author: MARCUS, Justice. SUMMERS, Chief Justice

text:
    Cylyce Eidson CRAIG v. Johnnie Floyd CRAIG, Jr.
    No. 62396.
    Supreme Court of Louisiana.
    Dec. 13, 1978.
    Dissenting Opinion Jan. 29, 1979.
    Robert W. Fenet, F. Steve Landreneau, Woodley & Fenet, Lake Charles, for plaintiff-applicant.
    C. Allen Bradley, Jr., Evans & Bradley, De Ridder, for defendant-respondent.
   MARCUS, Justice.

Cylyce Eidson Craig filed suit against her husband, Johnnie Floyd Craig, Jr., for a separation from bed and board on the ground of abandonment. Suit was filed in Calcasieu Parish. Defendant husband filed an exception of improper venue alleging that the matrimonial domicile was in Beauregard Parish and that, since his wife was not forced to leave the matrimonial domicile due to any misconduct on his part, she could not establish a separate domicile in Calcasieu Parish. Therefore, her action for separation from bed and board was filed in a court of improper venue. Plaintiff wife thereafter filed a supplemental and amended petition in which she specifically pleaded that La.Civil Code art. 39 was unconstitutional insofar as it enabled a husband, but not a wife, to establish a separate domicile and there bring an action for a separation from bed and board.

At the hearing on defendant’s exception of improper venue, the parties stipulated that Beauregard Parish was the matrimonial domicile and that plaintiff had moved to Calcasieu Parish with the couple’s child in order to live with her parents. The trial judge maintained defendant’s exception of improper venue, noting that the stipulation of facts contained no information or evidence establishing that plaintiff had left the matrimonial domicile (Beauregard Parish) for good cause.

The court of appeal affirmed the judgment of the trial court, holding that article 39, as applied to the venue requirements of La.Code Civ.P. art. 3941 is constitutional. On plaintiff’s application, we granted cer-tiorari to review the correctness of this decision.

The sole issue presented for our resolution is whether article 39 is unconstitutional either under the state or federal constitutions, insofar as it enables a husband, but not a wife, to establish a separate domicile and there bring an action for annulment of marriage, separation from bed and board, or divorce.

Venue means the parish where an action or proceeding may properly be brought and tried under the rules regulating the subject. La.Code Civ.P. art. 41. An action for annulment of marriage, separation from bed and board, or divorce must be brought in a parish where either party is domiciled, or in the parish of the last matrimonial domicile. La.Code Civ.P. art. 3941. This prescribed venue is jurisdictional; it may not be waived and a judgment rendered in any of these actions by a court of improper venue is an absolute nullity. Id; Official Comment (f).

To determine domicile for the purpose of satisfying the venue requirements of article 3941 of the Code of Civil Procedure, La.Civil Code art. 39 declares that a married woman has no other domicile than that of her husband. Our jurisprudence has created an exception to this general rule of article 39 in providing that a married woman may acquire a domicile separate from that of her husband if she is abandoned, or if her husband’s misconduct justifies her leaving. Johnson v. Welsh, 334 So.2d 395 (La.1976); Berry v. Berry, 310 So.2d 626 (La.1975); Bush v. Bush, 232 La. 747, 95 So.2d 298 (1957); Smith v. Smith, 43 La.Ann. 1140,10 So. 248 (1891). Misconduct on the part of the husband that would justify the wife’s establishing a separate domicile is substantially equivalent to the conduct that would constitute grounds for a separation. Johnson v. Welsh, supra ; Berry v. Berry, supra. It is thus apparent that, if the wife chooses to bring an action for annulment of marriage, separation from bed and board, or divorce in a parish other than that of the matrimonial domicile or the husband’s domicile, she must offer proof of her husband’s misconduct (equivalent to conduct that would constitute grounds for a separation) which justifies her in establishing a separate domicile. On the other hand, if the husband chooses to bring such an action in a parish other than the matrimonial domicile, he need not offer proof of the wife’s misconduct. Hence, article 39, as it is applied to the venue requirements of article 3941 of the Code of Civil Procedure creates a sex-based classification treating husbands and wives in a dissimilar manner.

Article 1, section 3 of the Louisiana Constitution of 1974 provides:

No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.

In State v. Barton, 315 So.2d 289 (La.1975), we defined the scope and effect of this constitutional provision:

The first sentence of the section was intended only as a restatement of the federal equal protection guarantee. . The second sentence (which uses absolute language), in comparison with the third sentence (which employs the arbitrary, capricious, or unreasonable formula), permits no discrimination because of race or religious ideas, beliefs, or affiliations.
The third sentence delineates the limitation on the power of the state to discriminate by law against persons of specified classes, including members of either sex. The limitation imposed does not absolutely preclude the legislature from defining the range of persons affected by legislation according to the various classes listed in the section; rather, it proscribes the unreasonable or arbitrary definition of those affected according to class. Accordingly, if the discrimination that results from the legislative classification is found to be within reason, the statute is not in violation of the constitution.

We are unable to say that the discrimination that obviously results from this legislative classification treating husbands and wives in a dissimilar manner is within reason. We discern no legitimate purpose served by the classification. We reject the reasoning of the appeals court that the classification was adopted as part of the overall “pattern of laws designed to protect the marriage, home and family.” Rather, we consider the sole effect of the sex-based classification is to afford the husband a procedural advantage denied the wife in an action for annulment of marriage, separation from bed and board, or divorce, i. e., the right to establish a separate domicile in which to bring the action. The procedural right of the wife to establish a separate domicile from that of her husband in satisfaction of the venue requirements of article 3941 of the Code of Civil Procedure is in no way reasonably related to the marital obligations mutually owed by the husband and the wife or to the determination of which party prevails on the merits of the action. Therefore, we conclude that the sex-based classification created by article 39, as it applies to the venue requirements of article 3941 of the Code of Civil Procedure, arbitrarily, capriciously and unreasonably discriminates against a person (a married woman) because of sex. Hence, article 39, as it applies to the venue requirements of article 3941 of the Code of Civil Procedure, violates article 1, section 3 of the Louisiana Constitution of 1974 insofar as it enables a husband, but not a wife, to establish a separate domicile and there bring an action for annulment of marriage, separation from bed and board, or divorce.

Accordingly, in the instant case, plaintiff wife was free to establish a domicile separate from that of her husband in Calcasieu Parish for the purpose of bringing an action for separation from bed and board on the ground of abandonment (La.Code Civ.P. art. 3941) without first proving that her husband abandoned her or that his misconduct justified her leaving. The trial judge incorrectly sustained the exception of improper venue. The court of appeal erred in affirming the ruling of the trial court. We must reverse.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and the case is remanded to the district court for further proceedings in accordance with the views herein expressed.

SUMMERS, J., dissents and will assign reasons.

SUMMERS, Chief Justice

(dissenting).

I dissent for the reasons assigned by the Court of Appeal. See 359 So.2d lily (La. App. 3rd Cir.)

      . La.Civil Code art. 39 provides:

        A married woman has no other domicile than that of her husband; the domicile of a minor not emancipated is that of his father, mother, or tutor; a person of full age, under interdiction, has his domicile with his curator. (emphasis added)

      . La.Code Civ.P. art. 3941 provides:
      An action for an annulment of marriage, for a separation from bed and board, or for a divorce shall be brought in a parish where either party is domiciled, or in the parish of the last matrimonial domicile.
      The venue provided in this article may not be waived, and a judgment rendered in any of these actions by a court of improper venue is an absolute nullity.

      . 359 So.2d 1119 (La.App. 3d Cir. 1978).

      . 360 So.2d 1350 (La.1978).

      . In Johnson v. Welsh, 334 So.2d 395 (La.1976), we held that the court of appeal improperly held article 39 unconstitutional as it applied to article 3941 of the Code of Civil Procedure because the constitutionality of article 39 had not been attacked by the pleadings in the trial court and, therefore, the question of its constitutionality was not properly before that court. In addition, we noted that the court of appeal’s determination of unconstitutionality was contrary to the settled judicial practice of declining to determine the constitutionality of laws unless such a determination was necessary for disposition of the cause. In Johnson, a determination of unconstitutionality was not necessary for disposition of the cause because we found from a review of the record that the husband’s misconduct was sufficient to justify the wife in establishing a separate domicile. In the instant case, the constitutionality of article 39, as applied to article 3941 of the Code of Civil Procedure, was attacked by the pleadings in the trial court and the stipulation entered into between the parties precludes a finding that the wife was justified in establishing a separate domicile.

      . As we find article 39 of the Civil Code as applied to article 3941 of the Code of Civil Procedure unconstitutional under a provision of our state constitution, it is not necessary that we consider this sex-based classification under the federal constitution.


source: Caselaw Access Project

author: TATE, Justice.

license: Public Domain

text:
    CITY OF KENNER v. William Ennis LAWRENCE and Municipal Fire and Police Civil Service Commission of the City of Kenner.
    No. 61903.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    Rehearing Denied Jan. 26, 1979.

      Samuel W. Ethridge, Kenner, Cyril H. Reisgen, II, New Orleans, for defendants-applicants.
    H. A. Vondenstein, Kenner, for plaintiff-respondent.
   TATE, Justice.

The principal issue before us is whether a civil service board has standing to invoke judicial review, independent of an aggrieved employee’s loss of his own appellate rights through untimely filing of an appeal bond.

Police Officer Lawrence was dismissed by the City of Kenner on allegations of conduct unbecoming an officer. Lawrence appealed his dismissal to the municipal fire and police civil service commission, which ordered his reinstatement. The City sought judicial review of the board’s order. The district court ultimately set aside the ruling of the board and reinstated the dismissal of Officer Lawrence by the City.

