author: SANDERS, Chief Justice. TATE and DENNIS, Justices, CALOGERO, Justice, PER CURIAM. SUMMERS, J.,

text:
    STATE of Louisiana v. Stanley EMERSON and Jules Duperon.
    No. 58518.
    Supreme Court of Louisiana.
    April 11, 1977.
    Rehearing Denied May 13, 1977.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Doug P. Moreau, Asst. Dist. Atty., for plaintiff-relator.
    Frank L. Dobson, Baton Rouge, for defendant-respondent Jules Duperon.
    Gregory A. Pletsch, McCollister, Belcher, McCleary, Fazio, Mixon, Holliday & Jones, Baton Rouge, for defendant-respondent Stanley Emerson.
   SANDERS, Chief Justice.

The State charged Stanley Emerson and Jules Duperon with simple escape from the Louisiana Training Institute in East Baton Rouge Parish, where they had been committed after delinquency proceedings in juvenile court. At the time of their escape, December 18,1975, each was over seventeen years of age, and the prosecution was instituted in the Nineteenth Judicial District Court for East Baton Rouge Parish. Ultimately, the trial judge quashed both charges on the ground that the simple escape statute, LSA-R.S. 14:110, did not apply to escapes by persons committed to the Louisiana Training Institute. We granted supervisory writs to review the rulings of the trial judge.

In a motion filed in this Court, Emerson, attacks the district court’s jurisdiction. Basically, this defendant contends that once the juvenile court has obtained jurisdiction of a juvenile by virtue of an adjudication, the juvenile court retains jurisdiction as to all criminal conduct of the juvenile until he reaches the age of 21. To support this contention, he relies upon several sections of the Juvenile Court Act, especially LSA-R.S. 13:1569, LSA-R.S. 13:1570, and LSA-R.S. 13:1572.

In pertinent part, LSA-R.S. 13:1569 provides:

“When used in this part, unless the context otherwise, requires:
“3. ‘Child’ means a person less than seventeen years of age. The term ‘child’ also means a person over seventeen but who committed an act of delinquency before attaining the age of seventeen years.
u * * *

In defining child, this section establishes the age for juvenile court jurisdiction at less than seventeen years. It also makes clear, however, that the age at the time of the act of delinquency governs. If the act of delinquency was committed before a child becomes seventeen, the juvenile court has jurisdiction although the child may attain the age of seventeen prior to the delinquency proceeding.

LSA-R.S. 13:1570, also relied on, reads in pertinent part as follows:

“Except as otherwise provided herein, the court shall have exclusive original jurisdiction in proceedings:
“A. Concerning any child whose domicile is within the parish or who is found within the parish:
u * * *
“(5) Who violates any law or ordinance, except a child who, after having become fifteen years of age, is charged with having committed a capital crime, or a crime defined by any law defining attempted aggravated rape; provided that once such a child has been actually charged with a capital crime, armed robbery, or attempted aggravated rape, the” district court shall retain jurisdiction over his case, even though the child pleads guilty to, or is convicted of, a lesser included offense; and a plea to, or conviction of, a lesser included offense shall not revest the juvenile court with jurisdiction of such a child.
U if! * *
“B. Concerning any minor seventeen years of age or older whose domicile is within the parish or who is found within the parish charged with having violated any law or ordinance prior to having become seventeen years of age, except a minor seventeen years of age or older charged with having committed a capital crime or a crime defined by any law defining aggravated rape after having become fifteen years of age.
(I * « *

Paragraph A(5) provides that the juvenile court shall have jurisdiction of “any child” who violates any law or ordinance with the exception noted. The word child, of course, means a person less than seventeen years of age, as defined elsewhere in the act.

Paragraph B is a substantial reiteration of LSA-R.S. 13:1569(3), that the juvenile court has jurisdiction of a child who has attained seventeen years of age for an act of delinquency committed prior to seventeen.

Finally, the mover relies upon LSA-R.S. 13:1572, reading in pertinent part:

“When jurisdiction shall have been obtained by the court in any case as provided in R.S. 13:1570 or in the case of any person under twenty-one years of age as provided in R.S. 13:1571 such child or such person under twenty-one years of age shall continue under the jurisdiction of the court until he becomes twenty-one years of age unless discharged prior thereto by the court. A child adjudicated delinquent before his thirteenth birthday or any child whose confinement has not been based on a finding of delinquency must be released upon attaining his eighteenth birthday.
U * * *
“Until such time as the child attains twenty-one years of age or shall have been ordered discharged by the court, the court shall not be divested of jurisdiction, but shall retain same notwithstanding said child might have been placed by proper authority outside of the designated territorial jurisdiction of said court.”

Mover’s reliance upon these provisions is likewise misplaced. Essentially, they mean that when the juvenile court has obtained jurisdiction “in any case,” that court retains jurisdiction to issue further orders in the case concerning the child until he reaches the age of twenty-one, unless the court discharges him earlier. The statute makes a special exception for a child adjudicated a delinquent prior to his thirteenth birthday. The same juvenile court that adjudicated the child a delinquent retains jurisdiction to issue further orders in the case, though the child has been officially placed outside its territorial jurisdiction.

In the present case, the State has charged the defendants with a crime allegedly committed after they attained the age of seventeen. The charge falls within the original jurisdiction of the district court. LSA-Const. Art. 5 § 16 (1974); LSA-C.Cr.P. Art. 16.

We conclude that the attack upon the jurisdiction of the district court is without merit.

As we have observed, the trial judge quashed the bills of information on the ground that LSA-R.S. 14:110, the simple escape statute, did not apply to an escape from the Louisiana Training Institute.

Prior to its amendment, effective September 12, 1975, LSA-R.S. 14:110 provided in pertinent part:

“A. Simple escape is:
(1) The intentional departure of a person, while imprisoned, whether before or after sentence, under circumstances wherein human life is not endangered, from lawful custody of any officer of the Department of Corrections or any law enforcement officer or from any place where he is lawfully detained by any law enforcement officer . . .

In State v. Williams, La., 301 So.2d 327 (1974), this Court held that a juvenile’s commitment is not tantamount to imprisonment and that the order of commitment is not a sentence. Since juveniles were not considered “imprisoned” within the meaning of the statute, Louisiana Training Institute was not a “place of official detention” as contemplated by the short form indictment for simple escape. LSA-C.Cr.P. Art. 465. The Court held that the short form indictment used in State v. Williams, supra, was fatally defective.

Subsequent to our decision in State v. Williams, supra, Act 450 of 1975, effective September 12, 1975, amended the simple escape statute to read as follows:

“A. Simple escape is:
(1) The intentional departure, under circumstances wherein human life is not endangered, of a person imprisoned, committed, detained, or otherwise in the lawful custody of any law enforcement officer or officer of the Department of Corrections from any place where such person is legally confined . . . (Italics ours.)

Obviously, the amendment represents a legislative effort to adapt the statute to this Court’s decision. The statute now includes commitment, detention, or other lawful custody, as well as imprisonment. The Louisiana Training Institute, of course, is a custodial and rehabilitative institution for delinquent youth operated by the Department of Corrections. LSA-R.S. 15:902, 904.

The defendants assert, however, that the statute is rendered inapplicable to them by the restriction imposed by the words “legally confined.” They argue that the statutes relating to commitment of juveniles at the time of the escape, especially LSA-R.S. 13:1580, merely authorized the judge to “assign the custody of the child” to an institution. They draw a distinction between being in the custody of Louisiana Training Institute and being legally confined there. They attempt to bolster their argument by pointing out that Act No. 756 of 1975 introduced the concept of confinement into LSA-R.S. 13:1580 for the first time, but that the act did not become effective until January 1, 1976, after the date of the present charge.

The argument is tenuous. The statutory language “assign the custody” is used in the sense of a judicial commitment, that is, an order placing the child under the control of the institution. See LSA-R.S. 13:1569(7)(11). In our opinion, a juvenile duly committed to the Louisiana Training Institute is legally confined there within the meaning of LSA-R.S. 14:110.

Moreover, defendants are in error in asserting that Act 756 of 1975 did not become effective until January 1, 1976. Article 3, Section 19 of the Louisiana Constitution (1974) provides that all laws shall take effect on the sixtieth day after final adjournment of the legislative session unless the act specifies an earlier or later effective date. Therefore, Act 756 of 1975 became effective on September 12, 1975, unless it specifies a later effective date.

Defendants rely upon Section 4 of the statute, which provides:

“Notwithstanding the provisions-of this act, children in need of supervision may be committed to the custody of the Department of Corrections until January 1, 1976.”

This section, in our opinion, is not one specifying a later effective date for the statute within the meaning of the constitutional provision. It merely provides that for a limited period after the effective date any child in need of supervision may be committed to the custody of the Department of Corrections, notwithstanding the restrictions based on the minimum age of thirteen. Compare Act 155 of 1974 (Section 2). Clearly, therefore, the section is correctly characterized as a transitional provision, rather than a specification of a later effective date for the act, which deals with various procedures in the juvenile courts.

We conclude that LSA-R.S. 14:110, as amended, clearly encompasses the escape of a person committed to the Louisiana Training Institute.

For the reasons assigned, the ruling of the district court sustaining defendants’ Motions to Quash and Motion to Vacate and Set Aside Conviction and Sentence is reversed' and set aside, and the case is remanded to the district court for further proceedings consistent with the views herein expressed.

TATE and DENNIS, JJ., concur for reasons assigned.

DIXON, J., dissents.

CALOGERO, J., dissents and assigns reasons.

TATE and DENNIS, Justices,

concurring.

