author: DENNIS, Justice. SUMMERS, J.,

text:
    STATE of Louisiana v. Norris HENDERSON and Clarence Henderson.
    No. 61525.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Rehearing Denied Oct. 19, 1978.

      Loyola Law School Clinic, William J. O’Hara, III, Supervising Atty., Kathleen O’Leary, Student Practitioner, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

The defendants were charged with committing the second degree murder of Betty Jean Joseph in violation of La. R.S. 14:30.1. After a joint trial by jury each defendant was found guilty as charged and sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence for twenty years. On appeal the defendants rely upon numerous assignments of error comprising ten arguments.

As nineteen year old Betty Jean Joseph was riding her bicycle to summer school in New Orleans three men drove up in a burgundy Chevrolet automobile with a black vinyl top and tried to force her into the car. An eyewitness who saw this incident wrote down the car’s license number, and reported the events to the police by telephone. As he returned from making his call he heard gunshots and saw one of the men pointing a gun at Ms. Joseph who was falling. All of the assailants then fled in the Chevrolet. While lying on the ground waiting for an ambulance the victim made oral statements to two school officials who arrived several minutes after the shooting. The victim was taken to the hospital and died about 12:00 p. m. the same day. The burgundy Chevrolet driven by the assailants was found by the police shortly after the shooting. A fingerprint found on the car matched the ink impression taken from one of Clarence Henderson’s fingers. Because the eyewitness was not asked to identify the assailants at trial, Ms. Joseph’s statement to the school officials assumed crucial importance.

ARGUMENT NO. 1 (Norris Henderson Assignment No. 4) (Clarence Henderson Assignment No. 5)

These assignments raise the question of whether a statement by the victim of a shooting is admissible as an “excited utterance” exception to the hearsay rule where (1) the declaration was made by a fatally wounded victim during a period of ten to twelve minutes following the shooting; (2) the utterance was made in response to several general, non-suggestive questions; (3) the statement went beyond a description of the exciting event and dealt with past facts; and (4) the statement could be viewed as self-serving because it identified as one of her assailants a person the victim believed to have been responsible for her brother’s death.

After receiving reports of a disturbance near Cohen Senior High School about 7:30 a.m. on July 24,1974, Reynaud Alexander, a school administrator, immediately investigated and found Betty Jean Joseph lying wounded on the sidewalk about one block from the school building. In response to his inquiry of “what had taken place,” she replied that two brothers named Henderson, one of whom she identified as Norris Henderson, and a third person had shot her after attempting to pull her off a bicycle. After further questions, the victim indicated that one of her assailants was a person who was supposed to have been imprisoned after she testified against him in connection with the slaying of her brother. Alexander Brumfield, the principal of Cohen Senior High School, arrived at the victim’s side shortly after Mr. Alexander and heard substantially all of her statements. These declarations by Betty Jean Joseph were made between the time of the shooting and the arrival of an ambulance ten to twelve minutes after Mr. Alexander came upon the scene.

Outside the jury’s presence the trial judge heard evidence concerning the utterances by the victim at the location of the shooting as well as testimony relating to later statements she had made in an ambulance and at a hospital. After referring to authorities cited by the prosecution relating to excited utterances, the trial judge ruled that evidence pertaining to the statement made at the scene of the crime was admissible but that testimony concerning the later utterances would be excluded because the victim was then no longer in an excited state.

Because the testimony by Alexander and Brumfield was evidence of an out-of-court statement by the deceased Betty Jean Joseph, and because her statement was offered as an assertion to show the truth of matters asserted therein, and thus rested for its value upon the credibility of the out-of-court asserter, their testimony was hearsay evidence. State v. Martin, 356 So.2d 1370 (La.1978). Hearsay evidence is inadmissible except as provided by statute, La. R.S. 15:434, or by the traditional common law hearsay exceptions. State v. Smith, 285 So.2d 240 (La.1973).

One of the traditional common law hearsay exceptions recognized by this Court is the exception for certain statements made under the influence of a startling event. Formulations of the exception differ, but all courts agree on two basic requirements. There must be an occurrence or event sufficiently startling to render normal reflective thought processes of an observer inoperative. Additionally, the statement of the declarant must have been a spontaneous reaction to the occurrence or event and not the result of reflective thought. State v. Smith, supra; see, C. McCormick, Evidence, § 297 at 704 (2d ed. 1972).

