MR. MOONEY (defense attorney) Objection, Your Honor.”

The trial judge sustained the objection to mention of the blood test but overruled defendant’s motion for a new trial.

In his appellate brief, defendant quotes at great length from State v. Burchett, 302 S.W.2d 9 (Mo.1957) and cites Commonwealth v. Blose, 160 Pa.Super. 165, 50 A.2d 742 (1947) and Watts v. State, 167 Tex.Cr.R. 63, 318 S.W.2d 77 (1958), all of which are not controlling on this court. The Pennsylvania case involved a prison photograph and the Texas case involved testimony of defendant’s refusal to take a blood test. In Burchett, the principal issue at trial was whether defendant was intoxicated when he was involved in an automobile accident, and the officer testified that he knew defendant was drunk because of the results of the blood test. The Supreme Court of Missouri reversed the conviction. In each of these cases, the statements were more prejudicial to the defendant than in the instant case.

The only Louisiana case defendant cites is State v. Schwartz, 354 So.2d 1332 (La.1978), for the proposition that police officers should be held to the same standard of knowledge of what should be mentioned at trial as judges or prosecutors. But Schwartz involved recurrence of “unresponsive answers,” implicating the defendant in other crimes, by experienced and knowledgeable police officer witnesses.

In the present case, defendant objects that the officer’s testimony gave the jury the impression that the defendant either refused to take a blood test or failed it, either of which would leave a highly unfavorable impression on the jury. However, the officer’s remark was not about the results of the blood test as in Burchett nor about defendant’s refusal to take a blood test as in Watts.

Officer Weatherly had previously testified out of the jury’s presence at the hearing on the motion to suppress defendant’s statements to officers after the accident, and he did not mention the blood test in his previous testimony. The State in brief argues that the mention of the blood test was a surprise, because the State was seeking to have the officer repeat his testimony in front of the jury that defendant admitted he hit something, but he did not know what he hit. The remark in the context of the trial apparently was inadvertent (two words in 270 pages of trial transcript) and unexpected. See State v. Babin, 336 So.2d 780 (La.1976). No further mention of the blood test was made throughout a lengthy trial. See State v. Fowlkes, 352 So.2d 208 (La.1977). This remark, improper as it was, was not so prejudicial as to be cause for a mistrial pursuant to C.Cr.P. 770 which enumerates four grounds for mandatory mistrial.

Assignment of Error No. 6 is without merit.

Assignment of Error No. 8

Defendant contends that his conviction under R.S. 14:32 should be reversed because the negligent homicide statute creates an unconstitutional criminal presumption that when a defendant violates a statute or ordinance he is presumed to be negligent, thus allowing the State to secure a conviction without proving beyond a reasonable doubt every element of the crime. R.S. 14:32 provides:

“Negligent homicide is the killing of a human being by criminal negligence.
The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.
Whoever commits the crime of negligent homicide shall be imprisoned, with or without hard labor, for not more than five years.” (Emphasis added).

Defendant relies primarily on State v. Searle, 339 So.2d 1194 (La.1976), to argue that R.S. 14:32 creates an unconstitutional presumption. Defendant contends that “absolutely no proof was put into evidence” that defendant was speeding and that the State proved negligence, an element of R.S. 14:32, without proving beyond a reasonable doubt that defendant violated a statute or ordinance.

This court, in Searle, 339 So.2d at 1203, stated that in view of the newly emphasized requirements of proof beyond a reasonable doubt of every essential element of the crime with which a defendant is charged, it would be appropriate for the legislature to reexamine all criminal presumptions. However, Searle involved the constitutionality of a judicial extension of R.S. 15:432, the statutory presumption that the person in the unexplained possession of property recently stolen is the thief, and this court did not find the statutory presumption unconstitutional. See also State v. Coleman, 358 So.2d 289, 292 (La.1978), where this court reaffirmed that there is no constitutional defect when the effect of the R.S. 15:432 presumption is shown (by the charge as a whole) only to create an inference.

In State v. Nix, 211 La. 865, 31 So.2d 1 (1947), this court held that the words “presumptive evidence” in R.S. 14:32 meant that violation of a statute would create a rebuttable presumption of criminal negligence, but that the State would still be required to prove beyond a reasonable doubt that the negligent act was the cause of the homicide. This is not a complete answer to the question raised by defendant, who argues that the existence of such a presumption infringes on his constitutional right to remain silent and to require the State to prove his guilt beyond a reasonable doubt even when defendant puts on no evidence to rebut the presumption.

The better interpretation of “presumptive evidence” in R.S. 14:32 is that it creates no legal presumption, but means that the violation of a statute related to the cause of the accident will justify the inference that defendant committed a criminally negligent act. To constitute “criminal negligence,” the offender’s conduct must be a gross deviation below the standard expected of a reasonably careful man. R.S. 14:12. Reasonably careful men are expected to obey safety laws, and it is within the province of the legislature to permit the inference that one who violates a safety law and thereby injures another is guilty of criminal negligence; and if it is proved beyond a reasonable doubt that the criminal negligence was the cause of death, the perpetrator may be guilty of criminal homicide.

In the present case, the trial judge instructed the jury on the presumption but he stressed that the word “only” means that such presumption is merely a rebuttable one and not conclusive. The judge emphasized that the State must prove to the jury’s satisfaction and beyond a reasonable doubt that the defendant was criminally negligent. The judge instructed the jury that the defendant is presumed innocent until each element of the crime is proven and established by the State by competent evidence. Only after stressing the effect of the negligent homicide “presumption” did the judge then instruct the jury on possible statutory violations: driving a motor vehicle at a speed greater than is reasonable and prudent (R.S. 32:64) and driving while intoxicated.

