author: DENNIS, Justice. DIXON, Justice

text:
    STATE of Louisiana v. Buford McDaniel.
    No. 57923.
    Supreme Court of Louisiana.
    Oct. 14, 1976.
    Rehearing Denied Nov. 23, 1976.

      F. Clay Tillman, Jr., Tillman & Mitchell, Leesville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

On September 19, 1973, the Vernon Parish Grand Jury indicted defendant for the first degree murder of LeRoy Jackson, a violation of La.R.S. 14:30. Defendant’s motion to quash the indictment on the grounds that the first degree murder statute is unconstitutional was granted by the trial court. The State appealed from this ruling and we reversed, remanding the case for further proceedings. State v. McDaniel, 308 So.2d 262 (La.1975). Trial commenced on May 27, 1975, and at its conclusion the jury returned a verdict of guilty of second degree murder. Without observing the legal delay required by La.Code of Criminal Procedure article 873, on the same day that the court denied defendant’s motion for a new trial it imposed the mandatory sentence of’life imprisonment without benefit of parole, probation or suspension of sentence for twenty years. La.R.S. 14:30.1, as added by Acts 1973, No. Ill, § 1. On appeal, defendant relies upon eight assignments of error for reversal of his conviction and sentence. We find no merit in these assignments, but remand for resentencing.

ASSIGNMENT OF ERROR NO. 1

In this assignment defendant renews his attack on the constitutionality of our first degree murder statute on two grounds. First, defendant contends that La.R.S. 14:30, as amended by Acts 1973, No. 109, § 1, permits standardless jury discretion in the imposition of the death penalty and thus violates the Eighth and Fourteenth Amendments to the United States Constitution. This criticism is valid, and was one of the reasons the United States Supreme Court invalidated the statute’s mandatory death penalty. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). However, Roberts found only the sentencing provision unconstitutional, and did not strike down the entire statute or bar prosecutions under it. We have held that Roberts requires new non-capital sentences but not the reversal of convictions obtained under the statute. See State v. Jenkins, 340 So.2d 157 (La.1976). Since defendant was convicted of second degree murder which does not carry a death penalty, his argument and the Roberts decision are inapplicable.

Secondly, defendant reasserts his contention that the statute was passed in a fiscal session of the legislature without the necessary three-fourths majority vote. La.Const. Art. Ill, § 8 (1921). We have already ruled adversely to defendant on this issue and we adhere to our original decision in State v. McDaniel, 308 So.2d 262 (La.1975). There we construed the constitutional provision to require a three-fourths vote of each house to extend the session but only a majority vote of each house for passage of the bill. See also, State v. Reado, 295 So.2d 440 (La.1974).

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant claims that he was prejudiced by the systematic exclusion of women from the grand jury which indicted him in 1973, prior to the decision which found such exclusion unconstitutional. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). He argues that since the petit jury which convicted him in 1975 was properly composed of both men and women as required by the Louisiana Constitution of 1974, the grand jury should have been similarly constituted. This, he claims, is not an argument for the retroactivity of Taylor but for consistency. We find the argument unpersuasive. The system of exclusion in effect at the time of defendant’s indictment is not made more offensive by the fact that it had been eliminated by the time of trial. Furthermore, exclusion of women from jury venires was lawful when defendant was indicted, and since Taylor has not been given retroactive application, defendant has no grounds for complaint. State v. Martin, 319 So.2d 383 (La.1975); State v. Rester, 309 So.2d 321 (La.1975); Daniel v. State of Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975).

ASSIGNMENT OF ERROR NO. 3

This assignment relates to the trial court’s refusal to admit defendant to bail after the indictment against him for first degree murder had been quashed. La.Code of Criminal Procedure article 322 provides that “a person held may invoke the supervisory jurisdiction of the supreme court on a claim that the trial court has improperly refused bail or a reduction of bail in a bailable case.” The issue is neither properly nor timely raised on appeal. Defendant’s conviction and sentencing have rendered the issue moot. La.Const.1974, Art. I, § 18; La.C.Cr.P. art. 314; State v. Bradford, 298 So.2d 781 (La.1974).

ASSIGNMENT OF ERROR NO. 4

Defendant alleges a number of irregularities in the selection of the petit jury: that the trial judge abused his power to excuse jurors; that the judge improperly denied defendant the right to attach absent and unexcused veniremen; and that when the petit jury venire was exhausted, the court did not follow the correct procedure for drawing tales jurors from the general ve-nire. The record, which we have thoroughly reviewed, does not support these allegations.

The court has the authority to excuse veniremen in advance and when this is done for valid reasons there is no conflict with the defendant’s right to have the entire venire present. La.C.Cr.P. art. 783, and Official Revision Comment (b). Here, the court excused a large number of veniremen under article 783, but its reasons were frequently stated and in most cases the decision was based upon the age or illness of a prospective juror. In not a single instance was a frivolous reason given for the excu-sal.

We were initially concerned by the fact that a number of veniremen were “excused under article 783” without further elaboration, because it was impossible to determine from this whether the trial judge had exercised his discretion soundly. At our request, however, the judge supplemented the record to include the specific reasons for his actions, which in our opinion were reasonable. Under these circumstances, we find that defendant has shown no abuse of the court’s discretion.

Defendant also complains that the court repeatedly refused defense counsel’s requests for attachment of those veniremen whom the sheriff had been unable to locate. The record indicates that attachment was requested only once and that the court granted the request and ordered the missing venireman attached.

Finally, defendant claims the record does not contain the requisite order of the court for the clerk of court to draw tales jurors from the general venire box in the manner required by La.C.Cr.P. art. 785(B). The record reflects that the court “ordered the Clerk to draw from the Tales Jury Box the names of 40 persons to serve as Tales Jurors in this case as provided for by law." (Emphasis supplied.) In the absence of any allegation or showing to the contrary, we must presume from the court’s order that the names of the tales jurors were drawn in accordance with the codal procedure.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant alleges that jurors who had been selected and sworn were improperly mingled with prospective jurors, that male and female jurors were separated during recesses, and that during the trial one of the jurors engaged in prohibited communication with someone outside of the proceedings.

Only the latter incident is properly documented: the record reflects that during a brief pause in the proceedings while the jury inspected an item of evidence, one of the jurors was approached by a man who delivered his paycheck and had him sign for it. Generally, jurors must be secluded from outside communication, and upon a separation of the jury in capital cases, misconduct is presumed. State v. Luquette, 275 So.2d 396 (La.1973). In the instant case, however, this presumption was conclusively rebutted by the testimony of the bailiff who stated that he overheard the entire exchange and that it related only to the innocuous matter of the payroll check.

We do not consider the other alleged im-properties, which were first complained of in defendant’s motion for a new trial. The trial court ruled that because defense counsel was aware of the alleged errors prior to the verdict and had failed to move for a mistrial, his objection had been waived. We agree. See State v. Mitchell, 127 La. 270, 53 So. 561 (1910). In Luquette, supra, we held that improper sequestration of the jury was an error patent on the face of the record where a minute entry indicated that the separation had taken place. Here, however, we are presented with quite a different situation: not only is there no indication in the minutes or elsewhere in the record that the jury was separated, but the judge does not recall it and defendant offered no evidence at the hearing on his motion for a new trial that such a separation ever in fact occurred. Defendant’s untimely and unsubstantiated allegations are not sufficient grounds for reversal.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 7

Defendant argues that in preventing two non-sequestered defense witnesses from testifying, the trial court abused its discretion and stifled the defense.

At the outset of the trial the court placed all witnesses under the rule of sequestration; but at that time defense counsel did not anticipate presenting any testimony, and only the State’s witnesses were removed from the courtroom. After the State had rested its case, however, defense counsel attempted to call the court’s minute clerk and the defendant’s son as character witnesses. Both had been present in the courtroom throughout the proceedings and upon objection by the State, the court ruled that they would not be permitted to testify.

La.Code of Criminal Procedure article 764 regulates the sequestration of witnesses:

“Upon its own motion the court may, and upon request, of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may.modify its order in the interest of justice.”

The jurisprudence interpreting this article has held that it vests in the trial judge the authority to disqualify a witness who has violated the sequestration order. State v. Bias, 337 So.2d 426 (La.1976); State v. Holmes, 305 So.2d 409 (La.1974); State v. Barnard, 287 So.2d 770 (La.1974); State v. Coleman, 254 La. 264, 223 So.2d 402 (1969).

The rule of sequestration is intended to insure that a witness will testify as to his own knowledge of the case without being influenced by the testimony of other witnesses, and to strengthen the role of cross-examination in developing the facts. State v. Bias, supra; State v. Holmes, supra; State v. Barnard, supra. In this case the judge was additionally concerned that the jury might think the minute clerk was testifying under the aegis of the court and so accord his testimony undue weight.

We reject defendant’s argument that these witnesses were crucial to the defense. Character “depends upon the general reputation that a man has among his neighbors, not upon what particular persons think of him.” La.R.S. 15:479. By its very nature, then, evidence of a man’s “general reputation” is subject to being given by many members of the community, and defendant might have called others to establish his good character.

Under these circumstances we find no abuse of the trial court’s discretion in excluding these two witnesses.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant’s two motions for a new trial, based upon the alleged errors discussed in the two previous assignments of error, were denied by the trial court after hearings. For the reasons stated above, we find that the court’s rulings were correct.

ASSIGNMENT OF ERROR NO. 8

Defendant contends that the State’s repeated postponements of the trial date denied him his right to a speedy trial.

The indictment charging defendant with murder was returned on September 19, 1973, and the case was originally fixed for trial on February 19, 1974. The most substantial delay in the proceedings was occasioned by the trial court’s granting the defense motion to quash the indictment on April 29,1974, and the State’s appeal of this ruling; this Court rendered its decision reversing that ruling on February 24, 1975 and trial commenced three months thereafter.