Lawrence and the civil service commission appealed this judicial reversal of the board’s order to the employing city to reinstate the policeman. Lawrence failed to file his bond timely, so his appeal was dismissed. 355 So.2d 268 (La.App. 4th Cir. 1977).

The intermediate court further dismissed the civil service commission’s appeal, however. It held that it had “acted in its quasi-judicial capacity and as such it has no right of appeal”, 355 So.2d 268 at 269, when the aggrieved employee had failed to perfect his own appeal timely.

We granted certiorari, 357 So.2d 1154 (La.1978), primarily to review this holding.

We find no error in the intermediate court’s dismissal of Lawrence’s appeal in his individual interest, since he did not file timely the devolutive appeal bond then required.

However, the commission itself, as a governmental agency exercising public power and functions is exempted by statute from the requirement of furnishing an appeal bond. La.R.S. 13:4581 (1960). Its appeal, therefore, is timely.

We find no authority for the intermediate court’s holding that the timely-taken appeal by the commission must be dismissed, allegedly because it has no standing independent of the aggrieved employee to challenge the ruling of the trial court.

La.R.S. 33:2477 (1950) provides that the civil service board shall: “(1) Represent the public interest in matters of personnel administration in the fire and police services of the said municipal government.” Further, La.R.S. 33:2506 (1950) states: “If this Part, or its enforcement by the board is called into question in any judicial proceeding, or if any person fails or refuses to comply with the lawful orders or directions of the board, the board may call upon the attorney general, or the chief legal officer of the municipality, or may employ independent counsel to represent it in sustaining this Part [i. e., the civil service statute] and enforcing it.”

The legislative intent reflected is that the board has the independent right to seek judicial enforcement of its actions, regardless of whether the employing agency or the employee desires or is able to do so. See rulings to same effect, with regard to the state civil service commission’s authority to litigate concerning its rulings, La.R.S. 13:3417 (1962): Smith v. Division of Administration, 362 So.2d 1101 (La.1978) (affirming 358 So.2d 1291 (La.App. 1st Cir. 1978) on this procedural point; Cross v. Delgado Junior College, 331 So.2d 599 (La.App. 1st Cir. 1976)).

The present civil service commission’s interest in this case is not limited solely to the protection of Officer Lawrence’s interest in his job. The commission is also concerned with the maintenance of a cohesive personnel policy and the ability of the commission to oversee the hiring and firing of employees in the best interest of the public.

Here, for instance, the merits of the appeal concern the legally required burden of proof or showing required of the appointing authority to discharge a probationary employee. Reversing the board’s ruling, the district court held that the appointing authority need show only that the employee was afforded a fair opportunity to show he was policeman material, but that otherwise the appointing authority had absolute discretion to terminate the employment of such an employee.

The district court’s ruling may well have been correct. However, the civil service commission’s interest in securing a judicial determination on its merits of this issue of general concern to civil service administration transcends any private or individual interest of Officer Lawrence. The latter’s failure to appeal timely or his acquiescence in the judicial reversal of the commission does not deprive the civil service commission of its legal right and interest to secure a judicial determination of this issue. See Smith v. Division of Administration, cited above.

If the civil service board should prevail, the vindication of its position in the administration of the civil service statute may incidentally benefit Officer Lawrence by securing his reinstatement as a probationary employee. Nevertheless, that effect does not deprive the board of its legal right and interest to secure full judicial review of an adverse court ruling with regard to its conduct of civil service hearings.

Accordingly, although we affirm the intermediate court’s dismissal of the appeal of Officer Lawrence individually, we reverse its dismissal of the civil service commission, and we remand these proceedings to the intermediate court for its determination of the commission’s appeal on its merits.

COURT OF APPEAL DECISION AFFIRMED IN PART, REVERSED IN PART; COMMISSION’S APPEAL REINSTATED, AND CASE REMANDED TO THE INTERMEDIATE COURT.

SUMMERS, J., dissents.

      . We pretermit discussion of whether Lawrence’s failure to appeal timely might be interpreted as having the effect of making the effective date of reinstatement ordered, if any, to be that of the date of finality of any judgment of reinstatement obtained by the civil service commission rather than that of the date of Lawrence’s initial discharge.


author: TATE, Justice. SANDERS, Chief Justice

text:
    STATE of Louisiana v. Larry Joe PHILLIPS.
    No. 61975.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    Rehearing Denied Jan. 26, 1979.

      John Wilson Reed, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Robert F. Barnard, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Phillips was convicted of two counts of aggravated crime against nature, La.R.S. 14:89.1(5) (1962), and sentenced to fifteen years imprisonment at hard labor (the maximum) on each count, with the sentences to be consecutive. Five assignments of error are argued by his appointed counsel. The accused also files pro se pleadings suggesting certain additional contentions.

In our view, the principal contentions of error are: I. Whether La.R.S. 14:89 (1975) and 14:89.1 (1962), prohibiting crime against nature and aggravated crime against nature respectively, are unconstitutionally vague; II. Whether penetration is required for proof of anal-genital and of oral-genital sexual activity proscribed by the statutes; and III. Whether a criminal defendant’s attorney sitting beside him in open court may waive his right to a jury trial.

Context Circumstances

The bill of information charges the defendant Phillips with two counts of the crime charged, in both instances alleging that the accused had “unnatural carnal copulation” during June, 1976 with a named individual male, thirteen years of age, with the defendant being at least three years older than the named victim. Count 1 alleges that the defendant “did place his penis in the area of the anus of the said” juvenile. Count 2 alleges that the defendant “did place his mouth upon the penis of the said” juvenile.

The proof corresponds to the charges. On Count 1, the juvenile testified that the accused, after placing a lubricant between the juvenile’s legs, placed his penis between the youth’s legs for about two minutes. On Count 2, the juvenile testified that the accused sucked his penis for about five minutes. The incidents occurred consecutively within the short span of minutes.

The accused did not testify. However, his ward (a 17-year-old boy) was present on the occasion of the accused’s visit to New Orleans and on the beach excursion preceding the alleged incidents. This witness denied that any sexual activity whatsoever took place.

The gravamen of the offense charged is that the accused committed a crime against nature, La.R.S. 14:89 (1975) (“unnatural carnal copulation”, involving “the use of the genital organ of one of the offenders”) with the juvenile, which constituted aggravated crime against nature, La.R.S. 14:89.1(5) (1962), because the juvenile was under the age of 17, while the accused was at least three years older. The statutes are set forth in full in Appendix 1 below.

I. Constitutionality of Statutes.

By a motion in arrest of judgment, La.C. Cr.P. art. 859(2), the defendant questions the constitutionality of the statute under which convicted.

By his pro se pleadings, the accused contends that the statutory definition of crime against nature, La.R.S. 14:89, is unconstitutionally vague, as not affording a potential offender adequate notice of the conduct prohibited.

A statute defining a crime against nature, even though the statute itself does not specify the details of the crime, will not be held unconstitutionally vague if it has been sufficiently defined by authoritative judicial interpretation that a potential offender has notice of what is criminally proscribed. Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973).

Louisiana’s statute meets that test. The statutory terms defining the crime as “unnatural carnal copulation” involving the “use of the genital organ of one of the offenders” have acquired historically and jurisprudentially a definite meaning. As between human beings, it refers only to two specified sexual practices: sodomy (anal-genital intercourse of a specified nature, see below) and oral-genital activity (whereby the mouth of one of the participants is joined with the sexual organ of the other participant).

See: State v. Lindsey, 310 So.2d 89, concurring opinion 310 So.2d 92 (La.1975); State v. Young, 249 La. 1053, 193 So.2d 243 (1966); State v. Bonanno, 245 La. 1117, 163 So.2d 72 (1964); State v. Murry, 136 La. 253, 66 So. 963 (1914); State v. Long, 133 La. 580, 63 So. 180 (1913); State v. Vick-nair, 52 La.Ann. 1921, 28 So. 273 (1900); State v. Williams, 34 La.Ann. 87 (1882).

For similar reasons, the crime of aggravated crime against nature, La.R.S. 14:89.1, has withstood similar attacks of unconstitutional vagueness. State v. McCoy, 337 So.2d 192 (La.1976); State v. Bluain, 315 So.2d 749 (La.1975).

By Assignment 7, the defendant further contends that the provision of R.S. 14:89.-1(5) making a crime against nature aggravated, “where the victim is under the age of seventeen years and the offender is at least three years older than the victim” is unconstitutionally vague and indefinite. He argues that the statute provides no way of identifying which of the two parties to the consensual act is to be regarded as the victim and which is to be regarded as the offender.

The contention is refuted by the precise terms of the statute, by which the victim is the participant who is under the age of seventeen years. The rationale behind the statute is that a child of that age is incapable of giving a mature consent to actions of this nature performed with an older person, see Perkins on Criminal Law 391 (2d ed. 1969), and is thus in need of special protection by criminal sanction.

We find no vagueness in the statute. Nor do we find the legislative classification to be irrational in the light of the social evil addressed, despite counsel’s forceful suggestion of possible bizarre applications (e. g., a 16-year-old prostitute being a “victim” of a 19-year-old friend or customer).

II. Is “penetration” statutorily required for anal-genital copulation and for oral-genital copulation, so as to be within the conduct proscribed by the crime-against-nature statutes?

By motions for directed verdict, and a new trial (alleging that an essential element of the crime was not proved), and in arrest of judgment (alleging that the bill of information does not charge a crime, since an essential averment is omitted, La.C.Cr.P. art. 859(1)), the defendant contends that the prosecution falls because it did not charge or prove that there was actual penetration of the anus (Count 1) (Assignments 3, 5). By motion in arrest of judgment, he further contends that the Count 2 of the bill of information is defective because it does not allege penetration of the mouth (Assignment 5).