Defendant contends that “absolutely no proof was put into evidence, as it could not be (reference to Assignment of Error No. 5), that defendant was speeding” and concludes that the State, in violation of Searle, was able to prove negligence, one of the elements of negligent homicide without any evidence. However, the record includes evidence of speeding in violation of R.S. 32:64: testimony of several witnesses, photographs, and feet designation of the accident scene. Also, the trial record includes evidence of driving while intoxicated in violation of the law: testimony of several witnesses and defendant’s admission. The jury had evidence from which to infer negligence and the death and its causation were never disputed.

Assignment of Error No. 8 is without merit.

Assignment of Error No. 10

Defendant contends that the trial court erred in not overturning the verdict when the verdict was based only on circumstantial evidence, and that the evidence did not exclude every reasonable hypothesis of innocence. Defendant relies on R.S. 15:438 which provides:

“The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

As a reasonable hypothesis of innocence, defendant presented medical testimony from his treating physician that as a result of the accident defendant received a mild concussion, severe contusion of the kidney, and possible shock. Defendant contends that any one of these injuries could have caused him to appear intoxicated after the accident. Defendant also introduced testimony of his roommate that defendant had an eye problem and as a result his eyes were always red.

Defendant correctly states that the issue of whether circumstantial evidence excludes every reasonable hypothesis of innocence, as required by R.S. 15:438, presents a reviewable issue of law. State v. Schwander, 345 So.2d 1173, 1175 (La.1977), and cases cited therein. Defendant defines circumstantial evidence as evidence of facts or circumstances from which one might infer or conclude the existence of other connected facts.

In the present case, not all of the evidence was circumstantial; direct evidence of intoxication was defendant’s confession to Officer Guillotte:

“Q All right, and what . . . how did you initiate the conversation?
A I had to roll the window because he smelled so strong of alcohol. I asked him, just how much have you had to drink.
Q What was his response, sir?
A I believe I had too damn much.
Q I believe I had too damn much?
A Right.”

Even if this direct evidence of intoxication had been suppressed, the record provides circumstantial evidence of defendant’s guilt sufficient to exclude every reasonable hypothesis of innocence. One witness testified that the defendant’s vehicle was swerving badly prior to the accident, which could cause the jury to infer that defendant’s poor driving was caused by intoxication rather than injuries received after the accident. Several witnesses noted that defendant smelled strongly of alcohol after the accident; even defense witness, defendant’s roommate, affirmed that he could smell alcoholic beverages on the defendant the night of the accident. There was testimony that defendant exhibited symptoms of intoxication, some of which might also be symptoms of shock; except for the fact that defendant had been in an accident, there was no evidence that he actually suffered from shock.

Assignment of Error No. 10 is without merit.

Assignment of Error No. 9

Defendant contends that the cumulative effect of the trial court’s errors, even if such errors individually are considered harmless error, deprived the defendant of a fair trial. Defendant quotes from two federal decisions and two decisions from other state jurisdictions to support his contention. In these cases, the courts found numerous errors in the trial but determined that no single error was sufficiently prejudicial to justify reversal. For example, in Landsdown v. United States, 348 F.2d 405 (CA 5 1965), the trial court admitted into evidence many irrelevant and prejudicial references and insinuations made by the prosecutor. The cumulative effect of these “harmless errors” required reversal.

In this jurisdiction in State v. Sheppard, 350 So.2d 615, 651 (La.1977), the defendant contended that if none of his 110 assignments of error individually warranted reversal of his conviction and sentence, taken together they indicated that defendant did not receive a fair trial. After carefully examining each of the 110 errors alleged, this court found them to be without merit and stated: “We are unwilling to say that the cumulative effect of assignments of error lacking in merit warrants reversal of a conviction.”

The record before us does not support defendant’s complaint of numerous errors.

Assignment of Error No. 9 is without merit.

Assignments of Error Nos. 3, 4 and 11 are neither briefed nor argued and are considered abandoned. State v. Williams, 362 So.2d 530 (1978).

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

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

I respectfully dissent. The negligent homicide statute provides that the violation of a statute or ordinance shall be considered only as presumptive evidence of the criminal negligence element of the crime. The use of the mandatory “shall” does not admit of the exercise of choice or discretion, but requires that such violation be considered presumptive evidence of that element (although admittedly only presumptive evidence). The majority’s opinion recognizes that in State v. Nix, 211 La. 865, 31 So.2d 1 (1947) the term, “presumptive evidence”, in R.S. 14:32 was found to mean that although a rebuttable presumption of criminal negligence would arise, the State would still have to prove that the negligent act was the cause of the homicide. The opinion then notes that the better interpretation of “presumptive evidence” is that it creates no legal presumption, but means only that the statutory violation related to the accident’s cause justifies an inference of commission of a criminally negligent act.

In this case the jury was instructed that the presumption of criminal negligence flowing from a finding that there had been violation of a statute or ordinance was re-buttable and did not deprive the accused of the right of showing by evidence that he was free from criminal negligence even though he has violated a statute or ordinance.

I believe that the overall effect of the instructions to the jury, notwithstanding the restatement of the presumption of innocence and the state’s burden of proving the element of criminal negligence beyond a reasonable doubt after the jury was instructed with regard to the “presumption”, was to wholly relieve the State of showing “gross deviation below the standard of care expected to be maintained by a reasonably careful man”, as required by the terms of the definition of criminal negligence set forth in R.S. 14:12. If reasonably careful men are expected to obey safety laws, every violation of a safety law should not be required to be equated with gross deviation below the reasonable man standard absent the production of evidence rebutting the dictated conclusion.

The jury here was not instructed that an inference of criminal negligence was justified but rather that a presumption of criminal negligence is mandated upon a finding of violation of a law or ordinance, which defense could only subsequently rebut. I believe that the defendant’s right to have the state prove beyond a reasonable doubt every fact necessary to constitute negligent homicide, the crime charged, has been violated in this case.