Trial was commenced well within the three year statutory limitation provided by article 578 of the Louisiana Code of Criminal Procedure. Furthermore, defendant did not vigorously assert his right to a speedy trial, but rather contributed to the delay by filing numerous motions which retarded the proceedings; and there is no indication that the State deliberately delayed the trial in an effort to hamper the defense. See, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Under these circumstances, we find no deprivation of the right to a speedy trial.

This assignment is without merit.

We note, ex proprio motu, an error patent on the face of the record which requires that the sentence imposed be annulled and set aside. The minutes reflect that the court sentenced defendant on the same day it denied his second motion for a new trial, in violation of La.C.Cr.P. art. 873 which requires a twenty-four hour delay. No waiver of the delay appears from the record.

The statute affords a defendant extra time in which to file further pleadings such as a motion for a new trial or a motion in arrest of judgment. Where this delay is not observed, any sentence so imposed is void. State v. Johnson, 275 So.2d 405 (La. 1973).

We therefore remand the case for resen-tencing and reserve to defendant the right to appeal from the trial court’s adverse rulings, if any, on motions subsequently filed. In the absence of such an appeal, the conviction and sentence will be affirmed.

SUMMERS and MARCUS, JJ., concur.

DIXON, J., dissents with reasons.

CALOGERO, J., dissents for reasons assigned by DIXON, J.

DIXON, Justice

(dissenting).

I respectfully dissent.

Refusing the defendant the right to call two character witnesses was serious error, violative of Art. 1, § 15, La.Const.1974, and cannot be harmless. There is no good reason for sequestering character witnesses, except during character testimony.

       The record does not clearly indicate when the sequestration of witnesses was ordered. However, we are convinced that this was done at the outset of the trial and that defense counsel was aware of it, because prior to making his opening statement he complained that several of the State’s witnesses were present in the courtroom in violation of the rule, and at his request they were removed.


source: Caselaw Access Project

author: SUMMERS, Justice. SANDERS, C. J., SUMMERS, J., MARCUS, J., CALOGERO, Justice

license: Public Domain

text:
    STATE of Louisiana v. Bobby R. SMITH.
    No. 57934.
    Supreme Court of Louisiana.
    Oct. 14, 1976.

      Arthur A. Lemann, III, Supervising Atty., New Orleans, Ernest F. Teitell, Student Practitioner, Loyola Law School Clinic, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Bobby R. Smith was indicted for aggravated rape committed on October 19, 1975. La.Crim.Code art. 42. After a jury trial, Smith was found guilty as charged and sentenced to death. He assigned nine errors. Only four are urged on this appeal.

Assignment 1

Defendant filed a motion to quash on December 15, 1975, alleging that the indictment failed to charge an offense punishable under a valid statute. The death penalty prescribed by Article 42 of the Criminal Code, according to the motion, is not a mandatory punishment because Louisiana law permits the jury to return responsive verdicts of attempted aggravated rape and simple rape to a charge of aggravated rape, and the penalty for those responsive verdicts is not death. For these reasons it is alleged that Article 42 of the Criminal Code is unconstitutional under the holding in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which, defendant contends, requires that the statutory scheme establishing the death penalty must at the very least eliminate the discretionary imposition of the death sentence in order that discriminating practices may not be employed by the jury. Such a practice is permitted by Louisiana’s statutory scheme according to defendant.

We have held that the Furman decision does not require that Louisiana’s responsive verdict system be held unconstitutional. State v. Selman, 300 So.2d 467 (La.1974). See also State v. Hill, 297 So.2d 660 (La. 1974), and State v. Smith, 322 So.2d 197 (La.1975).

In the interim, however, between defendant’s conviction and sentencing and his appeal, the United States Supreme Court has on July 6, 1976 reversed our holding in State v. Selman, supra, see Selman v. Louisiana, - U.S. -, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), and declared the death penalty for aggravated rape in Article 42 of the Criminal Code unconstitutional because of its mandatory character. A plurality of the United States Supreme Court in the Selman case was therefore of the opinion that the imposition and carrying out of the death penalty under Louisiana law constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution.

Nevertheless, since the record in the instant case does not disclose other reversible error, the conviction will be affirmed. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); State v. Thomas, 310 So.2d 517 (La.1975); State v. Spotville, 308 So.2d 763 (La.1975); State v. Edgecombe, 275 So.2d 740 (La.1973); State v. McCauley, 272 So.2d 335 (La.1973). However, the mandate in Selman v. Louisiana, supra, requires that the sentence be vacated. In carrying out this mandate the case will be remanded to the trial court for resentencing in accordance with the procedure prescribed by the majority of this Court in State v. Craig, 340 So.2d 191, and State v. Sledge, 340 So.2d 205, decided by this Court this day.

Unlike the case of State v. Craig and State v. Sledge, where the punishment ordained was imprisonment at hard labor for not less than one nor more than twenty years, the crime in the instant case was committed on October 19, 1975, fully one month after September 12, 1975, the effective date of the new attempt statute, which permits a sentence of imprisonment at hard labor for not more than fifty years for an attempt conviction if the crime attempted is “punishable by death or life imprisonment.” La.R.S. 14:27D(1); Acts of 1975, No. 132, Section 1 (effective September 12, 1975). The legislature obviously intended to impose the most serious penalty available under the law. In this case, although there is a range of up to fifty years, the most serious penalty is fifty years at hard labor. The case will be remanded for resentencing.

Assignment 6

Refusal of the trial judge to suppress as evidence a gun taken by a security guard from defendant at his place of employment, the International Hotel, is the basis of this assignment. Defendant asserts the gun was seized in violation of the Fourth Amendment prohibition against unreasonable searches and seizures.

At the hearing on the motion to suppress, Robert Spitalsky, the security guard, testified that he was employed by the International Hotel as the supervisor of security, and he was so engaged on October 19, 1975, the day of the rape. He testified that he knew both the victim and the defendant, both of whom were also employees of the hotel. In his capacity as security supervisor, Spitalsky was licensed to carry a gun. Upon his arrival at work on the 20th of October, he was told by the police that they were looking for Smith. Spitalsky was asked to detain Smith if he reported for work that day. Smith did report for work at approximately eight o’clock that morning. Spitalsky confronted Smith and asked him if he had a gun, and then, according to the testimony adduced at the hearing, Smith surrendered the gun. Spitalsky used no threats or force to obtain the gun.

In its brief the defense contends that Spitalsky was acting as an agent for the police since he was following their instructions in detaining defendant. In this capacity, the defense argues, Spitalsky should have given Smith the Miranda warnings before questioning him about the gun. Since the defendant was not read his rights by the “police agent”, the argument goes, the seizure was illegal and the gun should be suppressed as evidence.

While it is doubtful that the facts support a conclusion that Spitalsky was a “police agent”, the issue is resolved by determining that the Miranda warnings were not required to detain or disarm defendant. The Miranda decision (384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)) never contemplated that the police, or their agents, must advise first and disarm later. Disarming a suspect is not the type custodial interrogation requiring Miranda warnings.

Furthermore, a review of the record permits a finding that defendant may be considered to have voluntarily surrendered the gun. No struggle ensued, no shots were fired and no threats were employed. Spi-talsky testified that it was his intention to quietly disarm the suspect in order to avoid alarming the other employees of the hotel. Defendant has not contended that he was improperly frisked; he alleges only that Spitalsky just did not give him the Miranda warnings.

This assignment lacks merit.

Assignment 7

At voir dire examination the State’s attorney in questioning prospective jurors inquired whether they had serious doubts that they could return a verdict of guilty to a charge of aggravated rape knowing the defendant would be condemned to death. When the prospective jurors replied that their beliefs and convictions dictated that they could not vote for the death penalty, the State requested that the jurors be excused for cause. Two of those questioned expressed only doubts concerning their convictions on capital punishment.

In all instances the trial judge granted the State’s request and denied defense counsel the right to cross-examine the jurors so excused in an effort to rehabilitate them. This denial, the defense asserts, deprives defendant of his constitutional right to “full voir dire examination of prospective jurors” embodied in Section 17 of Article I of the Louisiana Constitution of 1974.

In addition, defendant takes the position that the refusal of the trial judge to permit defense counsel to question jurors on their scruples toward the death penalty was a violation of defendant’s right to a fair trial guaranteed by the Due Process Clause of the Federal Constitution as interpreted and applied in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). See also La.Code Crim.Pro. art. 768(2).

The decision in Witherspoon stands for the proposition that it is unconstitutional to exclude from the jury in a capital case persons with “qualms” about capital punishment. The Court reasoned there that since a section of the national population did think that the death penalty was wrong, to exclude jurors for such “qualms” would deprive defendant of a fair trial on the question of penalty. There, however, since it was not shown that the jury was biased with respect to the defendant’s guilt, and the conviction was allowed to stand, only the penalty was set aside. A like finding is made in the case at bar. No bias bearing upon defendant’s guilt or innocence is claimed and none is shown by the record.

The sanction of the Witherspoon Case is limited to vacating the death sentence. That identical result is accomplished in the case at bar. Because of the decision in Selman v. Louisiana, - U.S. -, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), we have set aside the death penalty and directed a noncapital punishment. This being the case, the death penalty issue in Wither-spoon raised by defendant is rendered moot.

Assignment 9

Here defendant contends that the trial judge erred by overruling defense counsel’s objection to the recall by the State of one of its witnesses after he had been cross-examined by defense counsel. The basis of the contention is that the witness’ testimony on redirect examination pertained to matters not covered by direct or cross-examination.