A. Anal Copulation

As earlier stated, the anal-genital crime against nature between human beings proscribed by our statute has jurispru-dentially been held to be the conduct proscribed by the common-law crime of sodomy. State v. Murry, 136 La. 253, 66 So. 963 (1914); State v. Long, 133 La. 580, 63 So. 180 (1913); State v. Williams, 34 La. Ann. 87 (1882). See State v. Lindsey, 310 So.2d 89, concurring opinion 310 So.2d 92 (La.1975). Only because of this definite meaning of the statutory language has the enactment been saved from unconstitutional vagueness.

The crime of sodomy, or anal-genital intercourse, was clearly defined at common law, and penetration of the anus by the penis was an essential element. Perkins on Criminal Law 389-90 (2d ed. 1969); Clark & Marshall, A Treatise on Crimes, Section 11.-07 (7th ed., 1967). See also discussion and citation of authority in State v. Morrison, 25 N.J.Super. 534, 96 A.2d 723 (1953).

The charge by Count 1 was the defendant “did place his penis in the area of the anus” of the victim. The only evidence on this count at the trial was that the defendant placed his penis between the victim’s legs.

There was thus no evidence of the essential element of penetration. The defendant’s motion for a directed verdict and for a new trial on Count 1, because of the total lack of evidence as to this essential element, is therefore well founded.

In arguing that penetration is not required, the state relies upon the 1975 amendment’s exclusion from the crime against nature of anal sexual intercourse under circumstances constituting the rape crimes, La.R.S. 14:41, 41.1, 42, and 43 (see italicized clause in La.R.S. 14:89 (1975) quoted in full in Appendix 1). Since penetration is required for the rape crimes, the state contends that it is not required in order for anal-genital conduct to constitute a crime against nature.

The rape crimes, however, concern sexual intercourse, whether anal or vaginal, committed without the consent of the other party. In the case of a juvenile, it is “deemed to be without the consent of the victim . . . [wjhere the victim is under the age of twelve years.” La.R.S. 14:42(3) (1975).

Under the statutory scheme, where the anal sexual activity is committed with the consent of the other participant, or with the consent of a juvenile over the age of twelve and under seventeen years, the criminal conduct violates the crime-against-nature statutes rather than the rape statutes. We therefore find no merit to the state’s contention that, because of the exclusion of rape offenses from the crime against nature statute, penetration is no longer required for a crime against nature committed by anal-genital activity.

We should note that the circumstance that the present type of anal-genital conduct with a juvenile is not technically punishable as a crime against nature does not mean that it is exempt from criminal responsibility. See, e. g., the statute defining indecent behavior with juveniles, with punishment up to imprisonment at hard labor for five years imposed for its violation. La. R.S. 14:81 (1977). (The statute which punishes contributing to the delinquency of a juvenile through sexually immoral acts, with punishment by imprisonment up to two years at hard labor, likewise appears to be applicable. La.R.S. 14:92(7) (1976).)

Por reasons previously stated, we find that the state presented no evidence of an essential element of the crime charged by Count 1. We therefore conclude that the defendant’s conviction on this count must be reversed, and a judgment of acquittal ordered by us to that count.

B. Oral Copulation

The defendant likewise contends that Count 2 of the bill of information was insufficient to charge a crime against nature, in that it alleged only that the defendant “did place his mouth upon the penis” of the victim. The defendant contends that penetration is likewise an essential element of the crime against nature of the oral-genital nature.

In the first place, if this were a deficiency in the indictment, it is of a nature of insufficient detail in the description of the crime rather than total failure to charge any crime: The indictment’s language is susceptible to the construction that it encompassed “penetration” of the mouth by the sexual organ, and it clearly gave notice to the accused of the charge against him and adequately protects him against double jeopardy by re-trial for the conduct charged. An attack upon the indictment for technical deficiencies of this nature may not be made for the first time after the jury verdict. State v. James, 305 So.2d 514 (La.1974).

However, we prefer to rest our decision upon a broader rationale.

Oral-genital conduct punished by the crime-against-nature statute was first criminally prohibited by an 1896 amendment proscribing unnatural copulation committed “with the mouth.” See footnote 3. Despite dicta in State v. Long, 133 La. 580, 63 So. 180 (1913) that penetration is required, the weight of the jurisprudence is against such a restrictive interpretation of the statutory meaning. The jurisprudential interpretation of the oral-genital copulation proscribed by the crime against nature statute in its present version is that “any actual joining or connection of a genital organ of one person and the mouth of another” constitutes the crime. State v. Young, 249 La. 1053, 193 So.2d 243, 245 (1966). See also State v. Lindsey, 310 So.2d 89, 92 (La.1975).

Accordingly, we find no merit to the contention that the oral-genital conduct charged by Count 2 did not constitute the crime against nature statutorily proscribed.

III. Denial of Constitutional Right to a Jury Trial.

The defendant contends that he was denied his constitutional right to trial by jury because, when the trial judge asked him to choose between a judge trial or a jury trial, it was his attorney who responded that defendant would choose to waive the jury trial and be tried before the court. (Assignment 1).

The defendant forcefully contends that the right to trial by jury can only be waived by the defendant personally, and not by his attorney, even where, as here, the question was asked directly to the defendant and was answered by his attorney who was sitting beside him. He relies principally on State v. Muller, 351 So.2d 143 (La.1977).

Muller, however, upheld a trial judge’s finding that under the facts of that case, a defendant whose attorney waived his right to jury trial while defendant was not present in court, had not actually given his informed consent to the waiver. Nevertheless, in Muller, we specifically refused to adopt an absolute rule that no jury waiver can be effective unless the record reflects that the accused was personally informed by the judge of his right to jury trial.

We find no error in the determination of the trial judge here that the present defendant gave his informed consent to the waiver made in his presence by his attorney, especially in light of the facts that the judge had informed defendant not once, but twice, of his right to choose between a judge trial and a jury trial, and that the defendant was shown to have had prior experience as an accused in the trial of a criminal prosecution.

IV. Other Assignments and Contentions.

We do not reach the substantial issue posed by Assignment 5 that the trial court erred in imposing two consecutive sentences for two violations of the La.R.S. 14:89.1 committed within a single brief sexual encounter, see State v. Cramer, 358 So.2d 1277, 1281 (concurring opinion) (La.1978), since we reverse the conviction and sentence on Count 1.

By supplemental documents filed in this court, the accused argues pro se certain assignments and contentions. We have examined these contentions and find them to be without reversible merit. They do not involve legal issues not governed by clearly applicable authority. We have therefore discussed and disposed of them in Appendix 2 attached to this opinion, which remains a public record of this court (and which is available for what help it may be "should there be further post-conviction attacks), but which will not be published with this opinion.

Decree

For the reasons assigned: (1) We reverse the defendant’s conviction and sentence on Count 1, and we order that a judgment of acquittal be entered as to this count; (2) We affirm the conviction and sentence of fifteen years’ imprisonment at hard labor on Count 2.

CONVICTION AND SENTENCE AS TO COUNT 2 AFFIRMED; SET ASIDE AS TO COUNT 1.

SANDERS, C. J., concurs as to Count 2 and dissents as to Count 1 with written reasons.

SUMMERS, J., dissents as to Count 1 and concurs as to the other disposition.

APPENDIX 1

La.R.S. 14:89 (1975) provides:

“Crime against nature is the unnatural carnal copulation by a human being with another of the same sex or opposite sex or with an animal, except that anal sexual Intercourse between two human beings shall not be deemed as a crime against nature when done under any of the circumstances described in R.S. 14:41, 14:41.1, 14:42, or 14:43. Emission is not necessary; and, when committed by a human being with another, the use of the genital organ of one of the offenders of whatever sex is sufficient to constitute the crime.
“Whoever commits the crime against nature shall be fined not more than two thousand dollars, or imprisoned, with or without hard labor, for not more than five years, or both.” (Italics ours.)

La.R.S. 14:89.1(5) (1962) provides:

“Aggravated crime against nature is crime against nature committed under any one or more of the following circumstances:
“(5) Where the victim is under the age of seventeen years and the offender is at least three years older than the victim.
“Whoever commits the crime of aggravated crime against nature shall be imprisoned at hard labor for not more than fifteen years.”

SANDERS, Chief Justice

(concurring in part and dissenting in part).

I concur in the affirmance of the conviction on Count 2.

I dissent, however, from the reversal of the conviction on Count 1. In my opinion, the record contains some evidence of “unnatural carnal copulation.” That is all that the statute (LSA-R.S. 14:89.1)' requires. State v. Young, 249 La. 1053, 193 So.2d 543 (1966); State v. Bonanno, 245 La. 1117, 163 So.2d 72 (1964).

For the reasons assigned, I respectfully concur in part and dissent in part.

      . The concurring opinion in Lindsey notes its reservation that the prohibition did not apply to conduct of married couples within the marriage. See Perkins on Criminal Law 392 (2d ed., 1969).

      . Young held that the conduct proscribed oral-genital sexual activity between females as well as males.

      . Murry (as well as the earlier cases cited) noted that “crime against nature” referred only to the common-law crime of sodomy until the amendment of R.S., Section 788 (1870) by Act 69 of 1896 proscribed also crime against nature committed “with the mouth” (i. e., oral-genital sexual activity).

      . Counsel argues, correctly in our opinion, that this post-conviction attack on the sufficiency of the Count 1 indictment is not barred by the rationale of State v. James, 305 So.2d 514 (La. 1974). James held that mere deficiencies in an indictment could not be raised after the indictment, where the indictment gave adequate notice of the crime charged and was sufficient to protect against subsequent double jeopardy for the conduct against which the accused had to defend.
      Here, however, the (Count 1) attack is based upon the contention that the conduct charged does not fall within the statutory definition of the crime for which prosecuted; rather than a technically deficient charge as to criminal conduct actually proved, the charge alleges the only conduct proved, which (the accused argues) does not include the essential element omitted from the indictment. Since we subsequently find no evidence proves an essential of the crime charged by Count 1 (anal-genital copulation), we do not base our decision upon this procedural issue insofar as this count.