We, like the trial court, find it difficult to believe that the legislature intended to make youths subject to criminal penalties, if they depart from the minimum-security institutions of the Department of Corrections to which committed by the juvenile courts. However, provided the youth is over seventeen years of age at the time of the escape, we are persuaded, for the reasons stated by the majority, that such is the proper construction of La.R.S. 14:110, as amended by Act 450 of 1975.

We do further note that a juvenile so committed is not “sentenced” to the Department of Corrections. State v. Williams, 301 So.2d 327 (La.1974). See La.R.S. 13:1580; La.C.Cr.P. art. 871. We do not read the majority opinion as holding otherwise.

Therefore, an escapee over seventeen detained as a juvenile is not subject to mandatory imprisonment in the penitentiary (as is one who escapes after “having been sentenced to the Department of Corrections”, La.R.S. 14:110 A), but he is instead subject only to imprisonment in the parish jail, and then only at the discretion of the trial court (which may of course suspend a sentence and permit the return of the juvenile to the juvenile facility).

CALOGERO, Justice,

dissenting.

Defendants Emerson and Duperon were not persons legally confined to the Louisiana Training Institute such that they could have been guilty of violating La.R.S. 14:110 as amended by Act 450 of 1975 effective September 12, 1975. This is so in my view, notwithstanding that amendment to R.S. 14:110 followed this Court’s decision in State v. Williams, 301 So.2d 327 (La.1974). My view is bolstered by the fact that statutes relative to commitment of juveniles at the time these defendants were probably “sentenced” to Louisiana Training Institute merely authorized the judge to assign the custody of the child to the institution.

It may be true as the majority states that Act 756 of 1975 in its relevant “confinement” provision became effective before the date of the alleged escape, i. e., December 18, 1975. This only means, however, that a person “sentenced” by a juvenile court judge on or after September 12, 1975, might legally have been “confined.” It does not however mean that these defendants who were only legally committed prior to the effective date of the amendment to R.S. 13:1580 were “confined” by operation of law on September 12, 1975.

Because criminal laws are stricti juris I believe that the trial judge was correct when he found the defendants were not legally confined to the Department of Corrections on December 18, 1975 when they allegedly escaped from Louisiana Training Institute.

Accordingly I dissent.

On Application for Rehearing

PER CURIAM.

A majority of this court adheres to the view that the motion to quash should be overruled because the crime of simple escape, La.R.S. 14:110 A (1) is charged by bills of information.

The applicants additionally point out that the bills incorrectly attempt to label the offense charged as a felony. Since the defendants were not “sentenced” to the Department of Corrections, they are subject only to imprisonment without hard labor for not more than one year.

With this clarification, our original decree is reinstated. The state is reserved the right to apply for rehearing within the applicable delay, should the state feel that this clarification represents any change in our original ruling.

SUMMERS, J.,

is of the opinion the decision is correct as originally written. The matter added by this per curiam is presented for the first time on rehearing and is dicta.

DIXON, J., is of the opinion a rehearing should be granted.

CALOGERO, J., is of the opinion a rehearing should be granted adhering to the view expressed in his earlier dissent. Nonetheless he agrees that this per curiam clarification is correct.

      . As to Emerson, who had pleaded guilty, the trial judge also set aside his conviction.

      . ‘.‘(a) A child over the age of thirteen who has been adjudged a proper person for commitment based on a finding of delinquency may be confined for an indefinite period but in no case beyond his twenty-first birthday. However, no such child shall be confined for a period which exceeds the length of time for which an adult could be confined if convicted of the offense which formed the basis for the adjudication of delinquency. Children with a temporary excused absence or adults in this category may be recommitted until their twenty-first birthday.” (Italics ours.)

      . See La.R.S. 14:110 A: “ * * * Whoever not having been sentenced to the Department of Corrections commits the crime of simple escape, shall be imprisoned for not more than one year and any such sentence shall not run concurrently with any other sentence.” (Italics ours.)

      . Emerson was committed by a judge of Juvenile Court for the Parish of Orleans to Louisiana Training Institute on November 26, 1974, according to his brief. Duperon’s date of “sentencing” is not evident from the record, but it too was probably before September 12, 1975, the effective date of Act 756 of 1975, for he was over seventeen years old and an adult on December 18, 1975, the date of the alleged escape. This uncertainty should at least prompt a supplementation of the record before this Court overrules the trial court’s quashing of the bill of information.

      . See La.R.S. 14:110 A: “ * * * Whoever not having been sentenced to the Department of Corrections commits the crime of simple escape, shall be imprisoned for not more than one year and any such sentence shall not run concurrently with any other sentence.” (Italics ours.)


source: Caselaw Access Project

author: DIXON, Justice. SANDERS, Chief Justice

license: Public Domain

text:
    Robert ODOM v. Christa ODOM.
    No. 58895.
    Supreme Court of Louisiana.
    April 11, 1977.
    Dissenting Opinion June 1, 1977.
    George H. Jones, New Orleans, for defendant-respondent.
    Ivor A. Trapolin, New Orleans, for plaintiff-relator.
   DIXON, Justice.

On May 1, 1975 Robert Odom was granted a divorce from Christa Gertrude Odom (now Lemming) on the grounds of adultery. In a letter dated November 24, 1974 Christa Odom confessed adultery and stated that she did not desire the custody of her two minor children; she consented to allow her husband to take the children “any place in the world.” Pursuant to the evidence adduced at trial, Robert Odom was granted the permanent care and custody of the two minor children on May 1, 1975.

On October 31, 1975 Christa Odom was granted visitation rights with the children of the marriage. Sometime after this judgment was rendered (apparently around the first of May, 1976) Robert Odom moved to San Antonio, Texas and took his two children with him. On September 22, 1976 Christa Odom filed a rule for contempt and change of child custody in these same proceedings. On October 7, 1976 the district judge refused to sign this rule on the basis that there was no jurisdiction to modify the custody award previously entered. The Fourth Circuit Court of Appeal issued a writ of mandamus setting aside the October 7, 1976 judgment and ordered the district judge to appoint a curator for the absent husband and to hear the matter. On the curator’s application we granted writs to review the jurisdictional issue.

C.C.P. 10 provides in part:

“A. A court which is otherwise competent under the laws of this state has jurisdiction of the following actions or proceedings only under the following conditions:
“(5) A proceeding to obtain the legal custody of a minor if he is domiciled in, or is in, this state; . . .”

The minors in this case are physically present in Texas with the husband, who has legal custody. Since the domicile of a minor is that of the parent to whom custody is granted, C.C. 39, the children are domiciled in Texas. Therefore, absent an independent basis for jurisdiction, Louisiana courts lack jurisdiction to hear this custody proceeding unless the jurisdiction of the court over the status of the children when the original custody decree was rendered can be said to continue, even in the absence of the children and their custodian.

The Courts of Appeal are divided on the question of whether jurisdiction continues for purposes of determining custody of a nonresident child whose custody was previously determined by a Louisiana court while the child was present in Louisiana. The First and Second Circuits have held that courts lack jurisdiction to determine custody matters if the child is neither domiciled nor physically present in Louisiana. Stewart v. Stewart, 233 So.2d 305 (La.App. 1st Cir. 1970); Nowlin v. McGee, 180 So.2d 72 (La.App. 2d Cir. 1965). However, the Third and Fourth Circuits have recently noted that a court which rendered a separation or divorce retains jurisdiction over all matters incident to the separation or divorce, including custody. Bates v. Bates, 331 So.2d 122 (La.App. 4th Cir. 1976); Lynn v. Lynn, 316 So.2d 445 (La.App. 3d Cir. 1975); Pattison v. Pattison, 208 So.2d 395 (La.App. 4th Cir. 1968).

In Imperial v. Hardy, 302 So.2d 5 (La.1974), we held that when a nonresident father invoked the jurisdiction of Louisiana courts to obtain custody of his children present in Louisiana, and is cast for child support in an incidental demand, jurisdiction of the court over the husband continues when the wife later seeks to increase child support. It does not necessarily follow, however, that jurisdiction continues over all the parties for all purposes. In alimony or child support cases there are significant reasons to support the continuing exercise of jurisdiction by Louisiana: the child or spouse to whom the support is owed is a Louisiana resident whose welfare is a legitimate interest, if not ultimate responsibility, of the state. However, in the case before us, the parent with legal custody and the children are neither present nor domiciled in this state. Louisiana’s responsibility for the welfare of such a child is remote, and its interest is, at most, vicarious and conditional because of the presence in the state of the parent who does not have custody. The state where the child is domiciled (or located) has a much more immediate interest and responsibility for, and ability to regulate conditions affecting, the welfare of the child. There are no compelling reasons for Louisiana courts to attempt to exercise “continuing jurisdiction” over the status of the absent children in this case. (What we say here has no reference to a case in which the parent obligated to support the child is in Louisiana and the child and its custodian are absentees).

Lukianoff v. Lukianoff, 166 La. 219, 116 So. 890 (1928), cited to support the doctrine of “continuing jurisdiction,” decided only that when a Louisiana court granted a judgment of separation to the wife its jurisdiction to grant a divorce based on the separation judgment continued, under the statutes and jurisprudence, even after both parties had moved from the state. In Wheeler v. Wheeler, 184 La. 689, 167 So. 191 (1936), the minor was actually present in Louisiana, although domiciled elsewhere, and, thus, the result of the case is correct under C.C.P. 10A(5). Other cases by this court in which the statement is found that jurisdiction continues even when the parent awarded legal custody and the child have changed domiciles and are no longer present in Louisiana are factually different from the case before us. Pullen v. Pullen, 161 La. 721, 109 So. 400 (1926), involved the custody of a child domiciled and present in Louisiana; the case actually dealt with continuing venue. Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953), involved the question of whether a parent who was awarded custody would be permitted to leave the state with the children; the court stated that jurisdiction would remain in Louisiana if the parent left the state, but that matter was not at issue.