Many factors enter into determining whether in fact the second requirement has been fulfilled and whether a declarant was at the time of an offered statement under the influence of an exciting event. Probably the most important of these is the time factor. In this connection the trial court must determine whether the interval between the event and the statement was long enough to permit a subsidence of emotional upset and a restoration of a reflective thought process. Several additional factors which may indicate that the statement was the result of reflective thought, but which do not automatically justify exclusion, are as follows: Evidence that the statement was self-serving or made in response to an inquiry; Expansion of the excited utterance beyond a description of the exciting event into past facts or the future; Proof that the declarant performed tasks requiring reflective thought processes between the event and the statement. See, State v. Smith, 285 So.2d 240 (La.1973); C. McCormick, Evidence, § 297 at 705, et seq. (2d ed. 1972); G. Pugh, Louisiana Evidence Law, at 515 (1974), at 208 (Supp.1976); Comment, Excited Utterances and Present Sense Impressions as Exceptions to the Hearsay Rule in Louisiana, 29 La.L.Rev. 661 (1969).

Applying these factors and requirements in the instant case, we conclude that the evidence reasonably supports the trial judge’s factual determination that Betty Jean Joseph was at the time of the offered statement under the influence of an exciting event. Ms. Joseph had been attacked by three men and shot with a firearm. Although she was unaware that her wounds were fatal, Ms. Joseph had experienced events clearly startling enough to deprive her of reflective thoughts. The time interval between the events and the statement could not have been more than fifteen minutes, not long enough for her emotional upset to diminish considering the ferocity of the attack and the severity of her injuries. Ms. Joseph was completely incapacitated from the time of the shooting until her death and did not perform any tasks requiring reflective thought during this time. It is true that her statement could be considered self-serving since it implicated the person whom she believed had killed her brother; also, her statement alluded to the past trial and incarceration of one assailant, and her statement was given in response to a few non-leading questions, such as, what happened? and, who did it? However, the trial judge evidently concluded that the ambivalent suggestions that she engaged in a reflective thought process were outweighed by the factors indicating a disruption of her normal capacity for reflective and fabrica-tive thought. Under the circumstances of the case, the trial judge’s decision was a reasonable and responsible exercise of judgment. The fact that the trial judge referred to legal authorities concerning excited utterances before ruling and distinguished the initial statement from later statements made in an ambulance and at the hospital, which were excluded on the ground that the declarant had calmed down and was no longer under the influence of the startling events, inspires further confidence in his decision.

This argument does not present reversible merit.

ARGUMENT NO. 2 (Norris Henderson Assignment No. 1) (Clarence Henderson Assignment No. 4)

After the jury was empanelled and before the first witness was sworn defense counsel informed the judge that they had learned the State possibly would attempt to introduce an out-of-court statement by the deceased victim, Betty Jean Joseph. Attorneys for the defendants then moved that the State be ordered to furnish them with any record within its possession or knowledge of prior convictions of the victim, Betty Jean Joseph. The trial judge denied the motion apparently for the reason that he did not think the out-of-court statement of the deceased victim, if admissible, would be susceptible to impeachment. In his per cu-riam the trial judge stated that his ruling was also based upon the prematurity of the motion. However, the record does not reflect that defense counsel were so apprised at the time of the ruling. Consequently, it was reasonable for them to assume that their objection to the denial of the motion was properly preserved, and it was not necessary that the motion be renewed later in the trial.

The primary question presented by these assignments, therefore, is whether the de-clarant of an excited utterance is open to impeachment and discrediting in the same way as witnesses who testify in court. Although we have found no precedent in Louisiana or elsewhere for deciding the issue, we see no reason why impeachment should be disallowed in this instance.

It is well settled that introduction of another type of out-of-court statement, the dying declaration, opens the declarant to impeachment and discrediting, so far as such a process is feasible, since the dying declaration is in effect a testimonial statement. Thus, impeachment by bad testimonial character is allowable, or by conviction of a crime, or by prior or subsequent inconsistent statements. 5 J. Wigmore, § 1446 at 307-08 (Chadbourn rev. 1974); B. Kliks, Impeachment of Dying Declarations, 19 Ore.L.Rev. 265 (1940); Comment, Dying Declarations in Louisiana Law, 22 La.L. Rev. 651 (1962); Annotation, Impeaching or Discrediting Dying Declarations, 16 A.L.R. 411 (1922).

Because the excited utterance also is in effect a testimonial statement, its introduction likewise should make the declarant susceptible to impeachment and discrediting in the same way as other witnesses, so far as such a process is feasible. Impeachment of an excited utterance by conviction of a crime is certainly feasible and should be allowed.