      . See also Footnote 4. With regard to Count 2, there is evidence of penetration in the victim’s testimony that the defendant sucked his sexual organ.

      . However, although we have not thus far required the defendant personally to waive his right to a jury trial, the necessity for a post-ver-diet evidentiary hearing here occasioned may well indicate such to be a preferable practice.


author: DENNIS, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Charles M. DIXON.
    No. 62061.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    Rehearing Denied Jan. 26, 1979.

      James E. Shields, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Charles M. Dixon, was convicted of possession of methqualone, La.R.S. 40:967, by a six person jury, adjudged a multiple offender, and sentenced to nine years and eleven months at hard labor. Because the trial judge denied the defendant his right under the state constitution to “full voir dire examination of prospective jurors,” La.Const.1974, Art. 1, § 17, the defendant’s conviction and sentence must be set aside and a new trial ordered.

During voir dire, after two of the six jurors had been selected, the following occurred:

“BY THE COURT:
Now, before you call jurors again, let me explain to both sides what my policy is on voir diring jury. These jurors have heard those questions again, again and again. You can now ask them if they’ve heard the questions and if their answers would be the same or substantially the same as the other jurors. We’re going to eliminate repetition of all these questions. There’s no excuse for taking this long to pick a jury. Proceed. Call four jurors. That goes for both sides.
U * * *
“BY [Defense Counsel]:
Each of you — each of you have heard, I’m sure on a repetitious basis, basically, everything I’ve said? Is there anybody who couldn’t hear my voice? Did all of you understand presumption of innocence?
“BY THE COURT:
Ask them what they — if their answers would be substantially the same.
“BY [Defense Counsel]:
Your Honor, are you limiting me to that one question?
“BY THE COURT:
I am, yes, sir. We’re going to get this jury picked properly.
“BY [Defense Counsel]:
Your Honor, I respectfully object.
“BY THE COURT:
Alright. Let the record reflect the objection. Go ahead and ask the question.
“BY [Defense Counsel]:
But, the Court’s telling me I can’t ask any more questions?
“BY THE COURT:
Can you think of any non-repetitious questions you would like to ask the jury? “BY [Defense Counsel]:
Just one, Your Honor. Would any of you hold anything against the defendant because of any hostilities between the Judge and I this morning? We don’t have any hostility. I’ve tried cases here before. But, some things did happen in the beginning that may have looked like there were hostilities. Would ya’ll hold that against the defendant? Because he wasn’t fifteen minutes late. I was.
U * * *
“BY THE COURT:
Ask that question next.
“BY [Defense Counsel]:
Yes, sir.
u * 9fc *
“BY [Defense Counsel]:
Would your answers be basically the same as — to the same questions that I’ve been asking before? Sir, would yours? Okay.
u * * *

During the balance of the voir dire the defense counsel was not allowed to ask the prospective jurors any questions previously addressed to other veniremen. With regard to subjects covered in previous questioning defense counsel was allowed merely to ask if the newly called veniremen had heard the questions and if their answers would be the same or substantially the same as the other jurors. Consequently, in selecting two-thirds of the jury, defense counsel was not permitted to question prospective jurors directly on such matters as (1) their possible prejudice against defendant because of his attorney’s tardiness; (2) the presumption of innocence; (3) the requirement of proof beyond a reasonable doubt; (4) their duty to accept evidence only from sworn witnesses; (5) the effect of a witness’ lie upon his entire testimony; (6) the relative weight to be given a policeman’s testimony; (7) knowledge and intent as essential elements of the crime charged.

The defendant is guaranteed the right to an impartial jury, La.Const.1974, Art. 1, § 16, the right to a full voir dire examination of prospective jurors, La. Const.1974, Art. 1, § 17, and the right to challenge jurors peremptorily, La.Const. Art. 1, § 17. Therefore, the defendant is entitled to make such inquiries of prospective jurors as will enable him to secure these constitutional rights, not only by showing grounds for challenges for cause, but also by eliciting facts which will empower him intelligently to exercise his right of peremptory challenge. State v. Boen, 362 So.2d 519 (La.1978); State v. Jackson, 358 So.2d 1263 (La.1978); State v. Hills, 241 La. 345, 129 So.2d 12 (1961). While a venireman may not be incompetent as a juror, he may hold views which, if known to the accused, would be deemed good reason for use of a peremptory challenge. If defendant is blindly to make his peremptory challenges, he may strike from the panel the very persons he would have wished to retain, and retain those he would have refused. State v. Hills, supra, 241 La. at 399,129 So.2d at 32.

A complete exegesis of the right to full voir dire examination of prospective jurors is not necessary to a decision in the instant case. Whatever else the right entails, it certainly includes addressing, hearing and observing the veniremen directly and as individuals. Otherwise, it would be difficult for counsel to judge whether a particular venireman in a group had given his own answer truthfully and candidly or if, in fact, he had answered at all. Because of the difficulty of the concepts and values which must be understood and applied by each juror in his deliberations, counsel for each side is entitled to an opportunity to assess the personality and comprehension of each prospect as a unique human being before accepting him as a juror or challenging him for cause or peremptorily. To relegate the defendant’s attorney to the role of asking the veniremen en masse for an evaluation of whether they would answer “substantially” as other jurors clearly deprives him of essential insights into the understanding and attitudes of each prospective juror and denies his client the right to full voir dire. State v. Jackson, supra. See, State v. Boen, supra; State v. Hills, supra.

For the reasons assigned, defendant’s conviction and sentence are reversed, and the case is remanded for a new trial consistent with this opinion.

REVERSED AND REMANDED.

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

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I do not find that the trial judge abused his discretion to limit the voir dire examination in this particular case. I consider that the facts in the instant case are distinguishable from the recent case of State v. Jackson, 358 So.2d 1263 (La.1978), in which we held that the trial judge committed reversible error in curtailing defendants’ voir dire examination. While I by no means approve of the method employed by the trial judge in conducting voir dire examination of prospective jurors in this case, I am unable to say, under the circumstances here presented, that he committed reversible error. Accordingly, I respectfully dissent.


author: MARCUS, Justice. TATE, Justice,

text:
    STATE of Louisiana v. Milton Bradley GOMEZ, Jr.
    No. 62106.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    Rehearing Denied Jan. 26, 1979.

      Calogero, J., dissented for reasons assigned by Tate, J., and both would grant a rehearing.
    Ronald S. Macaluso, Seale, Sledge, Maca-luso & Ross, Hammond, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Patrick G. Quinlan, Barbara Rutledge, Asst. Attys. Gen., Leonard E. Yokum, Dist. Atty., Joseph H. Simpson, Asst. Dist. Atty., L. J. Hymel, Jr., Asst. Atty. Gen., for plaintiff-appellee.
   MARCUS, Justice.

Milton Bradley Gomez, Jr. was indicted by the grand jury for manslaughter in violation of La.R.S. 14:31. After trial by jury, he was found guilty and sentenced to serve five years at hard labor. On appeal, defendant relies on twenty-seven assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in refusing to allow him the opportunity to impeach the testimony of a state witness.

Defendant was the manager of a tire mart where he and the victim were employed. On the morning of the alleged offense, defendant had informed the employees that, because of previous cash register shortages, only defendant was to operate the register that day. Later that afternoon, defendant overheard a conversation between the victim and another employee in which the victim stated that he was tired of being accused of something he did not do. Defendant asked the victim if he wanted his pay check; he replied that it made no difference to him. Whereupon, defendant began to make out the victim’s check. At this point, defendant informed the victim of a debt he owed the store. The victim then stated that defendant could keep the check and he would consider the debt settled. Thereupon, the victim walked out of the side door toward his car; however, he immediately returned (kicking the door open), pushed defendant and demanded that defendant give him his pay check in full. Defendant walked behind the counter and stated that he would telephone the owner of the mart. The victim responded that defendant would not call anyone and grabbed the base of the telephone, jerking the receiver out of defendant’s hands. Defendant ducked underneath the counter, came up with a pistol in his hands and fatally shot the victim.

Adolph Zanders, an employee of the tire mart who witnessed the shooting, was called as a state witness. On direct examination, he stated that he did not recall whether or not defendant cocked the hammer when he pulled the pistol from under the counter and shot the victim. On cross-examination, he stated that the hammer of the pistol was not cocked when defendant brought it up from under the counter. Defense counsel then questioned the witness about a prior statement given to a defense investigator in which Zanders allegedly stated that the hammer of the pistol was cocked before it was fired. At first, the witness admitted that he previously stated that defendant cocked the hammer when he brought the pistol up from under the counter but, upon further cross-examination, he denied his prior statement that the hammer was cocked. The prior statement was repeated several times during the questioning of the witness by defendant. On each occasion, the witness denied that he had stated that the hammer of the pistol was cocked before it was fired.

Defendant then attempted to call Bruce Childress, the investigator to whom the pri- or statement was allegedly made, to testify for the limited purpose of playing that portion of a tape recording of Zanders’ prior statement in which Zanders purportedly stated that the hammer of the pistol was cocked before the shot was fired. The state objected on the ground that Zanders had admitted making the prior contradictory statement. The trial judge sustained the objection.

Each side has the right to impeach the testimony and credibility of every witness sworn on behalf of the other side. La.R.S. 15:486. La.R.S. 15:493 provides:

Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.