The instant case is “a proceeding to obtain the legal custody of a minor . . . ” It is specifically the kind of case for which the legislature intended to grant jurisdiction only if the minor is present in the state or is domiciled here. C.C.P. 10A(5). We are not required in this case to fully discuss the nature of a custody decree, nor to determine when the jurisdiction of a court which has granted a judgment of custody terminates. We only conclude that, absent a showing of some compelling reasons for the Louisiana court to attempt to exercise continuing jurisdiction, the district court was without jurisdiction in this case to entertain a petition for custody.

Since we conclude that the district court was without jurisdiction in this ease, we do not decide whether the exercise of continuing jurisdiction in custody cases might violate due process or whether principles of comity could affect the exercise of such jurisdiction. See State in Interest of King, 310 So.2d 614 (La.1975). When an appropriate custody matter comes before the court in which jurisdiction exists, it can then be determined whether these principles prevent the court from acting.

For these reasons, the judgment of the Court of Appeal is reversed and the judgment of the district court is reinstated.

SANDERS, C. J., dissents and assigns written reasons.

SANDERS, Chief Justice

(dissenting).

The majority summarized its holding in the following language:

“We only conclude that, absent a showing of some compelling reasons for the Louisiana court to attempt to exercise continuing jurisdiction, the district court was without jurisdiction in this case to entertain a petition for custody.”

As I view it, the doctrine announced here is that there will be continuing jurisdiction in some custody cases, while in others there will be none. The test is whether or not there is a compelling reason for the court to act. I disagree with this holding. Besides being unsound in legal theory, it leaves jurisdiction in a state of uncertainty.

Jurisdiction is properly defined as the power and authority of the court to hear and determine a matter. LSA-C.C.P. Art. 1; West v. Winnsboro, 252 La. 605, 211 So.2d 665 (1968).

Louisiana Code of Civil Procedure Article 10A(5) proves that a court otherwise competent has jurisdiction of “[a] proceeding to obtain the legal custody of a minor if he is domiciled in, or is in, this state.”

On December 3, 1974, Robert Odom filed suit for a divorce and custody of his minor children in the Civil District Court of Orleans Parish. At the time of the institution of the suit, the father, mother, and children were domiciled in Orleans Parish. On May 1, 1975, judgment was rendered in favor of Robert Odom, granting him a divorce and custody of the two minor children. On September 26, 1975, the mother, Christa Odom, filed a rule in the proceeding, seeking to have the court fix her visitation rights. On October 31, 1975, after a hearing on the rule, the court fixed the mother’s visitation as follows: each Sunday, alternate Saturdays, specified days during the Christmas season, and two weeks during the summer vacation. Several months after this judgment was rendered, the father moved to San Antonio, Texas, taking the two children with him.

On September 23, 1976, the mother filed in the divorce proceeding a rule for contempt for the father’s denial of her visitation rights and for a change of custody. Alleging that the father was a nonresident, she sought the appointment of an attorney-at-law to represent the father and to receive service of the rule. It is the jurisdiction of this rule for modification of the custody decree which is now before this Court.

There can be no doubt that the court had jurisdiction to issue the original custody decree incidental to the father’s divorce action. The father, mother, and children were domiciled in Orleans Parish, Louisiana, where the matrimonial domicile had existed. See LSA-C.C.P. Art. 10A(5).

Judgments awarding custody of minor children look to the future and are subject to modification at any time. Simon v. Calvert, La., 312 So.2d 284 (1975); State v. Savoie, 185 La. 985, 171 So. 98 (1936); State v. Cooke, 183 La. 404, 164 So. 153 (1935); Ransom v. Mitchell, La.App., 193 So.2d 359 (1966).

The majority rule is that the removal of minor children from the state by the custodian does not oust the court’s jurisdiction to modify its own revocable custody decree. Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953); Bates v. Bates, La.App., 331 So.2d 122 (1976); Lynn v. Lynn, La.App., 316 So.2d 445 (1975); Pattison v. Pattison, La. App., 208 So.2d 395 (1968); People v. Rone, 3 Ill.2d 483, 121 N.E.2d 738 (1954); Seaton v. Seaton, 221 Ark. 778, 255 S.W.2d 954, 256 S.W.2d 555 (1953); Call v. Call, 250 Iowa 1175, 98 N.W.2d 335 (1959); Anno. — Custody of Child Decree — Jurisdiction, 70 A.L.R. 526; R. Leflar, American Conflicts Law, § 28, p. 50, § 245, p. 587 (1968); 24 Am. Jur.2d, Divorce & Separation, § 813, p. 924.

Mr. Justice Holmes’ famous dictum in Michigan Trust Co. v. Ferry, 228 U.S. 346, 33 S.Ct. 550, 57 L.Ed. 867 (1913) sets forth the well-accepted basis for continuing jurisdiction:

“Ordinarily jurisdiction over a person is based on the power of the sovereign asserting it to seize that person and imprison him to await the sovereign’s pleasure. But when that power exists and is asserted by service at the beginning of a cause, or if the party submits to the jurisdiction in whatever form may be required, we dispense with the necessity of maintaining the physical power, and attribute the same force to the judgment or decree whether the party remain within the jurisdiction or not. This is one of the decencies of civilization that no one would dispute.”

Professor Robert A. Leflar, a leading authority on conflict of laws, formulates the theory of continuing jurisdiction as follows:

“Once a party is effectively brought into court, whether by service, consent, appearance, or any other method, he thereafter remains subject to all further proceedings in the same case. Jurisdiction need not be newly acquired for later steps in the same suit however long they be delayed, provided only that the new step in the proceeding be brought within the time allowed by law for it.” R. Leflar, supra, § 28, p. 50.

The majority cites Louisiana Code of Civil Procedure Article 10A(5) as authority for denying the trial court jurisdiction to modify its custody award. That article, in my opinion, is inapplicable to a supplemental rule to modify a custody decree. It applies only to an original proceeding to fix custody-

So long as the custody decree remains unmodified, it will be recognized under familiar legal principles in other states. By modification, the court has the power to withdraw or alter the basis for recognition. The question of whether such a modification will be given effect in the domiciliary state addresses itself to the courts of that state. I conclude that the Louisiana court retains jurisdiction to modify its own custody decree.

The unfortunate result of the majority holding is that Louisiana residents, unlike those of most states, are deprived of a convenient forum to modify the only existing custody decree so as to adjust visitation and custody rights to meet changing, conditions. The pursuit of the custodian from state to state is an assignment that should not be lightly imposed.

For the reasons assigned, I respectfully dissent.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. George N. JONES.
    No. 58965.
    Supreme Court of Louisiana.
    May 16, 1977.

      James L. Dendy, Dendy, Davis & Hyde, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard E. Yo-kum, Dist. Atty., William M. Quin, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

A grand jury indicted the defendant, George N. Jones, for second degree murder, a violation of LSA-R.S. 14:30.1. A unanimous jury found him guilty of manslaughter, a responsive verdict. The court sentenced him to fifteen years imprisonment.

The defendant appeals. He relies on four assignments of error for reversal of his conviction and sentence.

The following background facts emerge:

The defendant and his wife, Martha, the victim of this crime, were legally separated. Martha lived in Jackson, Mississippi, with their children. On a weekend trip to Livingston Parish, she visited George in his trailer home. During the visit, George allegedly shot and killed his wife.

ASSIGNMENT OF ERROR NO. 1

The defendant contends that the trial court erred in admitting certain photographs into evidence. He. argues that the photographs lack probative value as other competent evidence establishes the facts they portray. He also avers that they are irrelevant to the only issue at trial, self-defense.

The State introduced seven black and white photographs of the victim. Five depict the victim’s body immediately after the shooting and the scene of the crime. Two, S-10 and S-ll, portray the victim after the autopsy. S-10 shows the victim’s head and the exact location of the temple wound. S-ll shows the victim’s stitched chest and the exact location of the chest wound. The defendant objected only to the admission of S-10 and S-ll.

To be admissible, a photograph’s probative value must outweigh any possible prejudicial effect upon the jury, and it must be relevant to a material issue at trial. State v. Redwine, La., 337 So.2d 1041 (1976); State v. Cooper, La., 334 So.2d 211 (1976); State v. Smith, La., 327 So.2d 355 (1976).

S-10 and S-ll are not particularly gruesome. This is especially true when compared with the other photographs admitted without defense objection, which photographs depict the bloodstained victim and the disheveled scene of the crime. In any event, neither picture is “so gruesome as to ‘overwhelm reason’ and cause a jury to lose sight of the need for the prosecutor to establish with sufficient independent evidence the guilt of the accused.” State v. Smith, supra.

In his exculpatory statement to the investigating officer immediately following the shooting, the defendant stated that he fired two shots in rapid succession in self-defense. The State counters that the defendant shot twice from different positions. Thus, the exact location of the bullet wounds, as shown in S-10 and S-ll, bears directly on the issue of self-defense.

We conclude that the photographs are relevant and that their highly probative value outweighs any possible prejudice. Therefore, the trial court properly admitted the photographs into evidence.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

The defendant objects to the trial judge imposing sentence and overruling his motion to vacate sentence. The basis of these complaints is an alleged violation of the defendant’s federal constitutional right to have an attorney present at sentencing and his state constitutional right to have the attorney of his choice present at sentencing. U.S.Const. Amend. VI; La.Const. Art. 1, § 13 (1974).

Ms. Fannie E. Burch, an attorney, appeared with the defendant at sentencing.

The defendant asked Ms. Burch, an attorney he used in civil matters, to defend him. She referred him to Mr. James McPherson, and experienced attorney in criminal cases, who agreed to conduct his defense.