      . The trial judge read to the jury the following provision from R.S. 32:64:
      “A. No person shall drive a vehicle on the highway within this state at a speed greater than is reasonable and prudent under the conditions and potential hazards then existing, having due regard for the traffic on, and the surface and width of, the highway, and the condition of the weather, and in no event at a speed in excess of the maximum speeds established by this Chapter or regulation of the department made pursuant thereto.”

      . “Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      (1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      (3) The failure of the defendant to testify in his own defense; or
      (4) The refusal of the judge to direct a verdict. An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.” C.Cr.P. 770.

      . “The particular statute that defines the crime of negligent homicide also provides that ‘The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.’ This has reference to criminal negligence, which is an essential element of the crime charged. The use of the word ‘only’ in this part of the law means that such presumption is merely a rebuttable one and not conclusive. The presumption does not deprive the accused of the right of showing by evidence that he was free from criminal negligence even though he has violated a statute or ordinance. This provision of law does not change the rule heretofore mentioned as to the presumption of innocence that attends the accused throughout the trial, for upon its conclusion and after all of the evidence has been presented, in order to convict, the State must have proved to your satisfaction and beyond a reasonable doubt that the defendant was criminally negligent, under the definition of criminal negligence given to you in this charge, and that such negligence was the cause of the killing.”


source: Caselaw Access Project

author: CALOGERO, Justice. MARCUS, Justice

license: Public Domain

text:
    STATE of Louisiana v. Richard CURTIS.
    No. 61877.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Rehearing Denied Nov. 9, 1978.

      John Wilson Reed, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

On February 21, 1975 Victor Graziano was preparing to open his regular Friday check-cashing business in the rear of Trump’s Service Station at the intersection of S. Claiborne Avenue and Toledano Street in New Orleans. He had arrived at the business in his automobile with $8,000.00 in cash and various supplies. He was met there by Jacob Harris, a part-time security guard. Graziano and Harris were in the process of unloading the automobile and entering the building when they were approached by two black males, one armed with a pistol, who indicated that it was a holdup. Harris, startled, dropped the box he was carrying; in an apparent response, the robber with the gun shot Graziano in the hand. The robbers then relieved Harris of his sidearm, grabbed the moneybag containing the $8,000.00, and ran off. During the robbers’ flight there was an exchange of gunfire between them and Graziano. The investigating officers, attempting to trace the path of the robbers’ flight, found the gun used by the robbers, the gun taken from Harris, small droplets of blood on the sidewalk and a witness who had seen two black men jump into a car driven by a third person. The witness had recorded the license plate number and the car was subsequently discovered parked some distance away with blood stains on the seat and door.

In separate bills of information, allotted to separate sections of the Criminal District Court, the appellant Richard Curtis and one Charles Jackson were charged with this armed robbery. The cases proceeded independently and Charles Jackson was tried and convicted in November, 1975. His conviction has been affirmed in this Court, State v. Jackson, 347 So.2d 172 (La.1977). The appellant Richard Curtis was tried by jury on April 6, 1976 and found guilty as charged. He was sentenced as a multiple offender to serve one hundred ninety-eight years at hard labor in the custody of the Louisiana Department of Corrections without diminution of sentence for good behavior. Before this Court, defendant relies upon five assignments of error for reversal of his conviction and sentence. The remainder of defendant’s assignments, not being briefed, are considered abandoned.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error defendant asserts that the court erred in denying defendant’s written motion to suppress identifications. That motion sought to suppress in-court identifications and all pretrial photographic, lineup, show-up and other identifications of the defendant on the grounds that the identification procedures were suggestive, that the pre-trial identifications were unnecessary and impermissible devices to avoid the lineup requirement of counsel mandated by Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) and that the pre-trial identifications are of such doubtful reliability that their admission into evidence would be so prejudicial to the defendant as to deny due process.

The day following the robbery Mr. Grazi-ano, who was hospitalized with a gunshot wound of the hand and wrist, selected defendant Richard Curtis’ photograph from a group of pictures shown him by the police, and, without suggestion or prompting of any kind, positively identified Curtis as the robber who had shot him in the hand and disarmed Harris. Graziano was not able to identify Charles Jackson because he had not seen Jackson’s face at the time of the crime, and only caught sight of Jackson’s back as the latter lifted the bag of money out of the car. Also, at the police lineup held on March 20, a month after the commission of the crime, Graziano identified Richard Curtis.

The police displayed a group of photographs to Jacob Harris on February 25, four days after the armed robbery, and Harris identified the pictures of both Richard Curtis and Charles Jackson as the perpetrators of the instant crime. However, because of illness, Jacob Harris was not able to attend the police lineup on March 20. (Tr. 92 et seq.)

In brief defendant’s attacks with respect to identification deficiencies are leveled at the rulings relative to the identifications and testimony of Jacob Harris. Appellant relies on the fact that according to Harris’ testimony, Harris was told by the police officers who brought him some photographs four days after the commission of the crime, “We think we got them two guys,” which was suggestive, according to appellant, and on the further fact that at a June 4, 1975 police lineup in which Charles Jackson was displayed but Richard Curtis was not Harris identified one Irvin Windham rather than Jackson as one of the armed robbers, and later at Jackson’s trial identified one Joseph Duncan as one of the robbers.

First of all we find no support in the record for the contention that any pre-trial identification was designed to avoid lineup requirements of counsel mandated by Gilbert v. California. See State v. Wallace, 285 So.2d 796 (La.1973). Harris’ exposure to the photographic lineup occurred four days post robbery and before defendant had been arrested. When the police lineup was conducted and the defendant was identified by Graziano, Harris was unable because of illness to attend. The defense contention that the pre-trial identifications by Harris were so unreliable as to deny defendant due process is likewise without merit. The quality of Harris’ testimony was for the jury to assess.