La.R.S. 15:493 thus permits the credibility of a witness to be impeached by proof of any statement made contradictory to his testimony at trial. If, however, a witness distinctly admits having made a prior contradictory statement, evidence that the statement was made is inadmissible. La. R.S. 15:493; State v. Mosely, 360 So.2d 844 (La.1978); State v. Bennett, 357 So.2d 1136 (La.1978).

A review of Zanders’ entire testimony does not convince us that he distinctly admitted making the prior contradictory statement. Hence, evidence that he did make it would have been admissible to impeach the credibility of the witness. The trial judge erred in sustaining the state’s objection to the offer of proof.

Nevertheless, the error was not reversible. Had defendant been permitted to impeach Zanders, at most he would have been able to place Zanders’ prior contradictory statement before the jury. Defendant, in cross-examination of Zanders, repeatedly made reference to and quoted from Zan-ders’ prior contradictory statement. Thus, the jury was fully informed of the nature and content of this prior contradictory statement. Since the ultimate purpose of impeaching Zanders was to place before the jury the content of this prior contradictory statement,- this was in fact accomplished by defendant during cross-examination of Zanders. See State v. Wilson, 360 So.2d 166 (La.1978); State v. Lewis, 354 So.2d 566 (La.1978); State v. Clark, 325 So.2d 802 (La.1976). Moreover, defendant testified on cross-examination that the hammer of the pistol was not cocked immediately before the shot was fired. Defendant’s testimony, therefore, was in accord with Zanders’ trial testimony. Hence, under the facts and circumstances here presented, any prejudice resulting from the ruling of the trial judge was removed by defendant’s cross-examination of Zanders and the subsequent testimony of defendant.

Assignment of Error No. 1 is without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

Defendant contends the trial judge erred in sustaining the state’s objections to testimony of defendant and another defense witness concerning the physical and mental condition of the victim. He argues that the testimony was admissible for two distinct purposes: (1) to show defendant’s reasonable apprehension of danger which would justify his conduct; and (2) to help determine who was the aggressor in the conflict.

On direct examination, defendant was asked if he was aware of any mental problems involving the victim. The state objected. Defense counsel argued that defendant’s answers to the proposed questions would bear on both the victim’s and defendant’s state of mind at the time of the shooting. The trial judge sustained the state’s objection (Assignment of Error No. 2).

Sharon Rae Vartan, the victim’s girlfriend, was called as a defense witness. Defense counsel indicated that Ms. Vartan would testify that she knew both the victim and the defendant and had worked part-time at the tire mart. She had also lived with the victim from October 1975 until the date of the fatal shooting (August 18,1976). In May 1976, she and the victim were involved in a serious automobile accident after which the victim’s actions and mood “changed for the worse.” Defense counsel further stated that Ms. Vartan would have testified as to the friendly relationship between defendant and the victim prior to the accident. On the day of the shooting, the victim purportedly told Ms. Vartan that “his nerves were shot.” After defense counsel’s statement of Ms. Vartan’s expected testimony, the state objected, contending that any testimony offered by Ms. Vartan relative to the mental situation of the victim was inadmissible. The trial judge sustained the state’s objection (Assignment of Error No. 3). Defendant then proceeded to examine Ms. Vartan without inquiring into the mental condition of the victim.

Evidence of the victim’s dangerous character or of his threats against the accused may be admissible in support of the accused’s plea of self-defense, provided that the accused first produces evidence that the victim had made a hostile demonstration or overt act against the accused at the time of the incident. La.R.S. 15:482; State v: Lee, 331 So.2d 455 (La.1975). In Lee, this court held that once the overt act is established, evidence of the victim’s dangerous character or of his threats against the accused is admissible in support of a plea of self-defense for two distinct purposes: (1) to show defendant’s reasonable apprehension of danger which would justify his conduct; and (2) to help determine who was the aggressor in the conflict.

In order for evidence to be admissible to show defendant’s reasonable apprehension of danger, it must be shown that defendant knew of the victim’s prior acts of violence or reputation for violence at the time of the incident. State v. Bernard, 358 So.2d 1268 (La.1978); State v. Boss, 353 So.2d 241 (La.1978); State v. Lee, supra. On the other hand, if the evidence is to be introduced to help determine who was the aggressor in the conflict, evidence of general reputation, not evidence of specific acts or personal opinion, is admissible. State v. Bernard, supra; State v. Boss, supra. As explained in Boss, evidence introduced to prove a victim’s character in order to corroborate a contention that he was the aggressor in the conflict must conform with the rule of La.R.S. 15:479 which provides: “Character, whether good or bad, depends upon the general reputation that a man has among his neighbors, not upon what particular persons think of him.” Proof of character authorized by La.R.S. 15:479 consists of “the opinion (formed on hearsay it is true) by a member of the community exposed over an extended period of time to hearing the discussion (or lack of it) by other members of the community shared by himself and the person whose reputation is at issue.” State v. Frentz, 354 So.2d 1007, 1011 (La.1978). In order to elicit positive statements concerning a victim’s character, a foundation must first be laid demonstrating that the character witness is aware of the victim’s reputation for character among his neighbors. State v. George, 346 So.2d 694 (La.1977).

In the instant case, defendant, in support of his plea of self-defense, presented appreciable evidence tending to establish a hostile demonstration or an overt act on the part of the victim which act or demonstration would create in the mind of a reasonable person a belief that he was in imminent danger of losing his life or of suffering great bodily harm. State v. Simmons, 349 So.2d 273 (La.1977).

None of the evidence sought to be elicited from defendant or Ms. Vartan involved evidence of prior acts of violence committed by the victim. Rather, both defendant’s and Ms. Vartan’s offered testimony involved the history of the victim’s mental problems or the change in the victim’s “mood” after the automobile accident. Defense counsel made no effort to lay a foundation by demonstrating that either defendant or Ms. Var-tan was aware of the victim’s reputation among his neighbors for a history of mental problems or a change in “mood” after the automobile accident. It is apparent that the testimony sought to be elicited from defendant and Ms. Vartan was no more than their personal opinions as to the victim’s purported mental problems.

Hence, the trial judge properly sustained the state’s objections to the testimony of defendant and Ms. Vartan concerning the mental condition of the victim.

Assignments of Error Nos. 2 and 3 are without merit.

ASSIGNMENT OF ERROR NO. 27

Defendant contends the trial judge erred in sentencing him to five years at hard labor. He argues that the sentence imposed inflicts cruel, excessive, or unusual punishment in violation of La.Const. art. 1, § 20. Defendant also argues that the trial judge erred in failing to state adequately his reasons for imposition of the sentence as required by La.Code Crim.P. art. 894.1.

La.Const. art. 1, § 20 provides in pertinent part that “[n]o law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment” (emphasis added). Some of the members of this court, including the author of this opinion, are of the view that this constitutional provision only gives to this court the judicial power to declare as unconstitutional laws which provide for excessive sentences rather than extending the judicial power to appellate review of sentences imposed in individual cases. Other members of the court interpret the provision as conferring upon this court constitutional authority to review sentences imposed in individual cases. State v. Progue, 350 So.2d 1181 (La. 1977).

We need not, however, resolve this issue in the present case for, under either interpretation of the constitutional provision, the sentence imposed here is not excessive. The maximum sentence for the crime of manslaughter is twenty-one years at hard labor. La.R.S. 14:31. Defendant’s actions resulted in the loss of a human life. In view of the seriousness of this offense, we do not believe that imposition of the sentence of five years at hard labor was cruel, excessive, or unusual punishment.

Next, defendant contends the trial judge erred in failing to adequately state his reasons for imposition of the sentence as required by La.Code Crim.P. art. 894.1. That article states that where a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if one or more of the listed conditions are met. This statute also enumerates various grounds which, while not controlling the decision of the court, shall be accorded weight in its determination of suspension of sentence or probation. It is further provided that the “ ‘court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.’ ” State v. Gordon, 364 So.2d 1036, 1037 (La.1978); State v. Jackson, 360 So.2d 842 (La.1978); State v. Scarborough, 359 So.2d 982 (La.1978).

At the time the trial judge imposed the sentence of imprisonment on defendant, he stated that, while he was aware that defendant had no history of prior criminal conduct and had been greatly provoked, “it was not necessary in defense of his own life to kill Gregory Ridgedell [victim].” Therefore, he considered that a lesser sentence would deprecate the seriousness of defendant’s crime. We conclude that the trial judge adequately complied with La.Code Crim.P. art. 894.1.

In sum, Assignment of Error No. 27 is without merit.

DECREE

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

TATE, J., dissents and assigns reasons.

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

TATE, Justice,

dissenting.

I respectfully dissent.

As the majority finds, the defendant, a store manager, was threatened by an overt act of a disgruntled employee he had discharged.

Over state objection, the defendant was not permitted to reply to his counsel’s question if he was aware of any mental problems of the victim — the obvious purpose of the question being to show the defendant’s reasonable apprehension of bodily harm because he knew of the mentally disturbed condition of the victim. Again, the victim’s girl friend, called as a defense witness, was prevented by state objection from testifying as to the particularly disturbed mental condition of the victim on the day of the offense.

I do not read the jurisprudence, as does the majority, to hold that only the victim’s prior acts of violence or reputation for violence are relevant to the accused’s reasonable apprehension of bodily harm, as alone justifying a response to a threatening approach of the victim instanced by a hostile act. The primary reason for allowing non-reputation evidence is, not to show the victim’s character, but rather the state of mind of the accused (his reasonable belief of his own danger). State v. Lee, 331 So.2d 455 (La.1975); Noted, 37 La.L.Rev. 1166 (1977).