Article 765(5) of the Code of Criminal Procedure invests in the trial judge the discretion to permit the introduction of additional evidence prior to argument after presentation of evidence by the State in rebuttal. Thus, while Section 281 of Title 15 of the Revised Statutes provides that redirect examination must be confined to the subject matter of the cross-examination, that statute also makes the application of the rule discretionary with the trial judge if the opportunity be not denied to recross on the new matter brought out on redirect.

Defendant was given the opportunity to recross the State’s witness and did so. The condition of Section 281 was thereby fulfilled and no abuse of the discretion vested in trial judge is shown.

This assignment has no merit.

For the reasons assigned, the conviction is affirmed, and the ease is remanded to the trial court for resentencing.

SANDERS, C. J.,

concurs in the affirmance of conviction, but dissents from sentence.

SUMMERS, J.,

notes that the result reached here expresses the view of a majority of the court with which he does not agree. See dissent to State v. Lee, La., 340 So .2d 180.

DIXON, J., concurs, not agreeing with treatment of assignment # 7.

CALOGERO, J., concurs and assigns reasons.

MARCUS, J.,

concurs in affirmance of defendant’s conviction, but dissents from penalty and dissenting opinion in State v. Craig, La., 340 So.2d 191.

CALOGERO, Justice

(concurring).

I concur in the result only.


author:
DIXON, Justice. SANDERS, C. J., SUMMERS, J.,
      MARCUS, J., SANDERS, Chief Justice

text:
    STATE of Louisiana v. Sonny DAVENPORT and Glenn Edward Richardson.
    No. 57963.
    Supreme Court of Louisiana.
    Oct. 14, 1976.
    Rehearing Denied Nov. 18, 1976.

      John F. DeRosier, Lake Charles, for Glenn Edward Richardson.
    Jap C. Lott, Houston, Tex., James B. Collins, Lake Charles, for Sonny Davenport.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Charles W. Richard, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Sonny Davenport and Glenn Edward Richardson were indicted for first degree murder committed while engaged in an armed robbery on September 6, 1973. On December 6, 1974 a jury found Richardson guilty as charged, and convicted Davenport of second degree murder. Richardson was sentenced to death; Davenport was sentenced to life imprisonment. In brief Davenport argues only three assignments of error: (1) the State failed to prove a theft from the victim; (2) women were unconstitutionally excluded from the grand jury and the petit jury; (3) a mistrial should have been granted for “misbehavior” of the jury during the time when the jury was being selected.

Richardson raises the same assignments of error, in addition to others. The assignments of error will be considered in the order briefed by Richardson.

Assignment of Error No. 1 argues that there was no evidence of a theft of anything of value from the victim, and consequently no evidence of a robbery, which was the element which raised the homicide to the status of first degree murder.

The evidence showed that on September 6, 1973 two young men and two young women left Houston in an automobile belonging to one of the young men, drove to Beaumont and then into Louisiana on the interstate highway. One of the young men (for a reason not explained) had brought his shotgun. Near the Iowa exit on the interstate near Lake Charles they saw a hitchhiker. Richardson told the driver to stop and pick up the hitchhiker, that they would rob and kill him.

When the hitchhiker entered the car Richardson demanded of him some money to pay for gas. Whether the hitchhiker surrendered any money at that time was the subject of conflicting testimony. A few miles down the road the automobile was stopped so some of the occupants could relieve themselves. One witness testified that while two of the young men were outside of the automobile, the hitchhiker bolted from the car and attempted to run. He was tackled by Davenport. Richardson shot him twice with the shotgun. One witness heard the victim holler that he had no more money and plead for his life. One of the witnesses saw Richardson bending over the victim after the shots.

The argument seems to be that no one saw anyone extract money from the victim, and that the only money any witness saw was $2.00 given by the victim to Richardson after Richardson demanded money to pay for gasoline.

The argument is specious. The evidence is clear that the reason for picking up the hitchhiker was robbery. Richardson was armed with a shotgun. There is evidence that something of value was taken from the victim, and the argument that the $2.00 was given willingly is insubstantial.

There is no merit to this assignment.

In Assignment of Error No. 2 defendants argue that their motion to quash, based on a contention that women were excluded from the grand and petit venires, was wrongfully denied. Defendants argue that such exclusion denied defendants their constitutional right to a jury drawn from a fair cross section of the community.

The instant case was tried in December, 1974. In Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42. L.Ed.2d 690 (1975), the court held Louisiana’s exemption for women unconstitutional. However, the Supreme Court determined in Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), that Taylor would not be retroactively applied, as a matter of federal law, to convictions obtained by juries empanelled prior to the date of the Taylor decision. This court has accordingly held that Taylor would not be applied retroactively. E. g. State v. Lockett, 319 So.2d 420 (La.1975); State v. Nicholas, 312 So.2d 856 (La.1975).

There is no merit to this assignment.

Assignments of Error Nos. 3 and 4 concern the validity of the death penalty imposed upon appellant Richardson. In Assignment of Error No. 3 appellant Richardson argues that the death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution. In Assignment of Error No. 4 appellant argues that the death penalty is unconstitutional because the Louisiana system allows the jury to return responsive verdicts and that the first degree murder statute itself is unconstitutional because it was passed in a session of the legislature reserved for fiscal matters.

Insofar as appellant argues that R.S. 14:30 is unconstitutional because it was passed in a session of the legislature reserved for budgetary and fiscal matters, State v. McDaniel, 308 So.2d 262 (La.1975), held to the contrary. In McDaniel this court was presented with the same issue and held that Art. 3, § 8, Louisiana Constitution of 1921, is not violated as long as “there was a three fourths vote to extend the session and a majority vote for final passage of the statute.” 308 So.2d at 263. This contention is therefore, without merit.

In Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), the United States Supreme Court held:

“Accordingly, we find that the death sentence imposed upon the petitioner under Louisiana’s mandatory death sentence statute violates the Eighth and Fourteenth Amendments and must be set aside. The judgment of the Supreme Court of Louisiana is reversed insofar as it upheld the death sentence imposed upon the petitioner and the case is remanded for further proceedings not inconsistent with this opinion.” (Emphasis added.) 428 U.S. at 336, 96 S.Ct. at 3008,49 L.Ed.2d at 983.

Therefore, although Roberts mandates a reversal of the death sentence, since the record reveals no other reversible error, the conviction is affirmed. E. g. State v. Lee, La., 340 So.2d 180 (decided Oct. 14, 1976); State v. Jenkins, La., 340 So.2d 157 (decided Oct. 14, 1976); State v. Thomas, 310 So.2d 517 (La.1975).

In accordance with Lee and Jenkins we must remand the case for the resentenc-ing of Richardson to the most serious penalty for a lesser included offense. In 1973 the legislature enacted the second degree murder statute, R.S. 14:30.1, added by La. Acts 1973, No. Ill, § 1, which was applicable on the date of this offense. In addition, C.Cr.P. 814 was amended by La.Acts 1973, No. 126, § 1, to make second degree murder a responsive verdict to a charge of first degree murder. Therefore, the case is remanded, insofar as it pertains to Richardson, for resentencing of the defendant to imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years (the applicable penalty for a violation of R.S. 14:30.1 at the time of the commission of this offense). State v. Jenkins, supra.

Assignment of Error No. 5 complains of an event which transpired in the hallway of the courthouse after court had adjourned. Seven jurors had been selected. The defendants were handcuffed and taken into the hallway. The defendants contend that some of the jurors in the hallway began laughing and pointed to the handcuffed defendants. The trial judge properly heard testimony because of the contention that there had been jury misconduct which might have reflected on the ability of the jurors to give the defendants a fair trial. The only facts that were developed were that the defendants saw jurors laugh and there was some pointing at handcuffs. The deputies in whose charge the defendants were saw neither laughter nor pointing. The defendants could not say what was causing the laughter, nor who, if anyone, was the object of the laughter. The defendants did not mention the occurrence to the deputies. The defendants were given an opportunity to examine one of the jurors who had been identified as one of those who laughed and pointed. The defense declined to investigate the matter further.

The trial judge found no showing of misconduct on the part of the jury, and no indication that the jurors could not or would not give the defendants a fair trial. His ruling was correct.

There is no merit to this assignment.

In Assignment of Error No. 6 defendant Richardson complains that the trial court erred in refusing to re-examine defendant after arraignment. The record reflects that defendant entered a plea of not guilty and not guilty by reason of insanity. Thereafter the court ordered a sanity commission to examine the defendant as to his present capacity to stand trial and his sanity at the time of the commission of the offense. After a hearing the trial court concluded that defendant was competent to understand the proceedings against him and assist his counsel and that he understood the natural and probable consequences of his act. Defendant argues that before his first counsel was relieved of his duties he requested a re-examination of defendant alleging that a new medical report contained evidence of insanity favorable to the defense.

The appointment of a sanity commission rests in the sound discretion of the trial judge and his ruling thereon will not be disturbed absent a clear showing of abuse. E. g. State v. Link, 301 So.2d 339 (La.1974). Neither defense counsel’s motion for a reexamination nor the report he alleged showed defendant’s insanity appears in the record. Under these circumstances we hold that the record does not reflect any error in the trial judge’s ruling.

This assignment of error lacks merit.

The final assignment of error by defendant Richardson complains that the court allowed appointed counsel to “rest its case” without presenting any evidence of insanity and without withdrawing the plea of not guilty by reason of insanity. The argument is made that the “situation” is contrary to the ruling of this court in State v. Clark, 305 So.2d 457 (La.1975). State v. Clark is wholly inapplicable. There, the defendant had moved to withdraw his plea of “not guilty and not guilty by reason of insanity” and enter a plea of “not guilty” before the start of the trial. Upon a proper showing, it may be error for the trial court to refuse to permit the defendant to withdraw his plea of insanity and enter a simple plea of “not guilty.” In the case before us, however, there was no effort whatsoever by the defendant to withdraw the plea of insanity. There is no contention that the failure of his lawyer to either move to withdraw the plea of insanity or present evidence at the trial of the case was in some way prejudicial to the defendant. The argument is simply but erroneously made that the procedure is contrary to State v. Clark, supra.