The court minutes reflect that Mr. McPherson and Ms. Burch were retained defense counsel. Ms. Burch sat at the counsel table through the entire three day trial. She signed two defense motions as “Attorney for defendant.” (Mr. McPherson’s name also appears on one motion.) At trial, she cross-examined a witness.

On the date originally set for sentencing, the defendant appeared with Ms. Burch. She argued a motion for bail pending appeal. The court fixed bail, but delayed sentencing pursuant to a request by Mr. McPherson.

On the date the court imposed sentence, Ms. Burch again accompanied the defendant. She unsuccessfully requested another continuance to allow the defense to prepare a motion for a new trial. The court denied the motion and sentenced the defendant. The judge found that Ms. Burch was co-counsel for the defense.

We hold that Ms. Burch was an attorney of the defendant’s choice. She was present at sentencing. Hence, there are no federal or state constitutional infirmities in the sentence.

ASSIGNMENT OF ERROR NO. 4

The defendant assigns as error the trial court’s summary denial of his motion for a new trial which precluded a hearing on the motion. The defendant moved

“for a new trial on the basis that defendant has discovered, subsequent to trial, that two jurors were related to the prosecution’s chief witness, Deputy Sheriff Wayne Sanders and in addition one juror was related to the District Attorney.”

See LSA-C.Cr.P. Art. 851(4).

Mr. McPherson filed this motion IV2 months after sentencing and 4V2 months after conviction. The court denied it as untimely. LSA-C.Cr.P. Art. 853.

Article 853 mandates that this motion for a new trial “be filed and disposed of before sentence.” The law precludes a trial judge from considering an untimely motion for a new trial. State v. Navarre, La., 289 So.2d 101 (1974); State v. Smith, 231 La. 649, 92 So.2d 569 (1957); State v. Washington, 230 La. 181, 88 So.2d 19 (1956). Here, the trial judge assured counsel to the contrary. While denying her plea to delay sentencing so the defense could prepare a motion for a new trial, he erroneously stated:

“I will say this, for the defendant’s protection and for your protection, the sentencing today will not preclude the filing of a motion for rehearing. You can file a motion for a new trial or a habeas corpus at any time, post conviction, and this will not foreclose the filing of a motion for a new trial. No, ma’am, it will not.” (R. p. 25)

This erroneous assurance misled counsel. Therefore, in the interest of justice, we treat the untimely motion.

Initially, we note that defense counsel conceded at the hearing on the motion that it was untimely.

The motion filed is one in which

“(t)he defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment;” LSA-C.Cr.P. Art. 851(4).

Article 855 requires all motions based on Article 851(4) to

“contain allegations of fact sworn to by the defendant or his counsel, showing:
(1) (t)he specific nature of the error or defect complained of; and
(2) (t)hat, notwithstanding the exercise of reasonable diligence by the defense, the error or defect was not discovered before or during the trial.”

Neither the defendant or defense counsel swore to the motion. Although the motion stated that three jurors were related to a witness or the District Attorney, the defendant failed to name the jurors. Finally, the motion contains no allegation that, notwithstanding the exercise of reasonable diligence, the defendant did not discover the defect or error before the trial. Thus, the motion was procedurally insufficient. See State v. Veal, La., 296 So.2d 262 (1974).

In State v. Hall, 255 La. 854, 233 So.2d 541 (1970), we stated:

“When the disqualification of a juror is relied upon as a basis for a new trial, defendant must show he questioned the juror on voir dire examination concerning the subject and the juror failed to disclose the relevant facts. Such a showing is essential to satisfy the requirement of reasonable diligence. See State v. Hol brook, 153 La. 1025, 97 So. 27; State v. Nash, 45 La.Ann. 1137, 1143, 13 So. 732, 734.”

See also State v. Clark, 231 La. 807, 93 So.2d 13 (1957); State v. Vail, 153 La. 883, 96 So. 796 (1923); State v. Foster, 150 La. 971, 91 So. 411 (1922).

Neither defendant’s motion for a new trial, his assignment of error, nor his brief name the specific jurors alleged to be related to the State’s witness or the District Attorney. He does not assert that he questioned the jurors on the point of disqualification. In addition, he has not alleged that the jurors answered the voir dire examination falsely. Hence, the defendant failed “to satisfy the requirement of reasonable diligence.”

Moreover, the mere fact that a juror is related to the District Attorney or a witness does not ipso facto disqualify him from service. The State or defendant may only challenge the juror if his relationship “is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict.” LSA-C.Cr.P. Art. 797. Here, each juror testified that he could be fair and impartial.

We conclude that the motion for a new trial was without merit.

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

      . A new attorney represented the defendant for all post conviction proceedings. However, Mr. McPherson filed the motion for a new trial.

      . At the hearing on the motion, the following exchange occurred:
      BY [DEFENSE COUNSEL]: “And on the motion for a new trial, Your Honor, I’d like to proceed with that if the court will grant me permission. However, I am impaled on the horns of a legal dilemma in this that this motion was filed subsequent to sentencing.
      BY THE COURT: “I’m aware of that.
      BY [DEFENSE COUNSEL]: “Right, Your Honor. And frankly my appreciation of the jurisprudence, as well as Article 851, the court cannot entertain that motion.
      BY THE COURT: “That’s correct.” (R. p. 45)


author: SUMMERS, Justice. TATE, Justice,

text:
    STATE of Louisiana v. Ronnie JONES and Lionel Jones.
    No. 58776.
    Supreme Court of Louisiana.
    May 16, 1977.

      William J. O’Hara, III, Supervising Atty., New Orleans, Robert A. Lacobelle, Student Practitioner, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Ronnie Jones, Lionel Jones and Freddie Joseph were each charged in a single indictment with two counts of distribution of heroin, a violation of Section 966 of Title 40 of the Revised Statutes. In a jury trial Ronnie Jones was found guilty as charged on one count and guilty of the lesser included offense of possession of heroin on the other count. Lionel Jones was found guilty as charged on both counts. The jury was deadlocked as to one count against Freddie Joseph and no verdict was returned on that charge. He was found not guilty as to the other charge.

This appeal on behalf of Ronnie and Lionel Jones relies on three assignments of error.

I.

The defense asserts that the trial judge committed reversible error by denying pretrial inspection of any and all physical evidence seized.

All three defendants joined in an application for bill of particulars and prayer for oyer. They requested in the application for bill of particulars that they be advised whether any evidence in this matter had been subjected to scientific testing or chemical analysis of any kind, and, if so, they asked that the State furnish in detail such tests used and the results achieved. In response to this request, at a hearing held on February 13, 1976 to determine the sufficiency of the State’s response, the State’s attorney furnished defense counsel with a copy of the lab report — the analysis of the heroin furnished to the prosecutor by the chemist and held by the prosecutor as evidence against defendants.

In its prayer for oyer, the defense sought to require the State to furnish pretrial inspection of any and all physical evidence seized and intended to be used against the defendants. When the prosecutor answered that the defense was not entitled to this information, the trial judge agreed and defense counsel objected to this ruling. As presented at this point in the proceedings the defense request was properly denied. As phrased the request was too broad and all inclusive to come within the limited exceptions to the rule that the defense is not entitled to pretrial discovery. Later, however when defense counsel narrowed the request to ascertain the location of the heroin held by the prosecutor to “look at it,” the prosecutor said, “Well, file your motions, file your Migliore motions.” See State v. Migliore, 261 La. 722, 260 So.2d 652 (1972).

Still later, at the hearing on the sufficiency of the prayer for oyer, defense counsel said, referring to the heroin, “I just want to have the right to go and look at the evidence, not necessarily to take a chemical analysis; just to see that it’s there.” To verify his understanding of this statement of defense counsel, the trial judge inquired, “Well, you don’t want a chemist on that?”, and defense counsel answered “No, sir.”

At the trial thereafter on April 5-10, 1976 defense counsel offered to stipulate to the expertise of Officer Singer, who analyzed the heroin, but the State felt that Officer Singer’s qualifications should be made known to the jury. So Officer Singer recited his impressive education and experience, and he was found to be qualified by the court. Officer Herman Parrish, Director of the Southeastern Louisiana Crimi-nalistic Laboratory, also testified to his qualifications as an expert who was competent to test and analyze substances for heroin content. No objection was made by the defense to the qualification of these officers as experts. Both then testified in detail to the tests and analyses they conducted in arriving at the conclusion that the substance examined was heroin. Both officers were carefully and exhaustively cross-examined by the defense concerning their tests and analyses of the heroin.

At no time during the trial did the defense file the Migliore motion, seek a recess to conduct tests of its own, or object to the introduction of the testimony relating to the tests and analyses made by the State’s witnesses. Sufficient time transpired between the date of the hearing on the sufficiency of the State’s response to the application for particulars and prayer for oyer (February 13, 1976) and the trial (April 5, 1976) for the defense to file its Migliore motion, as they were invited to do by the State’s attorney. Such a motion would have enabled the State to be heard and the trial judge to make an orderly disposition and prescribe the time, place and manner of making the independent examination. A hearing on the sufficiency of the response to the application for bill of particulars and prayer for oyer does not afford the proper posture for resolution of such an issue.

The defense did not want a scientific analysis of the heroin, only to learn its location because defense counsel “may want to go look at it” — “just to see that it’s there.” With the issue so narrowly drawn, it is not shown that the trial judge abused his discretion in accepting the State’s representations that heroin was seized and in its possession. This was a sufficient reply to the application for bill of particulars, and since no scientific analysis of the heroin was sought, the showing did not warrant the inspection of the State’s evidence requested in the prayer for oyer “just to see that it’s there.”