As enunciated in State v. McMillian, 223 La. 96, 64 So.2d 856, 857 (1953), the non-reputation evidence (there, prior acts and disagreements between the parties) “was admissible and relevant to show the reasonableness of the defendant’s fear of an impending attack or of suffering great bodily harm at the time of the homicide. It would have tended to negative intent and was thus relevant and admissible * * * For the same reasons, the decedent’s knowledge that the victim had acted irrationally in the past and was mentally disturbed should have been admissible to show the reasonableness of his picking up the pistol, whether or not it accidentally (as he claimed) discharged.

For these reasons, I believe that the trial court erred in sustaining the state objections so as to withhold this relevant evidence from the trial jury.

      . Defendant has neither briefed nor argued Assignments of Error Nos. 4 through 26, inclusive. Hence, we consider them to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La. 1975).

      . Defendant testified that the victim pushed him several times and hit him in the right cheek immediately prior to the shooting. In addition, the evidence establishes that the victim grabbed the base of the telephone while defendant was attempting to telephone the owner of the tire mart. Defendant stated that he was afraid that the victim was preparing to hit him in the head with the base of the telephone and that he brought the pistol out from underneath the counter to “scare” the victim.


author: DENNIS, Justice. DIXON, Justice

text:
    STATE of Louisiana v. Willie Joseph MARSE, Jr.
    No. 62193.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    Rehearing Denied Jan. 26, 1979.

      Mary Coffman, Student Practitioner, William J. O’Hara, III, Supervising Atty., Loyola Law School Clinic, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., P. Michael Cullen, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   DENNIS, Justice.

If one reasonable view of the evidence in a first degree murder prosecution would support a finding of negligent homicide by the jury, does the statutory exclusion of “guilty of negligent homicide” from the list of responsive verdicts violate the defendant’s constitutional rights to a fair trial by jury? Does the trial judge’s refusal to instruct the jury on negligent homicide in such a case violate defendant’s statutory right to a wholly correct and pertinent special charge? We conclude that negligent homicide constitutionally may be excluded by statute as a responsive verdict to first degree murder. Under the circumstances stated above, the trial judge should give the requested special charge on negligent homicide, but under the facts of the instant case the error was not reversible.

Defendant, Willie Marse, was tried upon an indictment of first degree murder of a police officer and convicted by a twelve person jury of the lesser included offense of manslaughter, La.R.S. 14:31. After being sentenced to twenty-one years imprisonment at hard labor, Marse appealed arguing three assignments of error relating to the trial judge’s omissions in failing to either instruct the jury on negligent homicide or to include it in the list of responsive verdicts given the jury. Eight other assignments were not argued and are pretermit-ted.

About noon on July 12,1977, after having a number of beers, defendant went to the Westwego home of his estranged girlfriend Ola Mayeux. Mayeux was just returning from the grocery store when defendant arrived. She dropped her groceries in fright, ran into the house and locked the door. Defendant picked up her groceries and took them to his house in Bridge City. Mayeux reported the incident to the Westwego Police.

Because Marse lived outside Westwego police jurisdiction, the officers requested that Jefferson Parish Sheriff’s deputies meet them at the defendant’s house. At first, when the Westwego officers questioned defendant, he simply refused to discuss the matter with them; but when a Jefferson Parish deputy arrived, defendant retreated into the building, warning that he was going to get a gun and shoot them. The deputy summoned his supervisor, Sergeant Merlin Bruñe. When he arrived Bruñe and the other officers entreated defendant through the closed door to cooperate with them. Marse again threatened to shoot if they did not leave the premises. Bruñe armed himself with a shotgun and resumed his station outside defendant’s front door, where the solicitation of defendant continued for several minutes.

One account of the events immediately surrounding the fatal shooting was provided by police officers and partially corroborated by a lay witness. The officers testified as follows: As four policemen clustered about defendant’s door, he cracked it open an inch or two, and one of the officers, seeing that defendant was armed with a rifle, lunged at the door in an effort to disarm him. However, the patrolman’s fist crashed through a panel of the door as defendant slammed it shut. When the officer withdrew his hand from the hole, it was followed by the barrel of Marse’s rifle. Bruñe commanded the defendant to drop the weapon. The barrel fanned the air momentarily, several shots rang out, and Merlin Bruñe was fatally wounded by one of the bullets. The officers returned defendant’s fire without harming him. Marse finally surrendered without further bloodshed on either side.

In giving his version, defendant testified as follows: After the police refused his request that they leave, he warned them that he would shoot if they broke into his home. When the officer’s fist came through the door, he was several feet away. It sounded like a shotgun blast. In his fright, he moved to the door and fired through the hole. He denied having taken aim: “I wasn’t trying to hit nobody. I was just trying to scare them away from there.” Defendant claimed that he was not even aware that Bruñe had been shot until he surrendered himself an hour after the incident. Marse’s attorney testified that when defendant consulted him after the shooting and reported an exchange of gunfire with police officers he claimed that no one was injured.

Two of defendant’s neighbors testified for the defense that from their different vantage points some distance away, they did not see defendant open the door before the officer broke into it and the shots erupted. Neither witness could tell who had fired the first shot.

On rebuttal, the State offered evidence that a month before the crime a disturbance with Ola Mayeux resulted in defendant’s arrest. On that occasion he resisted arrest, voiced his hatred for police officers and repeatedly expressed a determination to kill them. On the day before the crime, an acquaintance testified, defendant declared that “he was gonna have to kill some of them [policemen] to make them leave him alone.”

Procedural Context

The responsive verdicts to first degree murder are:

“Guilty.
“Guilty of second degree murder.
“Guilty of manslaughter.
“Not guilty.” La.C.Cr.P. art. 814.

Contending that “guilty of negligent homicide” was logically and constitutionally, if not statutorily, responsive to the charge, defense counsel timely requested several special instructions to the jury on the law of negligent homicide. First, he asked that the court, when charging the jury as to the responsive verdicts in the case, specifically advise that “negligent homicide is not a responsive verdict.” That charge was accepted by the court and given. Next, he requested the following instruction on criminal negligence, taken directly, from La.R.S. 14:12:

“Criminal negligence under Louisiana law exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.”

Finally, he asked that the jury be charged as follows:

“While negligent homicide is classified under Louisiana law as a grade of criminal homicide, it is not a responsive verdict to this indictment under Article 814 of the Louisiana Code of Criminal Procedure. Therefore, I charge you that if you the jury conclude that the defendant’s conduct amounts to no more than criminal negligence as previously defined, you must acquit the defendant.”

The trial judge’s refusal of the latter two charges is the basis of defendant’s second argument on appeal. Defense counsel asserts in brief that the judge explained in chambers that his ruling was grounded upon Article 814’s exclusion of negligent homicide as a responsive verdict. Thereafter, defense counsel moved to quash the indictment on the ground that Article 814 did not include guilty of negligent homicide among the responsive verdicts. The motion was denied and defendant contends in his first appellate argument that the ruling was erroneous.

Failure to Include Negligent Homicide as a Responsive Verdict

The wisdom of the Louisiana responsive verdict system — both as to those verdicts included and those excluded — has been questioned. See, Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). However, this Court has repeatedly upheld Article 814 against constitutional attacks. See, State v. Qualls, 353 So.2d 978 (La.1977); State v. Cook, 345 So.2d 29 (La. 1977); State v. Palmer, 344 So.2d 964 (La. 1977). In cases not involving the death penalty, the element of capriciousness injected into the proceedings by the responsive verdict system does not offend the constitutional safeguards. See, State v. Palmer, supra.

In this case, defendant was charged by an offense punishable under a valid statute. See, La.C.Cr.P. art. 532; compare, State v. Legendre, 362 So.2d 570 (La.1978). By his motion to quash he did not challenge the validity of the charge, as constituted, but rather complained that the unavailability of a specific verdict in response to that charge prejudiced his defense. However, such a contention invites the trial court to pass upon the merits of the state’s case, a matter not properly raised by motion to quash. Cf. State v. Atkins, 360 So.2d 1341 (La.1978). Defendant’s ultimate protection is that if the state fails to prove the elements of the offense charged or of those offenses for which responsive verdicts are prescribed by La.C.Cr.P. art. 814, he is entitled to an acquittal.

The motion to quash was properly denied.

Failure to Instruct Jury on Negligent Homicide

By two of his assignments of error defendant contends that the trial judge erred in refusing his special requested instructions relative to the law of negligent homicide and to the jury’s duty to acquit if it found that defendant had committed that crime. He asserts that the trial judge was required to give the instructions because they were wholly correct and pertinent.

La.C.Cr.P. art. 807, in relevant part, provides:

“A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.”

See also, State v. Atkins, supra.

The State argues that the law of negligent homicide was not pertinent because that offense was not included among the applicable responsive verdicts.

Although we have previously considered the issue, thus far it has not been clearly decided. In affirming a conviction of manslaughter, after a trial upon a murder indictment, in State v. Hopper, 251 La. 77, 203 So.2d 222 (1967) this Court stated that the trial judge was not required to instruct on the law of negligent homicide and criminal negligence because negligent homicide was not a responsive verdict under the indictment. However, the opinion in the case, which involved a homicide resulting from a barroom fight, does not indicate that there was any evidence which would have supported a finding of negligent homicide. On the other hand, in State v. Mart, 352 So.2d 678 (La.1977), after reversing a second degree murder conviction on other grounds, we stated that on retrial an instruction on negligent homicide should be given. Although there was ample evidence of negligent homicide, the opinion does not clearly indicate that a failure to so instruct necessarily would amount to reversible error.