Defendant’s chief reliance is upon Harris’ testimony that at that first photographic lineup the police officers told him “We think we got them two guys.”

First of all we are more impressed with and inclined to believe to be more accurate in this case the testimony of the police officers that no such suggestive statement was made to Harris by them. Even assuming, however, the accuracy of Harris’ testimony, under our jurisprudence there is no merit to the contention. In State v. Knight, 323 So.2d 765 (La.1975) we held that the statement of police officers at the time of identification that they have a suspect does not justify a conclusion that the procedure used was impermissibly suggestive, as common sense would warrant the victim of the crime in believing as much.

Furthermore, there was an independent source for Harris’ in-court identification of Richard Curtis in that Harris was able to get a good, unobstructed look at Curtis during the course of the armed robbery, which occurred in full daylight (around 11:15 a. m.) at close quarters, Curtis’ face not being covered or disguised in any fashion.

Assignment of error number one is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant complains of the court’s restricting defendant’s voir dire by disallowing inquiry of a prospective juror, who had been a recent victim of an armed robbery, into whether she had' also given testimony concerning that armed robbery and concerning identification.

Defense counsel was permitted to determine that the witness in question had been a victim of an armed robbery about one year prior to being called for jury duty in the present case and that she did not believe that having been a victim of an armed robbery would influence her in the present case.

Defense counsel did not before or after the court’s ruling apprise the court of the purpose of the only partially stated and disallowed question which he contends concerned itself with the juror’s prior involvement in a trial involving identification issues.

There is no merit to this assignment.

ASSIGNMENT OF ERROR NO. 3

Defendant here contends that the trial court erred in interfering with and restricting the defense cross examination of Jacob Harris in such a way as to adopt the prosecution’s thesis that the witness’ multiple misidentifications were unimportant to the present case.

Specifically he says that he should not have been shut off when he attempted to cross examine Harris about his prior identifications of two persons as the perpetrators of the armed robbery — Charles Jackson by an in-court identification and Joseph Duncan by a photographic identification. The court erred in shutting off cross-examination of Harris concerning prior mistaken identifications of persons purportedly the robbers, the court’s reason being that those mistakes had taken place in the earlier trial of defendant’s co-perpetrator Jackson. The complaint is well taken. Effort to show the witness’ earlier mistakes as to persons whom he thought were the robbers should have been permitted. However, we do not consider this trial error of sufficient magnitude to warrant reversal of the conviction in light of the fact that independently of this particular effort at cross-examination defendant was permitted to and did establish the point counsel was trying to develop in the disallowed cross-examination. The testimony of Sergeant Orin Mills that Jacob Harris had positively identified Irvin Wind-ham, a fill-in at a June 4, 1975 lineup, established that Harris had made at least one prior mistaken identification. Additionally defense counsel was allowed to read from the transcript of Charles Jackson’s trial portions of Harris’ testimony in which he identified Joseph Duncan from a photograph as one of the individuals who perpetrated the robbery.

There is no merit to this assignment.

ASSIGNMENT OF ERROR NO. 12

Defendant received as a second offender convicted of armed robbery a sentence of one hundred ninety-eight years at hard labor without entitlement of diminution of sentence for good behavior. He contends that the sentence is illegal because cruel, excessive and unusual under Article I, Section 20 of the Louisiana Constitution of 1974. The contention is without merit. See, State v. Cobbs, 350 So.2d 168 (La.1977); State v. Harvey, 329 So.2d 731 (La.1976); State v. Walker, 328 So.2d 87 (La.1976).

ASSIGNMENT OF ERROR NO. 11

In this assignment defendant complains that assuming his sentence of one hundred ninety-eight years is otherwise valid it should not have been without benefit of diminution of sentence for good behavior.

He contends that the statute employed to deny him the opportunity to earn diminution for good behavior was passed by the legislature after commission of the crime for which sentenced and that application of the statute to him constitutes an ex post facto application prohibited by both the United States and Louisiana Constitutions.

The armed robbery took place February 21,1975. As of that date persons sentenced on an armed robbery conviction and other felonies, whether first or multiple offender, were afforded the benefit of diminution for good behavior in the discretion of the director of corrections under the provisions of R.S. 15:571.3(B).

In 1975 the legislature amended R.S. 15:571.3 to provide in subsection C that a person sentenced as a multiple offender after September 15, 1975 could, on order of the court, be denied benefit of diminution of sentence for good behavior. Defendant was convicted in April, 1976 and was sentenced in May, 1976. After the trial judge sentenced defendant to one hundred ninety-eight years, the state moved the court to order that the defendant be denied the benefit of diminution of his sentence for good behavior. The trial judge granted the motion and attached to defendant’s sentence the condition that it would be without benefit of diminution for good behavior.

Very recently this Court had occasion to review a contention similar to that put forth here but as it related to application of the 1977 statute (see footnote one above) which mandated the denial of good time diminution. In State v. Wilson, 360 So.2d 166 (La.1978) we held that applying that 1977 act to a defendant whose offense had been committed prior to its enactment but whose sentence was imposed after the effective date of the law was not an unconstitutional ex post facto application of the law.

The distinction between Wilson and the case under consideration is without a significant difference. The premise in the Wilson opinion was that the statute mandating denial of good time opportunity did “not deprive the class of defendants within its coverage of any vested right to good time.” While that of course is true, our opinion failed to recognize that the retrospective change is not in any right to earned good time but in the right to be eligible to earn good time, that is, the right of the inmate to try to earn a reduction of his sentence.

That the law has been changed to the defendant’s disadvantage, after commission of the crime, is unquestioned. The pertinent inquiry is whether this type of change, of substantial consequence, is the type of retroactive law which is banned by the ex post facto clause.