There is no merit to this assignment.

For these reasons, the conviction and sentence of Sonny Davenport are affirmed. The conviction of Glenn Edward Richardson is affirmed. The sentence of Glenn Edward Richardson is set aside, and, as to him, the case is remanded to the district court for sentencing in accordance with State v. Jenkins, La., 340 So.2d 157 decided Oct. 14, 1976.

SANDERS, C. J.,

concurs in the affirmance of the conviction but dissents from the sentence and assigns written reasons.

SUMMERS, J.,

concurs in the convictions but dissents from the holding on penalty for the reasons assigned in the dissent in State v. Lee, La., 340 So.2d 180.

MARCUS, J.,

concurs. Regarding penalty directed for Richardson, see his concurring opinion in State v. Jenkins, 340 So.2d 157 (La.1976).

SANDERS, Chief Justice

(concurring in affirmance of conviction but dissenting from the sentence). /

I agree with Mr. Justice Summers (See his dissent in State v. Lee, La., 340 So.2d 180.) that in adjusting to the decision of the United States Supreme Court in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), we need only remand the case for a sentence hearing by a jury to determine whether capital punishment should be imposed. In 1971, I advocated such a procedure following the United States Supreme Court decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). See my dissent in State v. Shaffer, 260 La. 605, 257 So.2d 121 (1971).

In my opinion, such a procedure would be more consistent with legislative policy. It also has a sound basis in our procedural code and judicial decisions. See LSA-C. Cr.P. Art. 3; State v. Rasheed, 248 La. 309, 178 So.2d 261, cert. denied 384 U.S. 1012, 86 S.Ct. 1962,16 L.Ed.2d 1031; State v. Davidson, 248 La. 161,177 So.2d 273 (1965); State v. Rideau, 246 La. 451, 165 So.2d 282 (1964).

For the reí'.sons assigned, I respectfully concur in the affirmance of conviction but dissent from the sentence.


author: CALOGERO, Justice. SUMMERS, J., MARCUS, J.,

text:
    STATE of Louisiana v. Kenneth David SKELTON.
    No. 58072.
    Supreme Court of Louisiana.
    Oct. 14, 1976.

      A. Deutsche O’Neal, Jr., O’Neal & Ryan, Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara A. Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., James L. Alcock, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant was indicted by a grand jury in Terrebonne Parish on a charge of having committed first degree murder, on December 17, 1974, a violation of R.S. 14:30(1). Defendant was tried by a jury of twelve and found guilty as charged. He was sentenced on December 17, 1975, to receive the death penalty.

On December 17, 1974 Kenneth Skelton was working as a roustabout for a fair that had recently entered the Parish. During the early evening hours on this date, Kenneth met John Quinealty and Kent Carson on the fair ground. While there the three began drinking and smoking pot. At some time during the course of their meeting, they decided to commit a robbery in order to obtain some money to take a trip. The scheme was essentially for the three to hitchhike and rob the first person who offered them a ride. Quinealty, on signal, was to produce an unloaded gun and demand the victim’s money. If the victim resisted, Skelton was to use the loaded gun on him.

In furtherance of their scheme, Carson went to his house and got an unloaded pistol. Quinealty, meanwhile, went to his home and took his father’s loaded pistol. The three then reunited on the fair ground and continued drinking.

At approximately 8:00 p. m., the three started walking down a highway and were shortly offered a ride by Larry Joseph who, at that time, was on his way home. By this time defendant had the loaded pistol and Quinealty had the unloaded gun. Upon entering the victim’s automobile, the defendant seated himself behind the driver, Carson sat next to him on the back seat, and Quinealty sat in the front seat. A short time later, Carson asked the driver, Joseph, to pull over so he might relieve himself. Joseph complied with the request and came to a stop.

Defendant Skelton thereupon pulled out the loaded gun and shot Joseph in the back of the head. The car lurched forward and continued to roll until it hit a tree at the edge of a bayou. The three young men then got out of the car and ran into a nearby field where they remained until flushed out by an oil company security guard. They returned to the highway and were later picked up by a sheriff’s unit.

ASSIGNMENT OF ERROR NO. 1.

Defendant contends the trial court erred in excusing for cause two prospective jurors. Defendant does not argue that, as per the provisions of article 798 of the Code of Criminal Procedure (adopted on the heels of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)) the jurors were not properly excluded. And, of course, it is appropriate that he should not so argue inasmuch as the record makes it evident that these two witnesses unequivocally stated that they could not bring in a guilty verdict in a capital case because of their conscientious scruples against imposition of the death penalty.

Even were the jurors to have been improperly challenged under article 798 the matter would be moot, in view of the fact that defendant’s death sentence in this case must be reduced in light of the United States Supreme Court decision in Roberts v. State of Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), invalidating Louisiana’s death sentence for murder. See State v. Frezal, 278 So.2d 64 (La.1973); State v. Richmond, 278 So.2d 17 (La.1973).

What defendant argues here, however, is that the court’s ruling excusing the two jurors deprived defendant of a trial by his peers since a fair cross-section of the population was not properly represented on the petit jury which was charged with determining his guilt or innocence.

There is no merit to defendant’s position. Even if we were to assume that the issue was properly preserved at trial for our review, and if we were to assume that defendant’s position in this regard has merit, he is not in a position to complain inasmuch as the transcript shows that the state used only one of the twelve peremptory challenges allowed to it by law. Under the provisions of article 800 of the C.Cr.P. “the erroneous allowance to the state of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the state of more peremptory challenges than it is entitled to by law.” State v. Michel, 225 La. 1040, 74 So.2d 207 (1954); State v. Raymond, 258 La. 1, 245 So.2d 335 (1971).

ASSIGNMENT OF ERROR NO. 2.

Defendant argues that the trial court erred in allowing the prosecuting attorney to make statements in closing argument designed to appeal to the prejudice of the jury. The prosecutor had referred to the murder as “an execution, a cold blooded murder.” He likened it to executions we see on television “where the victim is trussed up and a bullet put in the back of his head.”

Whatever the merit of the defense position that the argument was impermissible, we may not properly consider it inasmuch as defendant did not object at any time to the remarks made in closing argument by the prosecuting attorney. Article 841 of the Louisiana Code of Criminal Procedure in relevant part provides:

“An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.”

See also State v. Morris, 261 La. 1069, 262 So.2d 324, 325.

Article 841 of the Code of Criminal Procedure and the jurisprudence in interpreting that article requires a complaining party to make a contemporaneous objection. Counsel’s argument in brief that he was unaware of the prejudicial effect this statement had upon the jury until after the transcript was filed is to no avail.

The assignment does not have merit.

ASSIGNMENT OF ERROR NO. 3.

Defendant assigns as error the trial court’s refusal to grant his motion for a new trial. His argument is two-fold. First, he asserts that the state failed to prove a specific criminal intent to kill. He argues “that there is sufficient evidence in the record to show that he was so intoxicated and so far under the influence of narcotics that his specific intent was diminished.”

In State v. Plummer, 281 So.2d 716 (La. 1973), we stated:

“[2, 3] LSA-C.Cr.P. Art. 851(1) permits the trial judge to grant the defendant a new trial if the verdict rendered by the jury is contrary to the law and the evidence. This power is exclusively that of the trial judge when inquiry is directed to the alleged insufficiency of the evidence (as contrasted with no evidence at all). This Court is prohibited from reviewing questions of fact in criminal cases. LSA-Const. Art. VII, Sec. 10; LSA-C.Cr.P. Art. 858. In accordance with these provisions, we have uniformly held that a bill of exceptions reserved to the refusal of the trial judge to grant a motion for a new trial based on Article 851(1), relative to sufficiency of the evidence presents nothing for our review. State v. Crockett, 262 La. 197, 263 So.2d 6 (1972); State v. Williams, 262 La. 160, 262 So.2d 507 (1972); State v. Landry, 262 La. 32, 262 So.2d 360 (1972); State v. Singleton, 252 La. 976, 215 So.2d 512 (1968); State v. Stokes, 250 La. 277, 195 So.2d 267 (1967).”

See also State v. Jack, 332 So.2d 464 (La. 1976); State v. Vince, 305 So.2d 916 (La. 1974).

Inasmuch as there was some evidence to prove specific intent to kill, and inasmuch as the adverse ruling of the trial judge on sufficiency of evidence is not reviewable by this Court, the argument lacks merit.

Second, defendant argues he should have been granted a new trial because a member of the jury panel that tried him was a deputy sheriff for Terrebonne Parish (this fact had not been revealed during voir dire examination). An evidentiary hearing was held by the trial court to determine the merit of defendant’s argument. It was discovered that the juror complained of was commissioned as a deputy eleven months prior to trial; that the commission was issued for the sole purpose of allowing the juror to carry a gun while in the possession of large sums of money in connection with his business; that he received no salary and no uniform, and did not ever ride with deputies in the actual performance of their police duties; and that he had never made an arrest under the authority of his commission.

In State v. McClure, 258 La. 999, 249 So.2d 109, 113 (1971), a case presenting facts similar to those in the instant case, we approved the trial court’s failure to grant defendant a new trial and approvingly noted the following language used by the trial judge:

“although [the juror] was an ‘honorary member’ of the Monroe City Police, the latter explained that ‘he had never had any work or other direct association, official or otherwise, with the municipal police department (which was not involved in this prosecution); nor had he ever performed any service for the department or any of its members.’ The judge further observed that ‘His relationship with the department or its work or its personnel was as different from that of numerous other citizens who “carried cards” ’ and that ‘There was no ground for fear of prejudice.’ ”

Defendant apparently argues that the juryman by virtue of his title could not under any circumstances return a fair and impartial verdict based upon the evidence presented.