It is the duty of the trial judge to give a requested charge, which does not require qualification, limitation, or explanation and is not included in the general charge or another special charge, if it is wholly correct and pertinent to the case. La.C.Cr.P. art. 807. State v. Youngblood, 235 La. 1087, 106 So.2d 689 (1958); State v. Turner, 228 La. 202, 81 So.2d 861 (1955). This is a corollary of the trial judge's basic obligation to charge the jury as to the law applicable to the case, under which he is required to cover every phase of the case supported by the evidence whether or not accepted by him as true. La.C.Cr.P. art. 802; State v. Miller, 338 So.2d 678 (La.1976); State v. Robichaux, 165 La. 497, 115 So. 728 (1928). It follows from these rules that the trial judge is required to charge the jury, in response to an otherwise proper request, as to the law applicable to any theory of defense which a jury could reasonably infer from the evidence.

For example, this Court has reversed a conviction of embezzlement because of the “clear prejudice and injury” caused by the trial judge’s refusal to give a correct special charge, not otherwise covered, when requested by defendant on the law pertaining to an accessory after the fact despite there being evidence to show that defendant was merely an accessory after the fact. State v. Robichaux, supra. In State v. Miller, supra, this Court reversed an attempted manslaughter conviction because the trial court failed to instruct on the law of justification and self defense, even though raised only by defendant’s “extremely doubtful” version of the shooting. Similarly, evidence of extensive pre-crime drinking by an accused, from which the jury might have inferred his intoxication warranted the requested instructions that intoxication might preclude the specific intent required for the charged murder. State v. Mart, 352 So.2d 678 (La. 1977). See also, State v. Lentz, 306 So.2d 683 (La.1975) (charge relative to intoxication as affecting intent pertinent to simple burglary prosecution); State v. Montalbano, 257 La. 884, 244 So.2d 820 (1971) (instruction on self-defense pertinent to aggravated battery prosecution).

Applying these principles to the instant case, we conclude that the requested special charges were wholly correct and pertinent. There was copious evidence, consisting of the testimony by Marse, the police officers and bystanders, from which the jury could have inferred that Marse was guilty of negligent homicide but not manslaughter or murder. The requested charges did not require qualification, limitation or explanation and were not included in other charges to be given. The trial judge fell into error, therefore, in not complying with his duty imposed by the statute to give the wholly correct and pertinent instructions requested on negligent homicide.

We further conclude, however, that the errors do not warrant reversal of defendant’s conviction and sentence. Although defense counsel’s able arguments have persuasive powers, we cannot say that there has been a miscarriage of justice, prejudice to the substantial rights of the accused or a substantial violation of a constitutional or statutory right. La.C.Cr.P. art. 921. This is not a case in which the jury was improperly exposed to inadmissible evidence, improper courtroom conduct or erroneous jury instructions. Defendant’s only claim to prejudice was the trial judge’s failure to define the crime of negligent homicide and to instruct the jury that it must acquit in the event defendant’s conduct amounted to no more than negligent homicide. Thus, the omission could have been prejudicial only if the jury had insufficient information to understand that if Marse was guilty only of negligent homicide it should find him not guilty of the charged offense. Cf. Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977).

A review of the record convinces us that the jury was adequately informed of its duty in the event it found defendant guilty only of the uncharged crime. The trial judge instructed the jury that negligent homicide was not a responsive verdict and that it must find the defendant not guilty if it had a reasonable doubt as to all grades of the offense charged. During his closing argument defense counsel, without objection or contradiction, told the jury that it must acquit the defendant if he were found guilty of no more than negligent homicide. The voir dire has not been transcribed for our review. However, remarks by defense counsel in closing argument indicate that he also discussed the jury’s duty upon a finding of negligent homicide during voir dire of prospective jurors.

Although it would have been preferable and more impressive if the trial judge had given the requested charges to the jury, the other instructions given by the trial judge coupled with defense counsel’s closing argument and voir dire discussion sufficiently informed the jury of its duty to acquit defendant if the evidence warranted only a finding of negligent homicide.

Accordingly, defendant’s assignments of error are without reversible merit.

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

AFFIRMED.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., concur.

DIXON, J., dissents with reasons.

DIXON, Justice

(dissenting).

I respectfully dissent.

The description of the armed invasion of defendant’s home by police to gain his “cooperation” and to question him (in spite of his constitutional right to keep silent) makes it difficult to understand the conclusion that the failure to give a relevant, correct and important charge was harmless error.

       “I think Willie is guilty of negligence. I think he is guilty of criminal negligence. I think he acted in a reckless manner in disregard for peoples lives. If I had to tell you that’s what Willie did wrong, yes, that’s what Willie did wrong. But, you see, you can’t find him guilty of that. But if you do conclude that the most you can say about Willie was that he acted grossly negligent in disregard for others, you see, if you find that, but if you find no more than that, if that’s all you find that Willie did, then I suggest to you that that’s the most he did. Then, you see, you have to find him not guilty, because negligent homicide is not a responsive verdict.”


author: SUMMERS, Justice. DENNIS, Justice, MARCUS, Justice

text:
    Newt V. MILLS v. Jerry A. ADAMS.
    No. 62409.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    Rehearing Denied Jan. 26, 1979.
    J. Michael McDonald, Baker, Culpepper & Brunson, Farmerville, for defendant-respondent.
    Haynes L. Harkey, Jr., Thomas M. Hayes, III, Hayes, Harkey, Smith, Cascio, Monroe, Emmons, Henry & Reeves, Joseph A. Reeves, Jr., Jonesboro, for plaintiff-appellant.
   SUMMERS, Justice.

The issue here is whether the lessee in a lease and option to purchase agreement affecting real estate has complied with the terms and conditions of the option to purchase.

Newt V. Mills, as lessor, and Jerry Adams, as lessee, entered into a written agreement denominated as a “rent contract” on October 20, 1971. By the terms of the agreement Mills let and rented 160 acres of land in Jackson Parish for a term of five years beginning November 1, 1971 and ending at midnight October 31, 1976 for a rental of $200 per month. The agreement further stipulated in detail additional rights and obligations of the parties during the terms of the lease.

Thereafter, in a clause of this agreement, Mills as owner agreed to sell the lands involved to Adams on November 1,1976 for $450 per acre, a total of $72,000 cash. In consideration thereof Adams agreed to purchase under those terms and conditions or lease the property for an additional five years under the conditions set forth in the lease provisions of the agreement, the lease extension to begin November 1, 1971 and end October 31, 1976.

As it will appear later, the agreement significantly provided: “All notices hereunder shall be in writing and may be given in person or may be given by United States Registered Mail, addressed as follows, which addresses may be changed by-like notice to-wit: Newt V. Mills, 715 Loop Road, Monroe, Louisiana 71201.”

Alleging that Adams did not tender the purchase price of $72,000 on November 1, 1976 or pay the rentals due after November 1, 1976 or for six months thereafter, Mills instituted this rule to show cause on May 4, 1977 to have the option to purchase declared void and without effect for failure of Adams to timely exercise the option set forth in the agreement and to have the lease declared “ended” and the premises returned to Mills.

After filing an exception to the summary proceeding, Adams averred in his answer that he had attempted to exercise the option to buy by notice to Mills personally and by “notice of tender of the $72,000.00 by certified mail” through the attorney representing Adams. He alleged further that he continues to tender the agreed amount and remained on the premises pursuant to the exercise of the option, having instituted a separate suit for specific performance.

The trial judge found that “defendant has substantially complied with the agreement and attempted to exercise the option.” The rule was therefore recalled and the petition dismissed at plaintiff’s cost. On appeal to the Second Circuit, the judgment was affirmed, the court finding that the trial court “was faced with credibility issues which were resolved against Mills.” Certio-rari was granted on plaintiff’s application, 359 So.2d 1309.

A study of this record confirms the fact that there is categorical disagreement in the testimony of Mills and Adams on crucial issues relating to the exercise of the option to purchase. This disagreement can only be resolved by a credibility determination, a matter which the trial judge is particularly qualified to resolve. There is, however, other testimony and there are other facts which resolve the factual issue in favor of Adams and the judgments under review are affirmed.

In October 1971 when Adams was considering entering into the agreement of lease and option to purchase with Mills, he consulted George Moore, who was then an official of the Ouachita National Bank in Monroe. Moore testified that at that time Adams obtained Moore’s opinion concerning the contract he was about to sign with Mills and whether the bank would lend him the money, until he could get long term financing, if he decided to buy the property in the future. After consultation with another official they gave Adams a verbal commitment to lend him $72,000 to buy the property should he decide to do so in keeping with the contract. With this assurance Adams signed the agreement with Mills, took possession of the property and actively engaged in the cattle business.

During the latter part of 1976, after Moore was transferred to the First National Bank of West Monroe, Adams again consulted him, inquiring whether Moore would confirm the commitment in his capacity as Executive Vice-President of the West Monroe bank. Moore reassured Adams at that time and reaffirmed the commitment to lend Adams $72,000 to buy the Mills property, this time on behalf of the West Monroe bank.

Having been reassured that the money would be available to purchase the property, in August 1976 Adams contacted Mills and informed him that he had a commitment for $72,000 from the First National Bank of West Monroe to purchase the property. On that occasion he stated to Mills that at the appropriate time when Mills produced the deed he would deliver a cashier’s check in full payment. Subsequently, each time he met Mills he restated his willingness and ability to purchase the property-

In the early part of October 1976 when the last rental payment of the five year term became due, Adams prepared a statement addressed to Mills which he delivered to Mills along with the rental check due for that month. The statement, dated September 15, 1976 read:

“Mr. Newt Mills—
This is to confirm the intent of the undersigned to exercise the option specified in the lease contract entered into and signed and recorded between Jerry A. Adams and Newt V. Mills to purchase said property consisting of 160 acres, more or less, known as the McClendon Place and located in Jackson Parish for the specified price of $450.00 per acre, a total of $72,000.00 cash. Payment is to be a cashier’s check drawn on First National Bank of Monroe & West Monroe. Payment to be made on October 15, 1976 upon transfer of deed to described property and not later than 9:00 a. m. on October 29, 1976.
Jerry A. Adams”

Not having received a response from Mills, Adams went to Mills’ residence and again repeated that he had a commitment for the money to purchase the property and that he wanted to exercise the option. According to Adams, Mills declared at that time that he couldn’t sell the property because the tax he would be compelled to pay on the transaction would exceed $30,000. Adams then said he intended to exercise the option if there was a legal means to do so. In another effort to persuade Mills to comply with the agreement, Adams returned to Mills’ residence on October 17, 1976, saw Mills inside, knocked on the door but Mills did not answer. Adams then telephoned from a nearby phone and received no answer.