The language of the United States and Louisiana Constitutions is quite brief. Article I, Section 9 of the United States Constitution provides:

No bill of attainder or ex post facto law shall be passed.

Article I, Section 23 of the Louisiana Constitution of 1974 similarly provides:

No bill of attainder, ex post facto law, or law impairing the obligation of contracts shall be enacted.

In the first United States Supreme Court discussion of the ex post facto prohibition, Justice Chase concluded that the clause proscribes, among other types of laws, “every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Colder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798). In subsequent cases, it has been stated that an ex post facto law is one that “renders an act punishable in a manner it was not punishable when committed.” Fletcher v. Peck, 10 U.S. (6 Cranch.) 87,138, 3 L.Ed. 162 (1810). See Garner v. Board of Public Works, 341 U.S. 716, 735, 71 S.Ct. 909, 95 L.Ed. 1317 (1951). Employing these and similar definitions, courts have held that the clause prohibits legislatures from retroactively increasing punishment for past criminal acts. Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937).

A major principle underlying the ex post facto proscription is that laws which adversely affect individuals who have committed particular past acts fail to provide a fair warning of the extent to which that person can be punished; furthermore, retroactive legislation frustrates reliance upon existing law and does not serve an object of the criminal law by providing guidance for conduct. By proscribing retroactive criminal legislation, Calder and the federal jurisprudence which followed have limited the ends for which the legislature may use the criminal law: the legislature may not punish when no law has been violated and may not use the criminal law for retribution except with prospective application. See generally, 73 Michigan Law Review 1491 (1975).

In applying the ex post facto prohibitions the courts have struck down as unlawful increases in punishment, retroactive changes in the post conviction treatment of individuals. In In re Medley, 134 U.S. 160, 10 S.Ct. 384, 387, 33 L.Ed. 835 (1890) a statute passed subsequent to the offense required that while awaiting execution a defendant remain in solitary confinement in the state penitentiary; the law applicable at the time of the offense provided that while awaiting execution a defendant should simply be confined in the county prison. With execution of the defendant about to take place the United States Supreme Court nevertheless took the occasion to declare unconstitutional, as an ex post facto law, the requirement that the defendant await his death in solitary confinement in the state penitentiary rather than in the county prison. Said the court, in passing,

“. . .it may be said that any law which was passed after the commission of the offense for which the party is being tried is an ex post facto law when it inflicts a greater punishment than the law annexed to the crime at the time it was committed, or which alters the situation of the accused to his disadvantage.” (emphasis added)

In a more recent case, Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937), the United States Supreme Court invalidated a Washington statute as ex post facto legislation which had the effect of making defendant’s punishment more severe because of its effect on the sentence he would serve. The law in effect at the time of his offense provided a penalty of not less than six months and not more than fifteen years. The statute was amended after the offense to require the court to impose a fifteen year sentence, with the parole board having the obligation to set a determinate sentence of no less than six months and no more than fifteen years. The Washington State Supreme Court upheld the statute finding that because the maximum and minimum sentences before and after the offense were the same, the statute did not inflict a greater punishment. Disagreeing with that approach, the United States Supreme Court observed:

“The effect of the new statute is to make mandatory what was before only the maximum sentence. Under it the prisoners may be held to confinement during the entire fifteen-year period. Even if they are admitted to parole, to which they become eligible after the expiration of the terms fixed by the board, they remain subject to its surveillance and the parole may, until the expiration of the fifteen years, be revoked at the discretion of the board or cancelled at the will of the governor. It is true that petitioners might have been sentenced to fifteen years under the old statute. But the ex post facto clause looks to the standard of punishment prescribed by a statute, rather than to the sentence actually imposed. The Constitution forbids the application of any punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer. Kring v. Missouri, supra [107 U.S. 221], 228-229, 2 S.Ct. 443, 27 L.Ed. 506; In re Medley, 134 U.S. 160, 171, 10 S.Ct. 384, 33 L.Ed. 835; Thompson v. Utah, 170 U.S. 343, 351, 18 S.Ct. 620, 42 L.Ed. 1061. It is for this reason that an increase in the possible penalty is ex post facto, Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648; Cummings v. Missouri, supra [4 Wall. 277], 326, 18 L.Ed. 356; Malloy v. South California, 237 U.S. 180, 184, 35 S.Ct. 507, 59 L.Ed. 905, regardless of the length of the sentence actually imposed, since the measure of punishment prescribed by the later statute is more severe than that of the earlier, State v. Callahan, 109 La. 946, 33 So. 931; State v. Smith, 56 Or. 21, 107 P. 980.
Removal of the possibility of a sentence of less than fifteen years, at the end of which petitioners would be freed from further confinement and the tutelage of a parole revocable at will, operates to their detriment in the sense that the standard of punishment adopted by the new statute is more onerous than that of the old. It could hardly be thought that, if a punishment for murder of life imprisonment or death were changed to death alone, the latter penalty could be applied to homicide committed before the change. Marion v. State, 16 Neb. 349, 20 N.W. 289. Yet this is only a more striking instance of the detriment which ensues from the revision of a statute providing for a maximum and minimum punishment by making the maximum compulsory. We need not inquire whether this is technically an increase in the punishment annexed to the crime, see Calder v. Bull, supra, 3 Dali. 390. It is plainly to the substantial disadvantage of petitioners to be deprived of all opportunity to receive a sentence which would give them freedom from custody and control prior to the expiration of the 15-year term.” (emphasis added)

Changes in the availability of parole (In re Griffin, 63 Cal.2d 757, 48 Cal.Rptr. 183, 408 P.2d 959 (1965)), and restrictions on the availability of bail on appeal (Greene v. State, 238 So.2d 296 (Fla.1970)) have run afoul of the ex post facto prohibition. And more directly pertinent, laws effecting retroactive changes in availability of good time benefits have also been found in violation of the ex post facto prohibition. State ex rel. Nelson v. Ellsworth, 142 Mont. 14, 380 P.2d 886 (1963).