Reviewing the facts of the instant case and in light of the ruling of this Court in State v. McClure, supra, we find that the assignment lacks merit.

ASSIGNMENT OF ERROR NO. 4.

Defendant complains “that the imposition of the death penalty in this case was cruel, harsh and in violation of the constitutions of the United States and Louisiana.” In view of the United States Supreme Court decision in Roberts v. State of Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), this assignment has merit. For the reasons more fully discussed in our recent opinion in State v. Jenkins et al., 340 So.2d 157 (La.1976), we will remand this case with instructions to the trial court to sentence defendant to life imprisonment without eligibility for parole, probation or suspension of sentence for a period of twenty years, the sentence mandated for second degree murder at the time of the offense.

For the reasons assigned the defendant’s conviction is affirmed but the death sentence imposed upon him is annulled and set aside and the case is remanded to the district court with instructions to the trial judge for sentencing of defendant to life imprisonment without eligibility for parole, probation or suspension of sentence for a period of twenty years.

SUMMERS, J.,

concurs in the conviction but dissents from the penalty holding. See dissent in State v. Lee, La., 340 So.2d 180.

MARCUS, J.,

concurs with penalty directed by majority for reasons assigned in his concurring opinion in State v. Jenkins, 340 So.2d 157 (La.1976).

      . Article 798 of the C.Cr.P. provides in pertinent part:
      “It is good cause for challenge on the part of the state, but not on the part of the defendant that:
      * * * * * *
      (2) The juror tendered in a capital case has conscientious scruples against the infliction of capital punishment;


author: PER CURIAM:

text:
    STATE of Louisiana v. Terry SELMAN.
    No. 54376.
    Supreme Court of Louisiana.
    Nov. 30, 1976.
    LeRoy Smith, Jr., Mulhearn & Smith, Tallulah, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Thompson L. Clarke, Dist. Atty., John T. Seale, Asst. Dist. Atty., J. J. McKenzie, Mitchell B. Lansden, Sp. Counsel to Atty. Gen., Baton Rouge, for plaintiff-appellee.
   PER CURIAM:

Defendant Terry Selman was charged by grand jury indictment with aggravated rape in violation of La.R.S. 14:42. After trial by jury, he was found guilty and was sentenced to death. This Court affirmed his conviction and sentence on appeal, rejecting defendant’s contention that the death penalty provision of La.R.S. 14:42 was unconstitutional. 300 So.2d 467 (La. 1974). The Supreme Court of the United States granted defendant’s petition for cer-tiorari, vacated our judgment with respect to the death penalty, and remanded the case to this Court, U.S. -, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), with the following mandate:

ON CONSIDERATION WHEREOF, it was ordered and adjudged on July 6, 1976, by this Court that the imposition and carrying out of the death penalty in this case constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Roberts v. Louisiana, 428 U.S. [-, 96 S.Ct. 3001, 49 L.Ed.2d-] (1976). The judgment of the Supreme Court of Louisiana in this case is therefore vacated insofar as it leaves undisturbed the death penalty imposed, and that this cause be remanded to the Supreme Court of the State of Louisiana for further proceedings.
NOW, THEREFORE, THE CASE IS REMANDED to you in order that such proceedings may be had in the said cause, in conformity with the judgment of this Court above stated, as accord with right and justice, and the Constitution and the laws of the United States, the said writ notwithstanding.

In accordance with this mandate, the death penalty imposed upon defendant must be annulled and set aside. For the reasons set forth in State v. Craig, 340 So.2d 191 (La.1976); State v. Lee, 340 So.2d 180 (La.1976); and State v. Sledge, 340 So.2d 205 (La.1976), we have concluded that the appropriate sentence to be imposed upon a valid conviction for aggravated rape is the most severe constitutional penalty established by the legislature for a lesser included offense at the time the crime was committed. See La.C.Cr.P. art. 814, as amended by Acts 1973, No. 126, § 1. In the instant case, the offense was committed on September 1,1973, at which time attempted aggravated rape was punishable by imprisonment for not more than twenty years, La.R.S. 14:27 D(l), and simple rape carried a penalty of one to twenty years. La.R.S. 14:43. The legislature obviously intended to impose the most serious penalty available under the law. In this case, the most serious penalty is twenty years at hard labor.

Accordingly, for the reasons assigned in our original opinion defendant’s conviction is affirmed, but the death penalty imposed is annulled and set aside, and the case is remanded to the district court, with instructions to resentence defendant to imprisonment at hard labor for a period of twenty years.


text:
    STATE of Louisiana v. Lawrence T. WATTS.
    No. 56229.
    Supreme Court of Louisiana.
    Nov. 30, 1976.

      Garland R. Rolling, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Edward M. Leonard, Jr., Walter J. Senette, Jr., Asst. Dist. At-tys., for plaintiff-appellee.
   PER CURIAM:

Defendant Lawrence T. Watts was charged by grand jury indictment with aggravated rape in violation of La.R.S. 14:42. After trial by jury, he was found guilty and was sentenced to death. This Court affirmed his conviction and sentence on appeal, rejecting defendant’s contention that the death penalty provision of La.R.S. 14:42 was unconstitutional. 320 So.2d 146 (La. 1975). The Supreme Court of the United States granted defendant’s petition for cer-tiorari, vacated our judgment with respect to the death penalty, and remanded the case to this Court, U.S. -, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), with the following mandate:

ON CONSIDERATION WHEREOF, it was ordered and adjudged on July 6, 1976, by this Court that the imposition and carrying out of the death penalty in this case constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Roberts v. Louisiana, U.S. [-, 96 S.Ct. 3001, 49 L.Ed.2d 1212] (1976). The judgment of the Supreme Court of Louisiana in this cause is therefore vacated insofar as it leaves undisturbed the death penalty imposed, and that this cause be remanded to the Supreme Court of the State of Louisiana for further proceedings.
NOW, THEREFORE, THE CAUSE IS REMANDED to you in order that such proceedings may be had in the said cause, in conformity with the judgment of this Court above stated, as accord with right and justice, and the Constitution and laws of the United States, the said writ notwithstanding.

In accordance with this mandate, the death penalty imposed upon defendant must be annulled and set aside. For the reasons set forth in State v. Craig, 340 So.2d 191 (La.1976); State v. Lee, 340 So.2d 180 (La.1976); and State v. Sledge, 340 So.2d 205 (La.1976), we have concluded that the appropriate sentence to be imposed upon a valid conviction for aggravated rape is the most severe constitutional penalty established by the legislature for a lesser included offense at the time the crime was committed. See La.C.Cr.P. art. 814, as amended by Acts 1973, No. 126, § 1. In the instant case, the offense was committed on January 16, 1974, at which time attempted aggravated rape was punishable by imprisonment for not more than twenty years, La.R.S. 14:27 D(l), and simple rape carried a penalty of one to twenty years. La.R.S. 14:43. The legislature obviously intended to impose the most serious penalty available under the law. In this case, although there is a range of from one to twenty years, the most serious penalty is twenty years at hard labor.

Accordingly, for the reasons assigned in our original opinion defendant’s conviction is affirmed, but the death penalty imposed is annulled and set aside, and the case is remanded to the district court, with instructions to resentence defendant to imprisonment at hard labor for a period of twenty years.


text:
    STATE of Louisiana v. Stanislaus ROBERTS.
    No. 56090.
    Supreme Court of Louisiana.
    Nov. 30, 1976.
    Jack W. Caskey, James E. Williams, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., James L. Babin, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM:

Defendant Stanislaus Roberts was charged by grand jury indictment with first degree murder in violation of La.R.S. 14:30. After trial by jury, he was found guilty and was sentenced to death. This Court affirmed his conviction and sentence on appeal, rejecting defendant’s contention that the death penalty provision of La.R.S. 14:30 was unconstitutional. 319 So.2d 317 (La. 1975). The Supreme Court of the United States granted defendant’s petition for cer-tiorari and reversed our judgment “insofar as it upheld the death sentence imposed upon the petitioner . . . .” 428 U.S. at 336, 96 S.Ct. at 3008, 49 L.Ed.2d 974 (1976). The ease was remanded to this Court with the following mandate:

ON CONSIDERATION WHEREOF, it was ordered and adjudged on July 2, 1976, by this Court that the judgment of the Supreme Court of Louisiana in this cause be reversed, and that this cause be remanded to the Supreme Court of the State of Louisiana for further proceedings not inconsistent with the judgment of this Court.
NOW, THEREFORE, THE CAUSE IS REMANDED to you in order that such proceedings may be had in the said cause, in conformity with the judgment of this Court above stated, as accord with right and justice, and the Constitution and laws of the United States, the said writ notwithstanding.

In accordance with this mandate, the death penalty imposed on defendant must be annulled and set aside. For the reasons set forth in State v. Jenkins, 340 So.2d 157 (La.1976), we have concluded that the appropriate sentence to be imposed upon a valid conviction for first degree murder is the most severe constitutional penalty established by the legislature for criminal homicide at the time the offense was committed. See La.R.S. 14:29 et seq. In the instant case, the offense was committed on August 18, 1973, at which time the most severe valid penalty for homicide was imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years. See La.R.S. 14:30.1, as added by Acts 1973, No. Ill, § 1.