It is implicit in the decision of State v. Migliore, 261 La. 722, 260 So.2d 682 (1972), relied upon so heavily by the defense, that sound judicial discretion decides whether in advance of trial a defendant should be granted the right to an independent scientific examination of a contraband drug in the State’s possession. Rule 16(d) of the Federal Rules of Criminal Procedure is to the same effect. It is the need for a scientific examination which justifies the production and inspection of the State’s evidence according to the Migliore rationale— that is to say, Migliore stands for the proposition that pretrial discovery and inspection of contraband drugs held by the State is only required when defendant’s guilt or innocence depends upon the identification of the substance in the State’s possession. Therefore, since the State furnished the defense with the lab report of the chemical tests and analysis performed by its expert witnesses, and the defense sought only “the right to go and look at the evidence, not necessarily to take a chemical analysis; just to see that it’s there”, there is no showing that “just to see that it’s there” would affect defendant’s guilt or innocence. The lab report furnished the requested information pertaining to the location of the heroin.

There is no merit to this assignment.

II.

At the hearing held to inquire into the sufficiency of the State’s response to the defense application for bill of particulars, defense counsel explained that one particular requested was the “rap sheet” or criminal record of the informant Earl Brown, a principal State witness. When the State’s attorney pointed out that the information was available to the defense from the court records, defense counsel replied that their clients were indigent and unable to employ an investigator to gather the information from the numerous court records throughout the State. The trial judge nevertheless ruled that the defense was not entitled to the production of the rap sheet.

In brief defense counsel argue that in a drug case where a known convicted felon, such as Earl Brown, is working with the police and is a principal State witness, the defense should have access to the rap sheet in the State’s possession for impeachment purposes. The contention is not valid.

Almost two months before trial the State’s attorney furnished defense counsel with the name of their witness, Earl Brown. On direct examination as a state witness, Brown testified to his many prior convictions in detail, to his incarceration in the state penitentiary at Angola and to his imprisonment in the federal penitentiary. He also admitted that he was then under charges for possession of narcotics, charges to which he pled guilty in federal court, and that he was awaiting sentence on these charges.

On cross-examination, defense counsel questioned Brown in detail concerning his prior conviction, which he readily admitted. Defense counsel also produced detailed information concerning Brown’s prior convictions and the charges presently pending against him. All of this information concerning Brown’s admitted criminal record was brought to the attention of the jury.

Defendant was not entitled to the information in the files of the district attorney. La.Rev.Stat. 44:3. There was, moreover, a full disclosure of Brown’s prior criminal record by the State and the defense thus fulfilling the defense plan to impeach Brown’s testimony by bringing his prior criminal record to the attention of the jury. State v. Brumfield, 329 So.2d 181 (La.1978). If Brown’s testimony could be impeached by reference to his prior criminal record the evidence produced would suffice to serve that purpose.

III.

Officer Toby Trevett of the Jefferson Parish Sheriff’s Office testified that he participated in the investigation and surveillance in this case. He enrolled Earl Brown in the case to help obtain evidence of a narcotic transaction. Brown was employed, he explained, because Brown was black and a narcotic addict with track marks on his arm; whereas, Trevett could not obtain the needed information because he was not an addict and he was not black. His involvement in undercover work would create suspicion among the “people that we were dealing with,” the black defendants in this case. He also chose Brown because Brown’s criminal record would provide further identity with the blacks trafficking in narcotics.

It is the defense contention that an effort was made to subpoena Officer Larry Taplin of the Orleans Parish Police, whose testimony would disclose that he undertook the same type undercover surveillance and investigation on behalf of the Orleans Parish Police, although he had no criminal record and was not a narcotic addict. Taplin’s testimony, according to their theory, would enable the defense to rebut the State’s evidence that people like Earl Brown were necessary in this type operation. This was important, according to the defense, because the State’s attorney referred in his closing argument to the necessity of using informants with Brown’s background.

Defense counsel argued that they used due diligence in an attempt to subpoena Officer Taplin on April 7 and 8, during the progress of the trial, but he was out of town and the subpoenas could not be served. Then on April 9, defense counsel during oral argument declared, “I saw him [Officer Taplin] in the building this morning.” At the same time he moved that an instanter subpoena be issued for Officer Taplin in order that he might ask him what he did prior to entering the drug scene, if he successfully penetrated the drug scene, if he made cases after penetrating the scene, and if he ever used narcotics prior to his entry into the drug scene.

Because he could not agree that the purpose for calling Taplin was relevant to the issues presented in the trial, the judge refused to order the instanter subpoena. Defense counsel objected and assigns the ruling as error.

The ultimate purpose of the Taplin testimony, as it is understood from defendant’s brief, was to show the type of individuals used in Orleans Parish in drug operations and the success they experienced and to compare this with a Jefferson Parish operation where a convicted felon was used as an undercover agent working within Orleans Parish. According to the defense, there was no reason why the citizens of Orleans Parish should be exposed to this type of individual by a Jefferson Parish sponsored operation, when Orleans Parish was able to use agents with Officer Taplin’s qualifications.

The relevancy of this testimony is extremely doubtful and the prejudicial effect of Officer Taplin’s failure to testify, if any, would be inconsequential. Nevertheless, if the trial judge did in fact err, the error would not warrant reversal of this conviction where the evidence of guilt was otherwise overwhelming. La.Code Crim.Pro. art. 921.

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

DIXON, J., dissents.

TATE, J., dissents and assigns reasons.

TATE, Justice,

dissenting.

I respectfully dissent.

The defendant-was entitled to issuance of the subpoena requested. La.C.Cr.P. arts. 731, 738. The trial judge is without authority to determine that a subpoena should not issue for a witness desired by the defense, whatever might be the trial court’s (reviewable) ruling as to the relevance of testimony sought to be elicited from this witness.

The erroneous denial of the accused’s right to subpoena a witness thought needed by him for his defense is a substantial violation of a statutory right granted to him to present his defense. The erroneous ruling cannot be regarded as harmless, cf. La.C. Cr.P. art. 921.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Mark PATTERSON, Appellant.
    No. 58922.
    Supreme Court of Louisiana.
    May 16, 1977.
    Elizabeth W. Cole, Orleans Indigent Defender Program, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for appellee.
   TATE, Justice.

We find merit to Assignment of Error No. 1 raised by the defendant upon his conviction of armed robbery, La.R.S. 14:64.

Immediately prior to jury selection, the defendant moved “to dismiss the jury [panel list], since the selection of the jury panel did not comply with Article 784 in picking and selecting the panel list. Names should be drawn from a petit jury venire by a lottery in open court and in the manner to be determined by the Court. This was not complied with, since the jury [panel list] has already been chosen prior to the Court.”

Upon the court’s denial of the motion, the defendant objected. The prospective jurors were thereupon called for voir dire examination in the order shown by a 40-member jury panel list made up out of court by the parish jury commission, in a manner not shown by this record.

The motion and objection prior to jury selection were to the use of a jury panel list to call prospective jurors for voir dire examination in the order established by this list. Such order resulted from procedures conducted out of court, without supervision of the court or the presence of counsel.

In State v. Hoffman, La., 345 So.2d 1 (opinion on rehearing rendered April 26, 1977), we sustained a similar objection that this method of calling jurors in the order fixed by out-of-court proceedings violated La.C.Cr.P. art. 784: “In selecting a panel, names shall be drawn from the petit jury venire indiscriminately and by lot in open court * * (Italics ours.)

The present appeal was argued and submitted for decision to this court before the argument and decision in State v. Hoffman, cited above. For the reasons set forth in that opinion, we reverse the present conviction and sentence, and we remand this case to the district court for a new trial in accordance with law.

REVERSED AND REMANDED FOR A NEW TRIAL.


text:
    STATE of Louisiana, Relator, v. James JEWELL, Respondent.
    No. 58942.
    Supreme Court of Louisiana.
    May 16, 1977.

      Sam J. D’Amico, D’Amico & Curet, Baton Rouge, for respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., R. Neal Wilkinson, Asst. Atty. Gen., for relator.
   TATE, Justice.

At the state’s instance, we granted certio-rari to review the ruling of the trial court dismissing indictments of the defendant. 341 So.2d 408. He was indicted on three counts of introducing contraband (marijuana) upon the grounds of the state penitentiary in violation of La.R.S. 14:402 (1958). The trial court held that marijuana does not fall within the type of “drug” defined as contraband by the cited statute.

Briefly, the issue is whether the classification of marijuana as a contraband “narcotic” drug by the 1958 enactment (14:402), for the purposes of that statute, was affected by the change of classification of marijuana from a “narcotic” to a “hallucinogenic” drug for the purposes of other statutes penalizing the possession and distribution of illegal drugs. For reasons to be set forth, we find no legislative intent to effect such change.

(D

La.R.S. 14:402, enacted by Act 269 of 1958, prohibited the introduction into penal institutions of “any narcotic or hypnotic or excitive drug or any drug of whatever kind or nature including nasal inhalators of any variety, sleeping pills or barbiturates of any variety that create or may create a hypnotic effect if taken internally * *

At the time of the 1958 enactment, the Uniform Narcotic Drug Law (La.R.S. 40:961 (1950) et seq.) and the Louisiana Barbiturate and Central Nervous System Stimulant Law (La.R.S. 40:1031 (1952) et seq.) were the principal statutes prohibiting as illegal the possession and distribution of certain specified drugs.

Under the former statute, marijuana was a “narcotic” drug. The latter statute referred to barbiturates as a “hypnotic” drug, see La.R.S. 40:1032 (1952), while its declaring illegal certain “central nervous stimulant ” substances can be regarded as referring to “excitive” drugs.