In the jurisprudence of this state until the recent Wilson decision there had been no case directly concerning the ex post fac-to law proscription and retroactive laws relative to good time (eligibility for diminution of sentence). There have, however, been analogous cases treating retroactive laws concerning eligibility for parole or probation.

In State ex rel. Woodward v. Board of Parole, 155 La. 699, 99 So. 534 (1924), a defendant, sentenced to life imprisonment under a statute which provided for eligibility for parole, petitioned for relief when a subsequently enacted statute eliminated the eligibility for parole. Relying on In re Medley, supra, this Court found the denial of parole eligibility unconstitutional:

“There can be no doubt but that the right to be considered for a parole, after the expiration of one-third of the actual time required to be served, with the benefit of commutation under other laws (in his case something in excess of three years), was a substantial one; for otherwise he would be compelled to continue at hard labor under the rules of the penitentiary just three times as long as would have been the case, had the board seen fit, after the expiration of the limit fixed by the Act of 1914, to grant him a parole. There can be no comparison between such a condition, and the right to go at liberty and pursue a livelihood under the restrictions of a parole. Of course, the right was not absolute or fixed in the sense that he was bound to be paroled; but the privilege of having his case submitted to the discretion of the board at the proper time did exist; whereas, now, it is entirely taken away, and the board cannot even consider it under the present law.
It would seem clear, therefore, that to give the Laws of 1916 a retrospective effect would operate seriously to his disadvantage, in violation of the inhibition of the Constitution against ex post facto laws.”

And in State v. Bullock, 263 La. 946, 269 So.2d 824 (1972), the state attempted to apply a statute that allowed a jury to impose a life sentence without benefit of parole, probation, commutation or suspension of the sentence. At the time of defendant’s offense, there was no provision allowing the' jury to attach those conditions to the sentence. Finding this to be an ex post facto application of the law, this Court stated:

“Under long established principle, the prohibition against ex post facto laws includes not only those laws which make acts criminal though done before the enactment made them unlawful, but also it prohibits the enforcement of any enactment which changes the punishment so as to inflict a greater punishment than that authorized for the crime when committed. See: Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798), and the similar interpretation uniformly given by later jurisprudence; 1 Antieau, Modern Constitutional Law § 5:133 (1969). ‘The Constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer.’ Lindsey v. State of Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937).
Thus, this court has held that a subsequent enactment which abolished a prior right of parole was null as an ex post facto enactment insofar as applied to persons convicted for offenses committed prior to it. State ex. rel. Woodward v. Board of Parole, 155 La. 699, 99 So. 534 (1924). See also, e. g., Lindsey v. State of Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1934) and In Re Medley, 134 U.S. 160, 10 S.Ct. 384, 33 L.Ed. 835 (1890).
If this same prosecution for a 1966 offense had been remanded or retried prior to enactment of the 1972 act, the defendant had available, if he received a life sentence, the same right to apply for commutation or parole then applicable to all life sentences. The ex post facto prohibitions of our state and federal constitutions forbid applying the 1972 act to offenses committed prior thereto so as to permit the imposition of life sentences subject to more stringent conditions. Thus, in Lindsey v. State of Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937), the United States Supreme Court invalidated a state statute, as ex post facto legislation, which had the effect of making the standard of punishment ‘more onerous’, 301 U.S. 400, 57 S.Ct. 798, through its effect on, inter alia, parole and release eligibility.”

There is no analytical distinction between eligibility for parole (and analogously probation) and eligibility for diminution of sentence through good time. In neither situation is there a vested right. Indeed at the time of commission of the offense in each situation the law simply provides opportunity for an accused later convicted that during the course of serving his sentence he will be able to try to earn early release from confinement. In each case “release eligibility” (a phrase used in Lindsey v. Washington, supra and quoted in State v. Bullock, supra) is significantly affected. These are not “minor changes in the handling of prisoners,” measures which should not automatically trigger application of the ex post facto laws. See 73 Michigan Law Review, 1503.

We therefore conclude that our recent Wilson decision is incorrect and must be overruled. That the change in the law affecting the opportunity to earn a diminished sentence did not deprive a defendant of any vested right to good time does not alter the fact that the statute applies a new punitive measure to a crime already consummated to the detriment or material disadvantage of the wrongdoer (see Lindsey) and that it has the effect of making the standard of punishment “more onerous” through its effect on release eligibility (see Bullock).

Accordingly, applying R.S. 15:541.3(C) in the sentencing of defendant Curtis after, but for a crime committed before, its effective date, violates the ex post facto clauses of the United States and Louisiana Constitutions. The sentence insofar as it is without benefit of diminution of sentence for good behavior is illegal. The case will therefore be remanded to the trial court for a resentencing.

Decree

For the foregoing reasons, the conviction of defendant Curtis is affirmed. The case is remanded to the trial court for resentenc-ing in accordance with law and the opinion of this Court.

JUDGMENT AFFIRMED; CASE REMANDED FOR RESENTENCING.

SANDERS, C. J., dissents adhering to the holding of State v. Wilson, La., 360 So.2d 166 (1978).

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

MARCUS, Justice

(concurring in part and dissenting in part).

I concur in the affirmance of defendant’s conviction. I dissent from the reversal of his sentence and remand for resentencing for reasons set forth in State v. Wilson, 360 So.2d 166 (La.1978).

      . That provision, added by Acts 1975, No. 727, § 1, is now embodied in R.S. 15:571.3(C)(1), with the amendment that it applies only prior to September 9, 1977. In the summer of 1977, the Legislature added yet another provision R.S. 15:571.3(C)(2) providing that multiple offenders sentenced after September 9, 1977 shall in no case be entitled to time off for good behavior. By the terms of the original enactment, R.S. 15:571.3(C), now (C)(1), was applicable only to persons convicted under the multiple offender law after September 15, 1975. Acts 1975, No. 727, § 3.