Accordingly, for the reasons assigned in our original opinion, defendant’s conviction is affirmed, but the death penalty imposed is annulled and set aside, and the case is remanded to the district court, with instructions to resentence defendant to imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years.


author: SANDERS, Chief Justice. DENNIS, Justice

text:
    LOUISIANA STATE BAR ASSOCIATION v. Lloyd E. HENNIGAN.
    No. 55436.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearing Denied Dec. 10, 1976.
    Alfred A. Mansour, Alexandria, Martin S. Sanders, Jr., Winnfield, for defendant-respondent.
    Henry A. Politz, Shreveport, Chairman, Wood Brown, III, New Orleans, Sam J. D’Amico, Baton Rouge, Leonard Führer, Alexandria, Harold J. Lamy, New Orleans, Edgar H. Lancaster, Jr., Tallulah, John F. Pugh, Thibodaux, A. Russell Roberts, Me-tairie, John B. Scofield, Lake Charles, Thomas 0. Collins, Jr., New Orleans, for petitioner (plaintiff).
   DISBARMENT PROCEEDING

SANDERS, Chief Justice.

The Louisiana State Bar Association, through its Committee on Professional Responsibility, instituted this disbarment proceeding against Lloyd E. Hennigan, a member of the bar of this State. The Committee’s petition relies upon the authority of Section 8 of Article 15 of the Articles of Incorporation of the Louisiana State Bar Association, effective September 1, 1971, and is based upon respondent’s conviction in federal court for conspiracy to commit mail fraud in violation of 18 U.S.C. § 1341. This Court has original jurisdiction over these proceedings as provided in Section 10 of Article 7 of the Louisiana Constitution of 1921.

On April 3, 1967, the United States Eastern District Grand Jury indicted respondent, Lloyd E. Hennigan, for mail fraud and conspiracy to commit mail fraud, in violation of 18 U.S.C. §§ 371, 1341, respectively. On December 18, 1970, after a jury trial, Hennigan was found guilty of conspiracy to commit mail fraud. The court sentenced him to serve three years imprisonment. His sentence was later amended to three years active probation.

Respondent appealed his conviction and sentence to the Fifth Circuit of the United States Court of Appeals. That court affirmed his conviction and sentence. U. S. v. Perez, 489 F.2d 51 (1973). Respondent applied for a rehearing, which was denied.

Respondent then applied for a writ of certiorari to the United States Supreme Court. On June 10, 1974, the Supreme Court denied writs. Respondent’s conviction became final twenty-five days thereafter, in accordance with Rule 58 of the Rules of the United States Supreme Court.

The Louisiana State Bar Association, acting pursuant to Section 8, paragraphs 7(a)-(d) of Article XV of the Louisiana State Bar Association, through the Committee on Professional Responsibility, filed a petition for appropriate disciplinary action with the Supreme Court of Louisiana on October 11, 1974.

In response to that petition, respondent filed various exceptions to the proceedings, which this Court ordered referred to the merits. Respondent then answered the petition by way of a general denial, affirmatively asserting, however, that he was innocent of the charges for which he stood convicted and giving notice that he intended to produce evidence of extenuating circumstances. On October 29, 1975, a hearing was held before John V. Parker, the Commissioner appointed by this Court to conduct the proceedings. Louisiana State Bar Association Articles of Incorporation, Article 15 § 8(7)(b) (1971).

At the hearing, the Committee introduced into evidence the record of the instant proceedings, including the original petition for disciplinary action, certified copies of the certificate of conviction of the United States District Court for the Eastern District of Louisiana, and photostatic copies of the opinion of the United States Court of Appeal, Fifth Circuit in the case of United States v. Perez, supra. At this point, respondent requested the introduction of the entire transcript of evidence before the United States District Court and of all motions and pleadings filed in that court subsequent to the conviction. The Commissioner overruled respondent’s motion to introduce in globo the additional material on the basis that under the Articles of Incorporation of the Louisiana State Bar Association, the Committee is only required to introduce the “certificate of the conviction of the respondent.” Respondent objected to the Commissioner’s ruling and proffered the evidence. The Commissioner, however, did rule that particular portions of the record referred to specifically by page and line number which respondent desired reviewed would be considered.

After the hearing on October 29, 1975, the Commissioner found that the crime, conspiracy to commit mail fraud, warranted cancellation of respondent’s license to practice law.

The Louisiana State Bar Association then timely filed its concurrence in the Commissioner’s Report with this Court seeking respondent’s disbarment.

Respondent contends that the disciplinary action pending against him is improperly instituted under Article 15, § 8 of the Louisiana State Bar Association Articles of Incorporation, which provides:

“(1) Upon learning that an attorney has been convicted of a crime, whether the conviction results from a plea of guilty or nolo contendere or a verdict after trial, the Committee on Professional Responsibility may secure a certificate of such conviction from the applicable Clerk of Court.
“If the conviction is obtained in a Court of another state or a Federal Court, the Committee upon learning of the conviction, shall obtain two (2) copies of a certificate of conviction from the - proper Court, and shall retain one (1) copy and may forward the other copy to the Supreme Court.
“(2) The Committee shall then make a determination whether or not the crime of which the attorney has been convicted constitutes a serious crime. The term ‘serious crime’ means a felony or any other crime, the necessary element of which as determined by the statute defining such crime, reflects upon the attorney’s moral fitness to practice law.
“It will be necessary for the Committee in determining whether or not the crime constitutes a ‘serious crime,’ to study the statute defining the crime, particularly if the crime involves the violation of a statute of the Federal Government or another state or jurisdiction.
“(3) Upon completing its determination as to whether or not the crime constitutes a ‘serious crime,’ the Committee shall file a written report with the Supreme Court, setting forth its findings and conclusions.
“(4) If the Supreme Court should concur with the opinion of the Committee that the crime of which the attorney has been convicted constitutes a serious crime, the Supreme Court may suspend the respondent from the practice of law and order the Committee to institute the necessary disciplinary proceedings, provided however, that the disciplinary proceedings so instituted will not, unless requested by the accused, be brought to a hearing until all appeals from the conviction are concluded.
“(5) If the Committee in its report to the Supreme Court has concluded that the crime of which the attorney has been convicted is not a serious crime, or if the Supreme Court should determine independently that the crime is not a serious crime, the Supreme Court will refer the matter back to the Committee.
“(6) An attorney will be reinstated immediately on the reversal of his conviction for a serious crime that has resulted in his suspension, but the reinstatement will not terminate any disciplinary proceedings then pending against the attorney.
“(7) After the conviction has become final, that is, all appeals have been concluded or exhausted, the procedure shall be as follows:
“(a) The Committee will file a petition in the Supreme Court seeking disbarment or any other remedy that the Committee deems appropriate, and the petition will be served upon the respondent in the same manner as in ordinary proceedings.
“(b) When issue is joined by answer by the respondent, a Commissioner will be appointed by the Supreme Court to represent the Court in the same manner as in ordinary proceedings.
“(c) At the hearing before the Commissioner, the certificate of the conviction of the respondent shall be conclusive evidence of his guilt of the crime for which he has been convicted.
“(d) At the hearing based upon a respondent’s conviction of a crime, the sole issue to be determined shall be whether the crime warrants discipline, and if so, the extent thereof. At the hearing the respondent may offer evidence only of mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted as determined by the statute defining the crime.
“(8) Except as provided hereinabove in this Section, the procedure with reference to proceedings based on a conviction of a crime, shall be conducted in the same manner as in ordinary proceedings.”

Respondent argues that the instant proceeding should have been instituted pursuant to the Articles of Incorporation in effect at the time of the commission of the criminal act of which he was convicted. He argues that he was convicted of conspiracy to commit mail fraud which is charged to have transpired during 1965 and 1966 and that the Louisiana Bar Association could have instituted disciplinary action any time subsequent to April, 1967. Respondent maintains that because the discipline provided for in the Louisiana State Bar Association Articles of Incorporation now in effect are more harsh than those in effect prior to September 1, 1971, this proceeding is in contravention of the United States and Louisiana Constitutions ex post facto laws. Article 1, Sections 9 and 10 of the United States Constitution; Article 4, Section 15 of the Louisiana Constitution of 1921.

Prior to September 1, 1971, discipline and disbarment rules were embodied in Article 13, § 12 of the Louisiana State Bar Association Articles of Incorporation. The former rule provided in pertinent part:

“Whenever any member of the bar shall be convicted of a felony and such conviction shall be final, the Committee may present to the Supreme Court a certified or exemplified copy of the judgment of such conviction, and thereupon the court may, without further evidence, if in its opinion the case warrants such action, enter an order striking the name of the person so convicted from the roll of attorneys and cancelling his license to practice law in the State of Louisiana.”

In Louisiana State Bar Association v. Edwards, La., 322 So.2d 123 (1975), the respondent attorney raised the same argument. He attacked the Committee’s proceeding under Article 15, as amended and effective September 1, 1971, for a crime committed prior to the adoption and effective date of said article. We stated:

“Clearly, Article 15, section 8, effective September 1, 1971, provides for the institution of disciplinary proceedings for the ‘conviction of a crime.’ It is the date of conviction for the crime that is controlling. See Louisiana State Bar Ass’n v. Ponder, 263 La. 743, 269 So.2d 228 (1972). Therefore, since respondent was adjudged convicted of the offense of violating 18 U.S.C. § 2313 based upon his plea of nolo contendere on September 3, 1971, the Committee properly proceeded under Article 15, section 8, as amended and effective September 1, 1971. Therefore, the fact of the ‘substantive change,’ if any, is of no moment.”

In Louisiana State Bar Association v. Ponder, 263 La. 743, 269 So.2d 228 (1972), in ruling upon an exception of prematurity, we stated:

“The current Articles of Incorporation of the Louisiana State Bar Association became effective on September 1, 1971. Because respondent’s conviction became final after this date, the committee properly instituted this disciplinary action pursuant to Article 15, Section 8(7) of the Articles of Incorporation of 1971.”