We thus regard the 1958 enactment as reflecting a legislative purpose to prohibit the introduction into the penal institutions of various substances including, pertinently to the present issue, those drugs of which possession and distribution were made illegal by the criminal statutes then in effect.

We so conclude to this effect as to the “narcotic or hypnotic or excitive” drugs made contraband by the 1958 statute (14:402), by construing the terms of the 1958 enactment in the light of other drug statutes in effect at the time of its enactment. See La.Civil Code Art. 17: “Laws in pari materia, or upon the same subject matter, must be construed with a reference to each other; what is clear in one statute may be called in aid to explain what is doubtful in another.”

Therefore, although scientifically speaking marijuana may not be a narcotic, hypnotic, or excitive drug, the intent of the 1958 statute (14:402) was to prohibit its introduction into the penitentiary, since marijuana was then legislatively classified as a “narcotic” drug. See La.R.S. 40:961(13) (1950), quoted in footnote 2 above.

(2)

We do not understand the accused to differ with this interpretation of the 1958 enactment through construing it with other drug laws, as their being laws in pari mate-ria. However, the accused contends with great force that likewise the 1958 statute (14:402) should today be construed in the light of the present prohibited-drug statute, the Uniform Controlled Dangerous Substances Law, which replaces those statutes in effect in 1958. See Act 457 of 1970 and Act 634 of 1972, amending and reenacting La.R.S. 40:961 et seq. For statutory history see also State v. Scott, 278 So.2d 121, 126-27 (La.1973), and State v. Welkner, 259 La. 815, 253 So.2d 192 (1971).

Under these subsequent statutory enactments, marijuana is no longer legislatively classified as a narcotic drug. See La.R.S. 40:961(20) (1972); cf. also La.R.S. 40:961(18) (1973). Likewise, by reason of these enactments, the penalties for possession and distribution of marijuana are greatly reduced.

The trial court upheld these forceful arguments. Upon the principle that criminal statutes are strictly construed, our trial brother held'that, by reason of the subsequent statutory enactments, the 1958 statute (14:402) no longer prohibits the introduction of marijuana into the state penitentiary, since it is no longer statutorily classified as a “narcotic” drug by the possession-distribution statute now in force. (By this statute, marijuana is now classified as a “hallucinogenic substance”, see La.R.S. 40:964, Schedule I-C (1972).)

(3)

The original meaning of the 1958 enactment (La.R.S. 14:402) clearly included within its prohibitory scope the introduction of marijuana onto penitentiary premises.

The issue, as we see it, is whether we can properly deduce from the subsequent amendments of other drug laws, by which marijuana is now classified as a “hallucinogenic” instead of as a “narcotic” drug, any legislative purpose by reason of which the 1958 enactment no longer includes marijuana as a contraband substance which cannot be introduced into the penitentiary.

We do not find such legislative intent.

The 1970 and 1972 enactments of the Uniform Controlled Dangerous Substances Law re-codified our laws against possession and distribution of illegal drugs. It did indeed replace the former Uniform Narcotic Drug Law, by which marijuana was classified as a “narcotic” drug. See La.R.S. 40:961 (1950, 1970, 1972). In re-classifying marijuana as a “hallucinogenic” drug, it is true, the penalties for its possession and distribution were greatly lessened by the new law. Nevertheless, possession and distribution of marijuana are still made illegal by it.

The prohibition of the 1958 statute (14:402) extends not only to illegal drugs but also to such items as intoxicating beverages, currency, and written communications (see footnote 1). The apparent thrust of the statute is in the interest of maintaining penitentiary discipline and also of preventing disorderly or illegal activity by penitentiary inmates, including through drug use or abuse (as well as through introduction of other materials or substances not in themselves unlawful unless introduced into the penitentiary in violation of the purposes and wording of the statute).

We therefore conclude that the replacement of the 1950 Uniform Narcotic Drug Law by the 1970 Uniform Controlled Dangerous Substances Act was not intended to affect the prohibition by the present 1958 act (14:402) of the introduction of marijuana into the penitentiary: Marijuana may not be a “narcotic” drug under the legislative classification of the latter act for its technical purposes; nevertheless, it remains a “narcotic” drug for purposes of the 1958 statute (14:402), both in the light of the original wording’s legislative intent and also within one of the accepted everyday meanings of the term “narcotic” drug.

(4)

The accused contends, however, that this interpretation offends the rule of statutory construction that penal statutes should be strictly construed against the state. 3 Sutherland, Statutory Construction, Section 59.03 (4th ed., Sands ed., 1974).

The rule, however, “is merely one among various aids which may be useful in determining the meaning of penal laws. This has been recognized time and again by the decisions, which frequently enunciate the principle that the intent of the legislature, or the meaning of the statute, must govern and that a strict construction should not be permitted to defeat the policy and purpose of the statute.” Sutherland, Section 59.06 at p. 18. “ ‘The rule of strict construction confines an offense to the words of the statute, but it permits the words not only to be read naturally, but to be given a meaning in harmony with the purpose and intent of the law as far as it may be done without distortion of language.’ ” Id.

The principal modern justifications for the rule of strict construction of criminal statutes is that (a) the power to define crimes lies with the legislature, so therefore the courts should not by interpretation extend the statute’s scope of criminality and (b) potential violators should receive fair warning from the terms of a statute of their conduct’s criminality. Dickerson, The Interpretation and Application of Statutes 208-211 (1975).

For the reasons earlier noted, the interpretation we have reached does not offend these functional aims of the rule of strict construction: The legislature intended the present conduct to be penalized by the statute; in the ordinary meaning of language (see footnote 4), the present conduct is adequately described by the statutory prohibition.

Consistent with the above principles, is the principle of interpretation announced by La.R.S. 14:3 of our Criminal Code that its articles “cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.”

Our interpretation of the 1958 enactment (14:402) is in accord with these principles of construction of criminal statutes.

Decree

For the reasons stated, we reverse the judgments sustaining the motions to quash the present indictments, we reinstate the indictments, and we remand these prosecutions for further proceedings in accordance with law.

REVERSED AND REMANDED.

      .La.R.S. 14:402(A) in full provides:
      “It shall be unlawful to introduce or attempt to introduce into or upon the grounds of any correctional or penal institution under the supervision or control of the Board of Institutions of the State of Louisiana or take or attempt to take or send therefrom any of the following articles which are hereby declared to be contraband for the purposes of this Section, to wit: any written communication or any currency or coin given or transmitted or intended to be given or transmitted to any inmate of any correctional or penal institution under the supervision and direction of the Louisiana State Board of Institutions; any article of food or clothing; any intoxicating beverage or beverage which causes or may cause an intoxicating effect; any narcotic or hypnotic or excitive drug or any drug of whatever kind or nature including nasal inhalators of any variety, sleeping pills or barbiturates of any variety that create or may create a hypnotic effect if taken internally; and any firearm or any instrumentality customarily used as a dangerous weapon, except through regular channels as authorized by the officer in charge of each correctional or penal institution. Whoever violates the provisions of this Subsection shall upon conviction be imprisoned in the state penitentiary for not more than three years without being eligible for a suspended sentence or for a parole.” (Italics ours.)

      . See La.R.S. 40:961(13) (1950): ‘“Narcotic Drugs’ means coca leaves, opium, cannabis, marijuana, isonipecaine and every substance neither chemically or physically distinguishable from them.”

      . See Webster’s Third New International Dictionary, verbo “excite”, with its synonym of “stimulate”, pp. 792-93; and verbo (suffix) “— ive”, with the meaning that the adjective completed by the suffix means that the adjective “performs and tends toward and serves to accomplish” the action indicated by the prefix verb, p. 1204 (1961).

      . See Webster’s New Collegiate Dictionary, verbo “narcotic”, meaning b: “a drug (as marijuana or LSD) subject to restriction similar to that of addictive narcotics whether in fact physiologically addictive and narcotic or not * * *.” p. 764 (1975).


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Rickey Joe HAWTHORNE.
    No. 59079.
    Supreme Court of Louisiana.
    May 16, 1977.
    Rogers M. Prestridge, Thomas, Prestridge & Burchett, Bossier City, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., for plaintiff-appel-lee.
   DENNIS, Justice.

In August of 1975, the body of Mrs. Dorothy Webb was found in her rural Bossier Parish home. She had been brutally beaten to death. Nine months later the police obtained information which ultimately led to the arrest of Rickey Joe Hawthorne, the appellant herein. On April 6, 1976, Hawthorne was charged by grand jury indictment with second degree murder. La.R.S. 14:30.1. He was tried by a jury of twelve, found guilty as charged, and sentenced to life imprisonment at hard labor.

The sole assignment of error presented for our review concerns the trial court’s admission into evidence of a blood stained towel which had been discovered by the police near the body of the victim at the scene of the crime. Defendant, reasoning that the towel was not relevant to any material issue in dispute, and thus that it was wholly without probative value, argues that its introduction into evidence was solely for the purpose of “arousing the passions and feelings” of the jury against him.

In considering whether demonstrative evidence is admissible over objection that it is unduly inflammatory, the test to be applied is whether the proffered evidence is relevant to any material issue in dispute, and if so whether its probative value exceeds its probable prejudicial effect. State v. Morris, 340 So.2d 195 (La.1976) (bloody clothes); State v. Gallow, 338 So.2d 920 (La.1976) (photographs); State v. Redwine, 337 So.2d 1041 (La.1976) (photographs); State v. Thomas, 329 So.2d 704 (La.1976) (“needle tracks” in defendant’s arms); State v. Smith, 327 So.2d 355 (La.1976) (photographs).