      . Wilson under the 1975 law, at time of commission, could have, on motion of the state been sentenced without benefit of good time diminution opportunity; no such motion was filed, the judge thus did not deny the opportunity, in his discretion, under the pre-1977 law. Defendant would have been eligible (absent trial judge’s contrary determination) for grant of good time in the discretion of the penitentiary officials except that the 1977 law in effect at time of sentencing mandated no good time. It was for this reason the judge sentenced him without benefit of good time diminution. Defendant Curtis, on the other hand, under the law at time of commission of his offense was unconditionally entitled to the benefit of discretionary good time. But having been sentenced after the 1975 law went into effect by a trial judge who granted the state’s motion to deny him good time, he suffers the same fate as Wilson in that he is denied the opportunity to earn diminution while imprisoned. In both cases, Wilson and Curtis, there has been a denial of the opportunity to earn good time diminution by the application of laws passed after the dates the respective crimes were committed.

      .Absent the trial court’s denying opportunity for diminution on motion of the state, the law would permit a maximum credit of good time of approximately forty-five percent, “twenty-five days per month for time actually served.” R.S. 15:571.4(B)

      . But see Singleton v. Shafer, 313 F.Supp. 1094 (E.D.Pa.1970), a brief United States District Court decision, not appealed, that reached a contrary result.


text:
    Elliott P. BOISDORE v. INTERNATIONAL CITY BANK & TRUST COMPANY.
    No. 63237.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Elliott P. Boisdore applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Orleans. 361 So.2d' 925.

Writ denied. We cannot say the result is incorrect.

CALOGERO, J., would grant the writ.


text:
    Diane Delaney AINSWORTH and Robert A. Ainsworth, III v. Joan Elyse TREADWAY et al.
    No. 63231.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Diane D. Ainsworth and Robert A. Ainsworth, III applying for writ of certiora-ri to the Fourth Circuit Court of Appeal. Parish of Orleans. 361 So.2d 957.

Writ denied.

SUMMERS and TATE, JJ., would grant the writ.


text:
    Isaac JIMCOILY v. The STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, et al.
    No. 63229.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Isaac Jimcoily applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Plaque-mines. 361 So.2d 982.

Writ denied.

TATE and CALOGERO, JJ., would grant the writ.


text:
    Louise LANGENDORF, Stella Trauth, Agnes Roniger, George G. Braquet, Peter E. Braquet, Regina Braquet, Fanny E. Braquet and Louis J. Braquet v. The ADMINISTRATORS OF the TULANE EDUCATIONAL FUND.
    No. 63220.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: The Administrators of the Tulane Educational Fund applying for writ of cer-tiorari to the Fourth Circuit Court of Appeal. Parish of Orleans. 361 So.2d 905.

Writ denied.

SUMMERS and MARCUS, JJ., would grant the writ.


text:
    Gwen DELANEUVILLE, wife of Gene Delaneuville v. Dr. Sidney BULLARD et al.
    No. 63189.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Gwen Delaneuville, wife of/and Gene Delaneuville applying for writ of cer-tiorari to the Fourth Circuit Court of Appeal. Parish of Jefferson. 361 So.2d 918.

Writ denied.

TATE, DIXON and CALOGERO, JJ., would grant the writ.


text:
    Clifford D. PAUL v. NATIONAL AMERICAN INSURANCE CO.
    No. 63155.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Clifford D. Paul applying for writ of certiorari to the First Circuit Court of Appeal. Parish of East Baton Rouge. 361 So.2d 1281.

Writ denied.

SUMMERS and CALOGERO, JJ., would grant the writ.


text:
    Francis Louis FOLSE et al. v. Michalas E. FAKOURI et al.
    No. 63232.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Francis L. Folse, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 361 So.2d 887.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    David H. MASSEY v. Wayne P. PARKER, Registrar of the Bureau of Vital Statistics of the City of New Orleans.
    No. 63222.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Wayne P. Parker applying for writ of certiorari to the Court of Appeal. Fourth Circuit. Parish of Orleans. 362 So.2d 1195.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Lawrence J. AIAVOLASITI v. VERSAILLES GARDENS LAND DEVELOPMENT COMPANY, Edward C. Kurtz, Oliver J. Mayer, Foster Judlin, Louis L. Brothers and Dr. Frank Kruse.
    No. 63219.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Lawrence J. Aiavolasiti applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Orleans. 361 So.2d 964.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    George A. AIAVOLASITI v. Edward C. KURTZ, Oliver J. Mayer, Foster Judlin, Louis L. Brothers and Dr. Frank Kruse.
    No. 63218.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: George A. Aiavolasiti applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Orleans. 361 So.2d 964.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Milford L. FRYAR v. William J. GUSTE, Jr.
    No. 63166.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: William J. Guste, Jr., applying for certiorari, or writ of review to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 361 So.2d 1300.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Lunder E. JOHNSON, Administrator of Succession of Claray Smith v. OCCIDENTAL LIFE INSURANCE COMPANY OF CALIFORNIA.
    No. 63129.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Occidental Life Insurance Company of California, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Washington. 361 So.2d 1297.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


author: SUMMERS, J.,

text:
    STATE of Louisiana ex rel. Calvin R. BRUARD v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 62920.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Calvin R. Bruard, applying for writs of habeas corpus, certiorari, prohibition and mandamus. Parish of Orleans.

Writ granted. The enhanced sentence is vacated and the case is remanded to the trial court for resentencing in the light of State v. Anderson, 349 So.2d 311 (La.1977).