Although Edwards did not specify final conviction, the Court’s reliance on Ponder, supra, which specifically applied the date of final conviction, supports the conclusion that the date of final judgment is determinative. This conclusion is further supported by 1 Wright, Federal Practice and Procedure, Section 175, which provides in pertinent part:

“The entry of a plea of guilty has the effect of admitting all material facts alleged in the charge. No further proof of the crime is required, though, as noted in the preceding section, no judgment may be entered on the plea unless the court is satisfied that there is a factual basis for the plea. The plea is not merely evidence for the government. It is a formal criminal pleading, waiving a trial and defense, and leaving the court nothing to do but to impose sentence and enter judgment.”

In Edwards, supra, the conviction was based on the respondent’s plea of nolo con-tendere, equivalent to a guilty plea for most procedural purposes.

Hennigan’s conviction became final twenty-five days after the United States Supreme Court denied writs. Rule 58 of the United States Supreme Court Rules; Cutrer v. Humble Oil & Refining Co., 228 F.Supp. 787 (E.D.La.1964), aff’d Stevens v. Humble Oil & Refining Co., 346 F.2d 43 (5th Cir. 1965), cert. denied 382 U.S. 978, 86 S.Ct. 546, 15 L.Ed.2d 468 (1966); See also Louisiana State Bar Association v. Ponder, supra; Louisiana State Bar Association v. Edwards, supra.

Thus we hold that, as Hennigan’s conviction, became final after the September 1, 1971 effective date, the disciplinary action is properly instituted under the provisions as set forth in the 1971 Articles of Incorporation.

The sole issue to be determined by this Court in a disciplinary proceeding based on a conviction of a crime is whether “the crime warrants discipline, and if so, the extent thereof.” Louisiana State Bar Association Articles of Incorporation, Article 15 § 8(7)(d).

The basic facts surrounding respondent’s conviction for conspiracy to commit mail fraud were set forth by the United States Court of Appeal, Fifth Circuit, in United States v. Perez, supra, as follows:

“. . . The Louisiana-wide get-rich-quick scheme involved the staging of fraudulent automobile accidents for the purpose of creating false personal injury claims. These claims would be submitted to the insurance carriers for the respective vehicles involved in the wrecks with the aid and contrivance of certain physicians and lawyers.
“As the scheme evolved, the participants even coined their own terminology which, though alien to the uninitiated, became known to all those who participated. This glossary of modern day crookedness was quite descriptive. Certain participants were known as ‘recruiters.’ The recruiter’s function, not unnaturally, was to recruit others who assumed titles commensurate with their organizational function. There were the ‘hitters’, whose function it was to drive the ‘hitter’ vehicle in each collision which supposedly was to be liable for causing the accident. Then there was the ‘target’ vehicles. The occupants of the ‘target’ were known as the ‘driver’ and the ‘riders’. It was determined at the outset that pregnant women made exceptionally good riders as they could claim pregnancy related injuries which would be both hard to disprove and easily settleable with the insurance carriers. Throughout the scheme there was an effort made on the part of the participants to use vehicles and drivers which were covered by high limits of liability insurance.
“According to a pre-arranged timetable, the ‘hitter’ vehicle would strike the ‘target’ vehicle either broadside or in the rear end. The occupants of the ‘target’ vehicle — the driver and riders — and occasionally some of those in the ‘hitter’ vehicle, feigning injuries, would be sent to a particular doctor and lawyer who would facilitate phony claims by creating a medical history for treatment of nonexistent injuries and making a demand on the appropriate insurance company.
“The key to immediate financial gain in each staged collision was advances paid by the attorneys to the ‘riders’ for whom allegedly false claims were being submitted. These advances were paid in the form either of cash payments or loans from local financial institutions, co-signed by the attorney handling the claim. Of the usual advance ranging from $250 to $500, part was retained by the rider-claimant with the rest being distributed among the organizers, recruiters, and others who assisted with various aspects of staging the wreck. When the claim was ultimately settled with the insurance carrier, the proceeds would be applied to (i) repay the advancing attorney or in such cases, to liquidate the guaranteed bank loan and (ii) to pay the inflated doctor’s bill, not infrequently, with kickbacks going to both the organizers and the participating attorneys in addition to their usual shares.
“The feature of this case which brought it into federal court was that, in the course of asserting and negotiating for settlement the fraudulent claims of the voluntary victims, the United States mails were used.” (footnotes omitted)

Under Article 15, Section 8(7)(d) of the Louisiana State Bar Association Articles of Incorporation, respondent was entitled to offer evidence at the Commissioner’s hearing of “mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted.” This means, of course, that he cannot offer in mitigation any evidence inconsistent with his guilt of the crime. Some of the evidence offered at the Commissioner’s hearing was inconsistent with respondent’s guilt. The Commissioner properly rejected this evidence. The disciplinary procedure is designed to avoid a retrial of the criminal charge, of which the respondent has been convicted under constitutional safeguards in a court of competent jurisdiction. The mitigating circumstances which respondent properly presented i. e., that since conviction he has led an exemplary life and that he has already suffered loss from the conviction do not detract from the fact that the crime relates directly to a flagrant abuse of respondent’s skills as an attorney. We agree with the Commissioner’s finding that respondent’s conviction of conspiracy establishes that his conduct violates at least two provisions of the Code of Professional Responsibility:

Disciplinary Rule 1-102 provides in part:

“(A) A lawyer shall not:
* * * * * *
“(3) Engage in illegal conduct involving moral turpitude.
“(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
“(5) Engage in conduct that is prejudicial to the administration of justice.”
Disciplinary Rule 7-102 provides in part:
“(A) In his representation of a client, a lawyer shall not:
******
“(4) Knowingly use perjured testimony or false evidence.
“(5) Knowingly make a false statement of law or fact.
“(6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.
“(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.”

In conclusion, we agree with the Commissioner’s report and find respondent has been convicted of a serious crime which reflects on his moral fitness to practice law and find that under the circumstances of this case disbarment is the appropriate disciplinary action.

For the reasons assigned, it is ordered, adjudged, and decreed that Lloyd E. Henni-gan be and he is hereby disbarred from the practice of law in Louisiana and, accordingly, his license to practice is cancelled. Respondent is to bear all costs of this proceeding.

TATE, J., recused, having served as a character witness in the federal proceedings.

DENNIS, J., dissents with reasons.

DENNIS, Justice

(dissenting).

I respectfully dissent for the reasons assigned by me in Louisiana State Bar Association v. Philip J. Shaheen, Jr., 338 So.2d 1347 (La.1976), No. 55,432.

      . At the time the Louisiana State Bar Association filed this petition for disciplinary action on October 11, 1974, the Louisiana Constitution of 1921 was still in effect. The pertinent jurisdictional authority is now contained in Article 5, Section 5 of the Louisiana Constitution of 1974.

      . Subsequent to the filing of the answer, a supplemental petition to the earlier filed exception of prematurity was filed, alleging that the matter was premature because a motion for a new trial was pending before the federal district court. The motion was denied, but apparently is presently being considered by the United States Court of Appeal, Fifth Circuit. Before this Court, respondent is contending that his conviction is not final.


author: CALOGERO, Justice.

text:
    PIONEER PRODUCTION CORPORATION et al. v. Elizabeth Barnhill SEGRAVES et al.
    No. 57783.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearing Denied Dec. 10, 1976.

      Donald R. Jory, Jory & Donald, Jennings, Kenneth Gordon Jr., of Liskow & Lewis, Lafayette, for plaintiff. •
    F. Jefferson Millican, Jennings, for defendant-applicant.
   CALOGERO, Justice.

This concursus proceeding arises out of conflicting claims by the heirs of John G. Segraves and the City of Jennings to royalty payments placed in the court registry by Pioneer Production Corporation. The payments constitute oil and gas revenue attributable to land beneath a portion of Highway 90 in the City of Jennings. Highway 90, formerly known as the Old Spanish Trail, borders land which Segraves subdivided in 1946.

Pioneer Production Corporation, owner of leases from the City of Jennings and from the heirs of John Segraves, impleaded those opposing claimants to assert their rights to the deposited funds.

The land in question was acquired by Segraves in 1918 when he purchased a thirty-acre tract immediately north and east of the right of way of the Southern Pacific Railroad. The tract included at its southern extremity (parallel and adjacent to the railroad’s right of way) the road known as Old Spanish Trail. In 1930, apparently to facilitate construction, or improvement, of U.S. Highway 90, John Segraves granted to the state an eighty-foot strip of land including the existing Old Spanish Trail. The parties agree that this deed conveyed only a servitude to the state, not complete ownership of the eighty-foot strip. In 1946, John Segraves subdivided a triangular portion of his property lying to the north of the eighty-foot servitude and filed a plat and several.replats of the subdivision, known as Segraves Subdivision.

The issue in this case is whether Segraves granted to the City of Jennings by means of these plats and replats a fee interest in the eighty-foot strip. Both courts below held that the City did not gain a fee interest in the property by means of the subdivision dedication. They found the heirs of John Segraves owners of the fee and thus entitled to the royalties in contest. 326 So.2d 516 (La.App.3rd Cir. 1976). We affirm.

Highways and streets are public property in this state only in the sense that they are subject to public use; their roadbeds are not necessarily owned by the state, but may instead be owned by local governments or even private persons. La. C.C. art. 658; Jones Island Realty Co. v. Middendorf, 191 La. 456, 185 So. 881 (1939); A. Yiannopoulas, Property, II La.Civ.L. Treatise § 33, at 101 (Supp.1975). But governments can gain ownership of those roadbeds in several ways, one such method being through statutory dedication. Arkansas-Louisiana Gas Co. v. Parker Oil Company, 190 La. 957, 183 So. 229 (1938); 16 La.L.Rev. 521 (1956). In the case at hand, it is agreed that the roadbed under the subject highway was owned in 1946 by John Segraves. The Segraves heirs maintain that the property subject to servitude in favor of the state remains their private property, but the City of Jennings argues that the property was transferred to the City in 1946 by virtue of the provisions of La.R.S. 33:5051 when Segraves subdivided a portion of his property. The City argues that when Segraves recorded the subdivision maps containing a reference to the highway, in so doing he dedicated to public use the property subject to the servitude along with the newly-formed streets of the subdivision.