At this point, Adams consulted Benjamin M. Peters, Esquire, attorney of Monroe, requesting that Peters notify Mills by certified mail of his intention to exercise the option prior to the November 1, 1976 deadline, and that Peters arrange for the necessary title opinion required by the bank in connection with the contemplated loan. Peters testified that he checked with George Moore at the bank, ascertained that the bank was committed to lend Adams $72,000 and that the bank would accept a title opinion by Peters in connection with the loan.

Peters then mailed a letter to Mills by certified mail, requesting a return receipt. The letter, on counsel’s letterhead, dated October 27, J.976, reads as follows:

“October 27, 1976
CERTIFIED MAIL
No.: 694380
■Mr. Newt V. Mills
715 Loop Road
Monroe, Louisiana 71201
Re: (1) Jerry A. Adams
(2) Conveyance of McClendon Place consisting of 160 acres, more or less, in Jackson Parish in accordance with lease and option to purchase
(3) Mr. Adams’ letter of September 15, 1976, exercising option in Reference (2)
Dear Mr. Mills:
Mr. Jerry A. Adams has retained me to review the title on the above referenced property and to review the deed which is generally prepared by the vendor, yourself, in real estate closings of this type. Accordingly, I would appreciate your providing me with a copy of the proposed Cash Deed at your earliest convenience. Mr. Adams has obtained a financial commitment and is still willing to pay the consideration of $72,000.00 cash, by not later than October 29,1976, in accordance with Reference (2) and (3) above.
Mr. Adams has become concerned with your refusal to communicate with him; and accordingly, this letter also constitutes further notice of his intent to exercise the option contained in Reference (2) above. Your failure to reply to this letter in seven days will indicate your refusal, and the appropriate legal action will be commenced accordingly. Please provide this writer with a copy of the proposed deed or communicate your willingness by telephone immediately.
With kindest personal regards
Yours very truly
(Signed)
Benjamin M. Peters”

When Peters received no answer he instructed his secretary to inquire of the post office the cause for the delay. He was then advised by the post office that delivery had been attempted on October 28, J976 but the certified letter was unclaimed. The post office was instructed to return his letter to Mills.

Thinking that perhaps Mills was out of town when delivery of the certified letter was attempted on October 28, 1976, on November 22, 1976 Peters again addressed a letter to Mills, this time by ordinary mail, forwarding a copy of the letter of October 27, 1976 and the return receipt of the post office showing the letter had been unclaimed. Peters requested that Mills advise him of his “disposition in this matter immediately.” The next day Mills telephoned Peters. Peters told him that Adams was ready to close the sale and would tender the $72,000. Mills replied that he had received no such notice and for that reason the agreement to sell expired on November 1, 1976. Mills stated further that Adams had caused some damage to the property and was indebted to him because of this.

In a further attempt to persuade Mills to agree to sell the property, Adams returned to Mills’ house to find out what damage had been caused and what he owed Mills, stating that if he owed something he intended to pay it; whereupon, Adams testified, Mills became hostile, asserting that he couldn’t sell the property. But, Mills offered to return the $12,000 Adams had paid in rentals during the five-year term of the lease, saying he realized Adams had suffered tough luck in the cattle business. Adams rejected this offer and restated his determination to buy the property in accordance with their written agreement.

On April 15, 1977 Mills served a written notice on Adams to surrender possession of the property prior to April 30, 1977. When Adams refused, this suit followed.

While Mills denies that he ever refused to sell the property to Adams prior to November 1, 1976, his position seems to be that Adams made no real tender of the purchase price and this failure had the effect of rendering the agreement to sell null and void after November 1, 1976.

This Court is of the opinion that the record of this case, and the decision of the trial judge and the Court of Appeal sustain Adams on this factual issue.

Peters, an experienced attorney practicing for eleven years, principally in the field of real estate, oil and gas and corporate matters, had closed approximately 800 such loans. In addition, he was a director and stockholder of Ouachita National Bank in Monroe, serving on the Discount and Trust Committee. He testified it was the custom and practice in transactions such as this one for the seller to prepare the deed and deliver it to the purchaser for approval. If approved, the purchaser is then obligated to pay the purchase price at the signing.

It is apparent from this record that Adams, who did not consult an attorney until later, understood that Mills was required to submit the deed to him before he was expected under the prevailing practice and custom to pay the purchase price. It would seem also that such a practice is compatible with Mills’ obligation to sell. Everhardt v. Sighinolfi, 232 La. 996, 95 So.2d 632 (1957); Fortenberry v. Decay, 279 So.2d 725 (La.App.1973). Adams’ efforts, therefore, were directed to having Mills take that first step in the transaction- — presentation of the deed. For this reason he repeatedly advised Mills of his intention to exercise the option, stating that he had a commitment for the money and would tender a cashier’s cheek for the purchase price upon delivery of the deed. Mills, too, was undoubtedly aware of this practice and his failure to present the deed had the effect of frustrating Adams’ efforts to complete the sale transaction timely.

The procedure followed was later confirmed as the proper approach by Adams’ lawyer. He too requested delivery of the deed from Mills as a first step toward completing the sale. It was incumbent upon Adams, under principles of fair dealing, which should always prevail in matters of contract, to inform Mills of his intention, in order that Mills might not be taken by surprise at the last minute and fail in his obligation to proffer the deed in time. Anse La Butte Oil & Mineral Co. v. Babb, 122 La. 415, 47 So. 754 (1908).

The contention of Mills that Adams cannot succeed here because he has not tendered the purchase price assumes that such a tender was necessary, when, as a matter of fact, it was not. Adams offered to perform and when he did so it was incumbent upon Mills to proffer the deed before Adams could be called upon to pay the price. Cf. La. Civil Code art. 2462.

When Peters mailed the certified letter to Mills on October 27, 1977, addressed to Mills at his residence as stipulated in the contract, it was incumbent upon Mills to receive and claim the letter. According to the notations on the envelope an attempt was made to deliver the letter on October 28,1976. It would avail nothing to stipulate that notices are to be mailed to a certain address if the party to be notified fails to claim the mail.

For the reasons assigned, the judgment of the Court of Appeal is affirmed.

MARCUS, J., dissents and assigns reasons.

DENNIS, J., dissents and assigns reasons.

SANDERS, C. J., dissents for reasons assigned by DENNIS, J.

DENNIS, Justice,

dissenting.

I respectfully dissent.

In my opinion there is no dispute as to a material issue of fact or credibility in the instant case. Adams was given an option to purchase immovable property, which, in pertinent part, provided:

“If Jerry A. Adams fail [sic] to purchase the above described property, on Nov. 1,1976 Mills, Newt V., agreement to sell is void and agreement to sell is canceled.”

The contract is not ambiguous. Adams was required to “purchase” the property on November 1, 1976. He did not do so. In fact, he did not even tender the purchase price before that date. Accordingly, the option or offer to sell by Mills expired on November 1, 1976 in accordance with the agreement between the parties. The course charted by the majority opinion, although well-intentioned and based on principles of “fair dealing,” ignores the clear provisions of the contract between the parties and will have far-reaching effects upon thousands of transactions involving immovable property in this state. Unless the owner of property frames the option or offer to sell in the most explicit terms, he will not be able to prevent the offeree from effecting an indefinite extension of his offer to sell by simply indicating an intention to purchase before the expiration of the offer.

MARCUS, Justice

(dissenting).

Legal agreements having the effects of law upon the parties, none but the parties can abrogate or modify them. La.Civ.Code art. 1945. This court is bound to give legal effect to all such contracts according to the true intent of all the parties; the intent is to be determined by the words of the contracts, when these are clear and explicit and lead to no absurd consequences. Id. Under the clear and explicit terms of the “rent contract” entered into between Mills and Adams, Mills, as owner, agreed to sell the leased premises to Adams on November 1, 1976, for $450.00 per acre, a total of $72,-000.00 cash. The contract provided that, if Adams failed to purchase the property on November 1, 1976, the agreement to sell would be void and cancelled.

It is undisputed that Adams failed to tender the purchase price on November 1, 1976. However, the majority opinion holds that expressions of an intent to exercise the option made by Adams prior to November 1, 1976, satisfies Adams’ contractual obligation to tender the purchase price on November 1, 1976. Nothing in the contract before us indicates that a mere expression of intent to exercise the option was considered by the parties as compliance with the buyer’s obligation to tender the purchase price on November 1, 1976. Hence, the effect of the majority opinion is to abrogate or modify a clear and explicit contractual provision.

One of the obligations of the buyer is to pay the price of sale. La.Civ.Code art. 2549. The price ought to be paid on the day and at the place mentioned in the sale. La.Civ.Code art. 2550. The contractual provision before us clearly provides that Adams was obligated to tender the price of sale on November 1, 1976, in order to hold Mills to his obligation to sell the leased premises. See Standard Oil Co. v. Milhol-land, 167 La. 707, 120 So. 59 (1929). In the absence of buyer’s tender of purchase price, Mills was not legally put in default. See La.Civ.Code art. 1918.

Accordingly, I respectfully dissent.