SUMMERS, J.,

While I am of the opinion the writ should be granted, I would place the case on the docket and permit arguments, after which an opinion would be written.


text:
    Dave SANDERSON, Jr. v. Harry J. ATWOOD, Jr., A. J. Graffagnino and A&H Electric, Inc.
    No. 63278.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Dave Sanderson, Jr. applying for writ of review. Jefferson Parish.

Writ granted. Ruling of district court reversed. Case remanded to district court to order defendant corporation to make available all corporate records to plaintiff, since district court has found that plaintiff made showing of requisite ownership under La.R.S. 12:103(D).

SANDERS, C. J., and SUMMERS, J., dissent from the order but would grant and place on the docket for argument.


text:
    STATE of Louisiana ex rel. Edwin C. ROWELL v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63083.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Edwin C. Rowell applying for writ of mandamus. Rapides Parish.

Writ denied. The showing made does not warrant the exercise of this Court’s supervisory jurisdiction. However, it may be implied that applicant was not present at the resentencing. If this is a fact, the right is reserved to applicant to reapply to the trial court for resentencing in accordance with Article 835 of the Code of Criminal Procedure.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana v. Leonard R. SLAY, Wesley L. Slay and Clois Slay.
    No. 63286.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Leonard R. Slay, et al., applying for supervisory or remedial writs. Parish of Red River.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Richard B. Williams, Judge of the 10th Judicial District, Court for the Parish of Red River, to transmit to the Supreme Court of Louisiana, on or before the 17th day of November, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relators herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a day to be fixed by this Court, why the relief prayed for in the petition of the relators should not be granted.


text:
    STATE of Louisiana v. Mark HUGUET et al.
    No. 63301.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Mark Huguet, et al. applying for writs of certiorari, review, mandamus and stay order. Parish of St. Tammany.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Thomas W. Tanner, Judge of the 22nd Judicial District, Court for the Parish of St. Tammany, to transmit to the Supreme Court of Louisiana, on or before the 17th day of November, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relators herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be appointed by this Court why the relief prayed for in the petition of the relators should not be granted.


text:
    Joel T. CHAISSON v. Lanny THOMAS, Charles A. Fergerson, Walter G. Cowan, Ashton Phelps and the Times Picayune Publishing Corporation.
    No. 63320.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Joel T. Chaisson applying for writs of certiorari, prohibition and mandamus. Parish of Orleans.

Writ granted. The ruling of the trial court insofar as it ordered plaintiff to produce all documents requested is vacated. Case is remanded to the District Court to consider the objection to production on its merits, since apparently the trial court did not do so.

DIXON, J., dissents from order.


text:
    STATE of Louisiana ex rel. George Henry LEE v. SIXTH JUDICIAL DISTRICT COURT, PARISH OF MADISON.
    No. 61483.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: George Henry Lee applying for writ of mandamus. Madison Parish.

Mandamus Denied. Application is moot. (Without prejudice to applicant’s right to seek review of ruling on habeas corpus.)

TATE, J., notes that, under the showing made, the applicant is obviously entitled to an evidentiary hearing, which I feel sure this court will order when the applicant re-applies to this court to review the trial court’s ruling.

DIXON, J., would order an evidentiary hearing on the habeas corpus petition.


text:
    STATE of Louisiana ex rel. Courtland DAVIS v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 63357.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Courtland Davis applying for writ of certiorari. Parish of East Baton Rouge.

Writ granted. An evidentiary hearing is ordered to determine if plea bargain was violated, in which case trial judge should either amend the sentence or allow withdrawal of plea.


text:
    Mr. and Mrs. Alfred LAMBERT, Sr. v. DONALD G. LAMBERT CONSTRUCTION CO., Donald G. Lambert, Charles R. Bell and Prestige Casualty Company.
    No. 63206.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Mr. and Mrs. Alfred Lambert, Sr., applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Jefferson.

Granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana ex rel. Shelton Joseph WILLIAMS v. C. Paul PHELPS, Secretary, La. Dept. of Corrections.
    No. 63252.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Shelton Joseph Williams applying for motion to proceed in forma pauperis and writ of rehearing. East Baton Rouge Parish.

Writ granted. The applicant is entitled to the benefit of the good time law while imprisoned on death row. The case is remanded to the district court to determine whether the warden would have granted good time to the applicant, considering his behavior if he had been imprisoned elsewhere than on death row.

SANDERS, C. J., and SUMMERS, and MARCUS, JJ., dissent from the order.


text:
    STATE of Louisiana ex rel. Glen J. TERREBONNE v. William M. JUSTICE, Jr., Clerk of Court, 24th Judicial District Court, Parish of Jefferson.
    No. 63282.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Glen J. Terrebonne applying for writ of mandamus. Parish of Jefferson.

Writ granted; district court is ordered to furnish applicant a transcript of the Boyk-inization; otherwise, the writ is denied.

SUMMERS, J., dissents from grant.


text:
    STATE of Louisiana ex rel. William DOYLE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, Angola, La., and Hon. Israel Augustine, Judge, Section “I”, Criminal District Court, New Orleans, La., and State of La., et al.
    No. 63329.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: William Doyle, applying for writ of mandamus. Parish of Orleans.

Writ granted. It is ordered that the district court conduct a hearing in this matter on or before November 13, 1978.


text:
    STATE of Louisiana v. Richard G. BOKSHAM.
    No. 62433.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Richard G. Boksham, applying for writ of review. Parish of Beauregard.

Writ granted. Case consolidated for hearing on appeals in State v. Bogle, et al., Docket No. 62873.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Leland H. Coltharp, Jr. Judge of the Thirtieth Judicial District, Court for the Parish of Beauregard, to transmit to the Supreme Court of Louisiana, on or before the 24th day of November, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date and time to be fixed by this Court why the relief prayed for in the petition of the relator should not be granted.