The maps which are at issue here show the railroad tracks, designated “Main Tract Southern Pacific R.R.,” and, parallel to the railroad, a strip of land one hundred ninety feet wide (which is divided into three strips of one hundred feet, thirty-one feet, and fifty-nine feet) with a designation near the center line of the concrete highway, “O.S.T. Rt. 90.” The eighty-foot servitude is not indicated on the map. North of this strip are several “blocks” (mostly rectangular) subdivided into lots of various sizes. These “blocks” are separated by the newly-formed sixty-foot wide streets named Segraves, Winnie, Allen, and Sidney. Two of these streets, Segraves and Winnie, are perpendicular to and intersect “O.S.T. Rt. 90”; Sidney and Segraves Streets intersect Louise Street which borders the subdivision on the east. A drainage ditch is shown on the northern border of the property. Some of the subdivision lots front on the servitude and some front on Louise Street, although most of the lots front on the interior streets mentioned above. In the original survey maps, circles mark the corners of the blocks but do not delineate the property subject to the servitude nor the concrete highway thereon.

In addition to these markings, the plat contains this statement:

“I hereby certify that this map is in accordance with provisions of Act 51 of Legislature of Louisiana for year 1930 and with Laws and ordinances of the Parish of Jefferson Davis and City of Jennings, La.
(s) JASPER L. BOURGEOIS, Surveyor. “I hereby formally dedicate to public use the Streets as shown on this Map. (S) J. G. SEAGRAVES, Owner.”

The mention of the 1930 Act and the owner’s dedication of the streets refer to the statutory requirements which set out procedures which a landowner could follow to create a subdivision in an urban area. The 1930 Act was the source provision for the present statute, R.S. 33:5051, which allows a landowner to subdivide his property so long as he fulfills certain requirements including formally dedicating to public use all the streets, alleys and public squares in the subdivision. The statute provides more fully that:

“Whenever the owner of any real estate desires to lay off the same into squares or lots with streets or alleys between the squares or lots and with the intention of selling or offering for sale any of the squares or lots, he shall, before selling any square or lot or any portion of same, cause the veal estate to be surveyed and platted or subdivided by a licensed surveyor or civil engineer into lots or blocks, or both, each designated by number, and set stakes, which shall be permanent in nature, at all of the corners of every lot and block thereof, properly marked so as to designate the correct number of each lot and block; write the legal description of the land on the plat or map, and cause to be made and filed in the office of the keeper of notarial records of the parish wherein the property is situated and copied into the conveyance record book of such parish, and a duplicate thereof filed with the assessor of the parish a correct map of the real estate so divided, which map shall contain the following: ******
(4) The name of each street and alley and its length and width in feet and inches.
(5) The name or number of each square or plat dedicated to public use.
******
(7) A formal dedication made by the owner or owners of the property or their duly authorized agent of all the streets, alleys and public squares or plats shown on the map to public use.” (emphasis added)

This statute provides for surveying and platting, or subdividing, into “squares or lots with streets or alleys between the squares or lots” and for the dedication to public use of all “streets, alleys and public squares” on the map. R.S. 33:5051(7). It is further required that the length, width, and name of each street be designated on the map in feet and inches. R.S. 33:5051(4). This language indicates that the legislature intended to require the platting and dedication of all of the newly-formed streets which were fashioned from the real estate to be subdivided because it refers to the streets as being between the lots; it requires that the length and width of each street be given; and it deals with “real estate to be subdivided,” a phrase which does not reasonably include a pre-existing, bordering highway or right of way which does not traverse or in any way divide the real estate which is being subdivided. It is clear to us that R.S. 33:5051 in its requiring the formal dedication of all streets, alleys and public squares does not necessarily contemplate the dedication to public use of a bordering, existing right of way or highway.

The Louisiana statute conforms with the general goal of municipal planning throughout the country which is to preserve the public health and welfare by promoting systematic and harmonious growth in accordance with the needs of the entire community, not merely those of. a particular subdivision. The layout of streets and alleys within the subdivision is of particular importance in this regard because of the need for alignment of new streets with existing streets, the need for new streets to meet certain minimum standards and dimensions, and the need for owners of the new lots to gain access to public thoroughfares. 54 Iowa L.Rev. 1121 (1969). Once the public has gained a conventional servitude of use over a highway, however, these policy requirements are fulfilled, and there is really no need for the public to own the land beneath the right of way and/or highway.

Although there was no need, as a policy matter, for the act of subdivision to dedicate the eighty-foot strip subject to servitude to the City of Jennings along with the beds of interior streets, the City argues that the recording of the plat effected the dedication of all streets and highways on the map, regardless of the need for public ownership of the previously-existing bordering highway right of way. The City points to the statement of John Segraves which appears on the map, and the case of Chevron Oil Company v. Wilson, 226 So.2d 774 (La. App.2nd Cir. 1969), writ refused 254 La. 849, 227 So.2d 593, to support its argument.

The inclusion on the map of the dedicating statement, as directed by R.S. 33:5051(7), does not persuade us that the servitude area of Highway 90 was a part of the dedicated property. We agree with the Court of Appeal which stated that “[t]his dedication must be construed in the light of its purpose, that is, to comply with the statutory requirements for laying out a subdivision.” 326 So.2d at 518. Had Seg-raves failed to include such a dedicatory statement, the subdivision streets would nevertheless have been dedicated, Parish of Jefferson v. Doody, 247 La. 839, 174 So.2d 798 (1965), and we do not feel that the inclusion of that statement by Segraves effected the dedication of any more property than was otherwise dedicated.

The Chevron case, relied upon by the City, dealt with the ownership of a road which had come into use through the sufferance of the landowner who later subdivided, surveyed, and filed a plat of his subdivision. The map noted the existence of the highway simply as an an “improved highway.” The state claimed ownership through statutory dedication, but the landowner claimed that only a servitude had been created, earlier, by implied dedication. The Second Circuit held for the state, and relying on Parker, concluded that the facts presented amounted to a statutory dedication. Intention to dedicate was found from the platting, recording, and selling of lots according to the plat. The Court reasoned that “[t]o require an examiner to determine whether a road shown on a recorded subdivision plat had been the subject of an implied dedication prior to recording the plat would place a considerable burden on an examiner.” 226 So.2d at 777.

The case now before us is distinguishable from Chevron because the road there completely traversed (or divided) the subdivision in question, while in the instant case the servitude area at issue ran along the edge of the subdivision and did not cut across it at all. Moreover, the servitude area here was not the subject of a non-recorded, implied dedication as in Chevron but instead the subject of a recorded, conventional servitude which was a matter of public record in the parish just as was the later subdivision plat. No title examiner could have been misled by the difference between the newly-created streets within the subdivision (streets named Segraves, Winnie, Allen, and Sidney) and the Highway 90 servitude area to the south of the subdivision which had been the subject of a conventional, recorded servitude for many years.

A statutory dedication is properly to be gleaned from the instrument, or instruments, of record, rather than from evidence or purported intention dehors the record. On the other hand what is of record must be given a rational construction in ascertaining the purport of the instrument. When that rational construction negates an intent on the part of the subdividing landowner to dedicate a particular piece of land, the fact that a reference to the land appears on a map does not, of itself, effect a dedication to public use. In Winningham v. Hill, 164 So.2d 384 (La.App. 2d Cir. 1964), the filing of plats indicating a twenty-foot by three-hundred seventy-eight foot strip of land without any symbols or marks from which a public purpose could be inferred was found insufficient to show dedication of the strip for public use. In Jefferson Parish School Board v. Assets Realization Co., 182 So.2d 818 (La.App. 4th Cir. 1966), plats indicating that a particular area was reserved for schools resulted in a finding that those areas were not dedicated to public use because the landowner did not intend thereby to dedicate them. And in the ease of State Department of Highways v. Claitor, 289 So.2d 527 (La.App. 1st Cir. 1973) it was found that the fact alone that words of dedication are on a subdivision plat does not compel the result that the land in question has been dedicated.

In the ease before us, the Third Circuit held that “a privately owned fee interest subject to a public thoroughfare which existed before the creation and platting of a subdivision or even before the sporadic sales is not subject to the fee-vesting effect of the statutory dedication unless the street is clearly shown as part of the subdivision by words or surveying symbols.” 326 So.2d at 518. We agree with this conclusion.

The absence of circles or other surveyor marks delineating the eighty-foot strip, the position of the highway right of way on the border of the subdivision instead of traversing it, the subdivider’s noncompliance with the statute with respect to indicating length and width of the right of way in feet and inches, the absence of any indication of exactly where the eighty-foot servitude lies in relation to the adjacent lots and the railroad right of way, and the fact that the property was the subject of a preexisting conventional servitude granting use to the public are all indications that Segraves’ plat of subdivision did not effect, and cannot reasonably be construed to have been intended to effect, a dedication of this property in question for public use.

Accordingly, we find no error in the ruling of the court below, and for that reason the judgment is affirmed. The costs of the appeal shall be taxed to the relator.

DIXON, J., dissents — Chevron v. Wilson, La.App., 226 So.2d 244.

      . The railroad tracks and the highway right of way run in a southeast-northwest direction, and the tract subdivided lies to the northeast of the highway, but, for ease of description, the tracks and highway will hereafter be referred to as lying south of the subdivided tract. See plat reproduced in note two for further details.

      . The plat Segraves filed in 1946 is reproduced on next page.

      . Although the opinion does not describe the exact relationship between the highway and the lots, we have studied the plats in that case and confirmed that the highway at issue ran across the property being subdivided and that parcels of land on both sides of the highway were being subdivided into lots.