The position of the blood soaked towel near the victim’s body, and the testimony of investigators that the towel did not appear to have been used by the killer to wipe up the blood, suggested that the victim used the towel to stem the flow of blood from her initial wound. Thus, the location and condition of the towel inferentially supported the prosecutor’s argument that the victim suffered from a series of assaults, separated by distinct intervals of time. Contrary to defendant’s assertions, the towel was relevant to proof of the manner in which the victim’s death occurred, and it tended to negate defense counsel’s assertions that the defendant acted in the heat of passion, without specific intent to kill or inflict great bodily harm. Furthermore, the defense did not offer to stipulate to the position or description of the towel. Compare, State v. Gilmore, 332 So.2d 789 (La.1976).

Defendant urges that the probative value of the towel, insofar as it tended to prove a material and contested fact, was diminished by the fact that the towel was depicted in certain photographs admitted into evidence. In weighing the relative probative value of proffered evidence against its probable prejudicial effect, whether the evidence is merely cumulative is a factor to be considered. State v. Red-wine, supra. That evidence is regarded as merely cumulative does not, however, always make it inadmissible. State v. Walker, 328 So.2d 87 (La.1976).

At the time the jury saw the towel it was contained in a paper bag and, of course, the blood had dried. In considering whether the trial judge abused his discretion by allowing the towel to be admitted in this case, we have viewed the towel, and the photographic evidence introduced at trial. Although the towel, stiffened by the dried blood, has an unpleasant appearance, it is not, in our view, so morbid and gruesome as to overwhelm reason and cause the jury to lose sight of the State’s obligation to prove by independent evidence every essential element of the offense charged.

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


text:
    STATE of Louisiana v. David CAMPBELL.
    No. 58-985.
    Supreme Court of Louisiana.
    May 16, 1977.

      Emile A. Carmouche, Crowley, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., for plaintiff-appel-lee.
   TATE, Justice.

The defendant appeals from a conviction of armed robbery, La.R.S. 14:64, and a sentence to twenty years’ imprisonment at hard labor. He relies upon five assignments of error, all directed at trial court rulings sustaining state objections to defense questioning of witnesses.

We find no reversible merit to any of the assignments, for the following reasons:

Assignments 1 and 2: The trial court did not err in holding to be irrelevant as character evidence, in a prosecution for armed robbery, the details of the duties of a trustee-inmate of a prison and his freedom from guard in the performance of his duties. La.R.S. 15:479, 480.

Assignment 3: No abuse is shown of the trial court’s discretion to curtail the defendant’s repetitious examination of witnesses concerning matters thoroughly explored by the defendant’s earlier extensive cross-examination of the same witnesses. La.R.S. 15:275; State v. Batiste, 318 So.2d 27 (La.1975); State v. Scott, 278 So.2d 121 (La.1973).

Assignment 4: The trial court did not err in sustaining state objections to (what were in the context of the preceding interrogation) leading questions propounded by defense counsel to a defense witness. La.R.S. 15:277; McCormick on Evidence, Section 6 (2d ed., 1972).

Assignment 5: In introductory examination of the accused by his counsel, he was permitted to testify as to his marital status and parenthood and to his consistent employment for the three years preceding the offense charged. The state’s objection was sustained to the further defense question as to whether the accused was on relief.

In the context of the preceding examination, the probable purpose of the question was in aid of establishing the defendant’s good character. We find no error in the trial court’s upholding the state’s technical objection to the evidence sought, on the ground of its lack of materiality for the purpose offered.

Decree

Accordingly, we affirm the conviction and sentence.

AFFIRMED.


author: TATE, Justice. MARCUS, Justice

text:
    STATE of Louisiana, Appellee-Respondent, v. Peter SCHWANDER and Deborah A. Venezia, Appellants-Relators.
    No. 59006.
    Supreme Court of Louisiana.
    May 16, 1977.
    Alan James Boudreaux, Westwego, for appellants-relators..
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Metairie, for appellee-respondent.
   TATE, Justice.

The defendants Peter Schwander and Mrs. Deborah Venezia were convicted of aggravated burglary, La.R.S. 14:60, and sentenced to imprisonment at hard labor for terms of thirty years and two years respectively. Two assignments of error are presented by their appeal.

I.

The most serious issue is presented by Assignment 2. By this, the co-defendant Mrs. Venezia contends that the trial court erroneously denied her motion for acquittal at the close of the state’s case. La.C.Cr.P. art. T78.

The uncontradicted testimony of the prosecuting witness shows:

He knew Mrs. Venezia and had been intimate with her in the past. She had visited the witness’s apartment socially on several occasions.

On the morning of the burglary, she asked the witness if she could use his telephone. He conducted her to his bedroom. While she was using the telephone, she asked him for an area code for a long-distance city.

The witness had left the telephone book in the living room. When he went into the living room, he discovered the defendant Schwander had entered the apartment and had removed the victim’s guitar from its case, i. e., was in the process of committing a burglary. Schwander following the victim back into the bedroom and commenced beating him.

Pertinently to the present facts, La.R.S. 14:60 provides: “Aggravated burglary is the unauthorized entering of any inhabited dwelling . . . with the intent to commit . . . any theft therein, if the offender . . . commits a battery upon any person while in such place * *

All of the essential elements of the offense are proved by the conduct of the defendant Schwander. However, with regard to Mrs. Venezia: (1) she entered the victim’s dwelling with his consent and (2), so far as the record shows, was merely a spectator, not participating in any theft or in any battery upon the victim.

The state’s theory, however, is that she participated in the crime as a principal, by securing entry to the apartment with the intention of facilitating the subsequent unauthorized entry into it by her companion, Schwander. “All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” La.R.S. 14:24.

For appellate purposes, the denial of a motion for acquittal does not raise a reviewable question of law unless there is a total lack of evidence to prove the crime or an essential element of it. State v. Douglas, 278 So.2d 485 (La.1973).

In the present instance, however, the state’s uncontradicted evidence negates that Mrs. Venezia aided or abetted Schwan-der in the commission of the burglary or in any other way participated with him in it as a principal.

In addition to testifying to admitting Mrs. Venezia voluntarily to use the telephone, the victim positively testified that:

(1) When Schwander walked into the bedroom, she exclaimed to him, “I told you to stay in the car.” Tr. 30, 33-34.

(2) When the victim left the bedroom to enter the living room where the burglary was taking place, Mrs. Venezia was unconcerned and made no attempt to stop him, although fully realizing he was going into the living room. Tr. 28-29, 34.

(3) He, the victim, did not observe Mrs. Venezia do any act, nor did she participate in his beating. Tr. 24, 33-34.

The state cannot point to any evidence at the trial by which the trial jury could reasonably infer that she aided and abetted in the burglary. Contrariwise, the uncontra-dicted testimony of the prosecuting witness shows that Mrs. Venezia was voluntarily admitted into the premises, did not herself participate in the burglary, and was as surprised as the victim by the unauthorized entry into her friend’s apartment by Schwander, who was supposed to be waiting for her in the automobile outside.

A trial jury’s inference that an accused aided and abetted in a crime cannot be “mere speculation based upon guilt by association.” State v. Williams, 310 So.2d 513, 515 (La.1975). The issue of whether circumstantial evidence excludes every reasonable hypothesis of innocence, as required by La.R.S. 15:438, presents a reviewable issue of law. State v. Pryor, 306 So.2d 675 (La.1975), and decisions therein cited. See also State v. Elzie, 343 So.2d 712 (La.1977).

Applying these principles, the un-contradicted proof submitted to the jury presents no evidence that Mrs. Venezia aided and abetted Schwander in the commission of the aggravated burglary; it, in fact, negates any inference to such effect. Mrs. Venezia’s conviction and sentence must be set aside, and her case remanded for a judgment of acquittal in accordance with this opinion.

2.

The other assignment does not present a serious issue:

Assignment 1 concerns the denial of a motion for a mistrial. The motion is made with respect to a response by a state witness, which allegedly referred to another crime committed by the defendant Schwan-der.

The unsolicited response was ambiguous in nature. It did not so unmistakably refer to prior criminal conduct as to deprive the accused of a fair trial. The trial court’s admonition to the jury to disregard the statement cured what little prejudice, if any, resulted from the response. See: La. C.Cr.P. art. 771; State v. Hatter, 338 So.2d 100 (La.1976); State v. Overton, 337 So.2d 1058 (La.1976); State v. Price, 325 So.2d 780, 786 (La.1976).

Decree

For the reasons assigned, we affirm the conviction and sentence with regard to the defendant Schwander; but we reverse the conviction and sentence as to the defendant Venezia, and remand her case for a judgment of acquittal as required by La.C.Cr.P. art. 778 (1966).

CONVICTION AFFIRMED AS TO ONE DEFENDANT; REVERSED AS TO THE OTHER, AND REMANDED AS TO HER.

SANDERS, C. J., concurs in affirmance of Schwander conviction but dissents from reversal of the Venezia conviction.

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

MARCUS, Justice

(concurring in part and dissenting in part).

I concur in the affirmance of the conviction and sentence of defendant Schwander; I dissent from the reversal of the conviction and sentence of defendant Venezia. In my view, there was some evidence from which the jury could reasonably infer that Mrs. Venezia aided and abetted in the burglary.

      . The trial was held before an amendment to the article by Act 527 of 1975 deprived the trial court of the power to direct verdicts in jury cases.


author: DIXON, Justice. MARCUS, Justice

text:
    Bobbye Kirkland, wife of and John Howard McCOY, Sr. v. WINN-DIXIE LOUISIANA, INC.
    No. 58967.
    Supreme Court of Louisiana.
    May 16, 1977.

      Samuel S. Dalton Law Office, Michael W. Fontenot, New Orleans, for plaintiff-rela-trix.
    John T. Holmes, Christovich & Kearney, New Orleans, for defendant-respondent.
   DIXON, Justice.

The plaintiffs, husband, and wife, Bobbye Kirkland and John Howard McCoy, Sr., brought an action for damages against the defendant, Winn-Dixie Louisiana, Inc., for injuries suffered by the wife in a slip and fall accident in defendant’s store. Plaintiffs prayed for a jury trial; when the jury bond was fixed at $1000.00, the plaintiffs filed a motion to permit the wife to proceed in forma pauperis. The wife’s claim, of course, was for her personal injuries; the husband’s claim was for medical expenses and for the loss of the wife’s earnings. The husband waived his right to a jury trial and refused to permit the community to post the $1000.00 bond.

Evidence was taken as to the means of the plaintiffs, and the trial judge declined to permit the wife to proceed in forma pauperis. La.App., 339 So.2d 976. On application for writs to the Court of Appeal, the trial court was affirmed. We granted writs to review these rulings. 341 So.2d 406 (La.1977).

The record discloses that the plaintiff wife is employed parttime at a hospital, and makes about $300.00 a month. She has no assets other than her interest in the community, which apparently only consists of the earnings of the husband and wife. The plaintiff husband is employed at $850.00 a month. The record discloses no other community property and no other separate property of the plaintiffs. All their earnings are used “to support the family.”

The trial judge denied the wife’s motion to proceed in forma pauperis, believing that the earnings of the husband and wife, totaling $1150.00 a month, would enable them to post the jury bond.

The issue to be decided is whether the existence of community assets would prevent the wife from proceeding in forma pauperis in an action for damages which, if recovered, would constitute her own separate property, and not fall into the community. We answer the question in the negative.

There is no allegation by the defendant that the wife has sufficient separate property to prevent her from proceeding in for-ma pauperis. In addition, it has not been seriously argued that when a wife seeks to prosecute an action which is hers alone, that the cost of litigation is a “necessary” which the husband is obligated to provide. C.C. 120. See Fontenot v. United States Fidelity & Guaranty Co., 113 So.2d 33 (La.App.1959).

Mrs. McCoy testified that there was no premarital contract providing that the community of acquets and gains would not come into effect. See C.C. 2392. Therefore, Mrs. McCoy’s earnings were community property. C.C. 2334, 2402.

While the wages of the two spouses are community property during the existence of the marriage, the wife, with certain exceptions (e. g. C.C. 2425) does not have the use of her one-half of the community prior to the dissolution of the marriage. The wife’s interest in the community has been described as an “imperfect ownership without use.” Creech v. Capitol Mack, Inc., 287 So.2d 497 (La.1974).

C.C. 2334 provides in pertinent part:

“The earnings of the wife when living separate and apart from her husband although not separated by judgment of court, her earnings when carrying on a business, trade, occupation or industry separate from her husband, actions for damages resulting from offenses and quasi offenses and the property purchased with all funds thus derived, are her separate property.” (Emphasis added).

C.C. 2402 provides:

“This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase. But damages resulting from personal injuries to the wife shall not form part of this community, but shall always be and remain the separate property of the wife and recoverable by herself alone; ‘provided where the injuries sustained by the wife result in her death, the right to recover damages shall be as now provided for by existing laws.’ ” (Emphasis added).

In Fields v. Rapides Parish School Board, 228 La. 148, 81 So.2d 842 (1955), Mrs. Fields sued the school board for reinstatement to the position of teacher and for lost wages during her period of dismissal. (Previously this court had held that the right of a permanent teacher to sue for reinstatement and back pay was a right personal to the teacher and that it had to be asserted by the teacher. State ex rel. Fields v. Rapides Parish School Board, 227 La. 290, 79 So.2d 312 (1955)). Mrs. Fields sought to prosecute that action in forma pauperis. The plaintiff had no funds of her own but the trial judge found that her husband worked in a dry cleaning establishment earning, or capable of earning, $40.00 per week. Therefore, the trial judge denied the plaintiff the right to proceed in forma pauperis. This court reversed the ruling of the trial judge with the following language:

“In the case of Gilmore v. Rachl, 202 La. 652, 12 So.2d 669 [1943], this Court ignored community holdings. It permitted a married woman, who was suing for damages for alleged public slander, to proceed in forma pauperis instead of furnishing a cost bond for $300.
“Since the requirements of our previous decision in this litigation are that the action is personal to the wife and that this condition prevails up until the time the fund is collected, it is, therefore, manifest that having no funds of her own the relatrix is entitled to have this case tried and determined without the prepayment of costs.” 228 La. at 155, 81 So.2d at 844.

The case before us now presents virtually the same issue for determination, with one exception: in the present suit the wife is asserting a claim for her damages and the husband is asserting a claim for the losses suffered by the community. The Court of Appeal noted this difference in distinguishing the Gilmore and Fields decisions:

“We distinguish the present case from the Fields and Gilmore cases, both of which involved claims by the wife alone on causes of action which accrued to her. We believe that the posture of the present cases raises significant policy questions which justify distinguishing the two cited cases.
“Here, both spouses are together attempting to recover all of the damages arising from an injury to one spouse, but are together unwilling to underwrite the risk of an unsuccessful trial by jury. To allow the wife to proceed alone with a jury trial in forma pauperis under these circumstances would make ludicrous the fundamental concept of C.C.P. art. 5181 et seq., which accord a privilege to indigent litigants who would otherwise be deprived because of their poverty of benefits to which they are entitled.
“While theoretically a husband and wife with separate causes of action arising out of the same injury could proceed in separate actions in separate parishes (if there were no venue problems), we believe that to allow them to proceed in the same action, one before the judge upon payment of costs and the other before the jury in forma pauperis, does substantial violence to the purpose of the forma pau-peris procedure and sets dangerous precedents. If this motion were granted, virtually every husband-wife cumulated action for damages from injuries sustained by the wife could be separately prosecuted in forma pauperis, without regard to whether the husband-wife partnership is able to afford the cost of prosecuting the claim. Perhaps two unrelated plaintiffs, joined in a cumulated action, would be entitled to the relief sought by this motion. But the relationship between these plaintiffs, acting in concert to recover all damages arising out of an injury to one party, justifies the trial judge’s denial of the motion.” 339 So.2d at 977.

During argument of this case, counsel for defendant Winn-Dixie admitted that if Mrs. McCoy were prosecuting her action alone (i. e., if the husband were not seeking damages in the same suit for losses suffered by the community), she could proceed in forma pauperis. We do not find this distinction controlling.

The presence of Mr. McCoy in the lawsuit does not alter the basic nature of the claims. Mrs. McCoy is only seeking to recover general damages for her own injury. Under the interpretation advanced by the Court of Appeal and the defendant, if Mr. and Mrs. McCoy had decided to pursue their claims in separate suits, Mrs. McCoy would be able to proceed in forma pauperis. To deprive her of that right, simply because both plaintiffs are asserting their claims in one suit, is to create a purely artificial distinction. Since Mrs. McCoy has no other separate property and is asserting an action which is her separate property, she should be permitted to proceed with this action without being required to post a jury bond.

Defendant’s reliance on Heyse v. Fidelity & Casualty Co. of New York, 255 La. 127, 229 So.2d 724 (1969), is misplaced. The Heyse case overruled a holding in Fontenot v. United States Fidelity & Guaranty Co., supra, that a father’s suit to recover damages for his child’s personal injuries was not a suit concerning the child’s property within the meaning of C.C. 589.

Fontenot v. United States Fidelity & Guaranty Co., supra, decided two points. There, the plaintiffs were husband and wife, parents of a child. Mr. Fontenot sued in his capacity as administrator of his minor child for injuries suffered by the child. Mrs. Fontenot sued for damages which she suffered in the accident. The district court found that the plaintiffs were able to pay costs, and declined to permit them to proceed in forma pauperis. The Court of Appeal reversed.

The only property owned by the plaintiffs was community assets. The Court of Appeal held that there was no legal obligation under which the wife could secure community funds to prosecute a claim for damages, her separate property, and the wife without separate means was permitted to prosecute the suit in forma pauperis.

Heyse reversed Fontenot only with respect to the prosecution of the minor’s claim by the father of the minor. Heyse relied on a specific Civil Code article which seemed to require the father to provide the expenses of litigation on behalf of their child, over whose property the father had the usufruct:

“Fathers and mothers who enjoy the legal usufruct of the property of their children, are bound to support the expenses of all suits concerning that property, in the same manner as if they were the owners of it.” C.C. 589.

The Heyse ease, although exercising broad language in overruling Fontenot v. United States Fidelity & Guaranty Co., was not concerned with the problem of a wife with no separate property whose husband would not permit the solvent community to provide the costs of litigating the wife’s separate claim.

For the reasons assigned, the judgments of the trial court and the Court of Appeal are reversed and the case is remanded to the district court for further proceedings not inconsistent with the views herein expressed; defendant is east for all costs of this determination.

SANDERS, C. J., dissents.

SUMMERS, J., dissents.

MARCUS, J., dissents and will assign reasons.

MARCUS, Justice

(dissenting).

La.Civ.Code art. 119 provides that a husband and wife owe to each other mutually, fidelity, support and assistance. La.Civ. Code art. 120 further directs that a husband is obligated to furnish his wife with whatever is required for the convenience of life, in proportion to his means and condition. In my view, these articles as well as the rationale in Heyse v. Fidelity & Casualty Co. of N. Y., 255 La. 127, 229 So.2d 724 (1969) contemplate an obligation on the part of the husband as head and master of the community to furnish court costs in connection with a suit by the wife for compensatory damages when the assets of the community are sufficient to enable payment of such costs. Under the facts of this case, I am of the opinion that the plaintiff wife is not entitled to proceed in forma pauperis. Accordingly, I respectfully dissent.