Accordingly, the defense request for the prior conviction records of the deceased victim constituted a specific and relevant request for evidence materially favorable to the accused. The trial judge, therefore, fell into error in not requiring the prosecutor to respond to the specific request of the defense by stating whether the State had’ knowledge or possession of any record of convictions of the victim, and, if so, by not requiring the prosecutor to furnish them to defendant or submit them to the court for a determination as to whether the defendant was entitled to this material. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Harvey, 358 So.2d 1224 (La.1978); State v. May, 339 So.2d 764 (La.1976); cf. State v. Falkins, 356 So.2d 415 (La.1978).

In accordance with the procedure established in Agurs, May and Harvey, this case will be remanded to the trial court for it to determine (1) if there was a suppression of the existence of conviction records of the victim, and, if so, (2) whether the material suppressed would upon its evaluation in the context of the entire record create a reasonable doubt as to either defendant’s guilt. Should the trial court find that such a reasonable doubt exists after its evaluation, a new trial will be required. If the trial court finds there was no suppression of material which should have been disclosed, or if it finds, after an evaluation as described, there is no reasonable doubt as to either defendant’s guilt, the convictions and sentences will be affirmed, subject to review by this Court on appeal.

ARGUMENT NO. 3 (Norris Henderson Assignment No. 3) (Clarence Henderson Assignment No. 7)

During trial defense counsel orally requested a subpoena duces tecum ordering the production of a police department press release issued to the New Orleans newspapers which resulted in news stories stating that after being shown photographs Ms. Joseph identified as one of her attackers a person then in the state penitentiary, and further ordering the State to produce any photographs shown to Ms. Joseph.

In response to the request for photographs the prosecuting attorney stated in open court that no photographs had been shown to or identified by the victim, and that these facts could be verified by the investigating officers who were present or under subpoena. No attempt was made by defense counsel to question the investigating officers on this subject. The trial judge indicated in his per curiam that he took no further action because it was apparent that no photographs were shown or identified. Because of defense counsel’s apparent acceptance of the prosecuting attorney’s statement in open court to this effect, we conclude that the failure by the trial judge to act further did not constitute error.

In his per curiam the trial judge indicated that the defense was not entitled to the police department press release requested because defense counsel had not properly designated the request as a motion for exculpatory evidence. The trial judge recognized that “if said press releases and other documents did contain names of witnesses favorable to the . . . defendants and were withheld from the defense by the prosecutor and/or the New Orleans Police Department, they would certainly fall within the classification of exculpatory evidence.” Although defense counsel styled the motion as a subpoena duces tecum it apparently was clear to the judge that in fact defendants had made a request for exculpatory evidence.

Considered in this light, the defense request for the press release, which possibly contained evidence of the victim’s mistaken identification of a person incarcerated in the penitentiary as one of her assailants, constituted a specific and relevant request for evidence materially favorable to the accused. For the same reasons that the victim’s prior convictions would be admissible for the purpose of impeachment, evidence of the victim’s misidentification of a prison inmate as one of her assailants would be admissible to discredit her excited utterance implicating the defendants. See, 5 J. Wigmore, Evidence, § 1446 at 307-08 (Chadbourn rev. 1974).

Accordingly, upon remand the trial court is directed to determine if there was a suppression of press releases leading to evidence that would create a reasonable doubt as to the guilt of either of the defendants when considered in the context of the entire record. The trial court is further directed to take the appropriate action indicated by its findings as outlined in our preceding discussion of the assignments related to possible suppression of the conviction record of the victim.

ARGUMENT NO. 4 (Norris Henderson Assignment No. 7)

Defendant Norris Henderson assigned as error the trial judge’s exclusion from evidence of a letter which the defendant contends was written by his stepmother and would corroborate his alibi that he was in California on the date of the murder. Since the letter was written evidence of an out-of-court statement by the stepmother, offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter, the letter was hearsay evidence. See, State v. Martin, 356 So.2d 1370 (La.1978). C. McCormick, Evidence, § 246 at 584 (2d ed. 1972). Hearsay evidence is inadmissible except as provided by statutory or traditional common law exceptions. La. R.S. 15:434; State v. Smith, 285 So.2d 240 (La.1973). Defendant Norris Henderson has not informed us of any applicable exception, and we are aware of none which would allow introduction of the letter into evidence.

This assignment'is without merit.

ARGUMENT NO. 5 (Both defendants’ Assignment No. 14)

This assignment follows defendants’ timely objections to the trial court’s refusal to give a special charge orally requested by the defendants after argument and the court’s charge to the jury. The request was merely that the court “give a charge to the jury with reference to identification.” Oversight was the only reason suggested by defense counsel for not having made the request in writing before argument.

Louisiana Code of Criminal Procedure Article 807, in pertinent part, provides:

“The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.”

Where the necessity for the special charge arises after argument has begun it may be an abuse of discretion to refuse it on the ground that the request is not timely. State v. LeBlanc, 297 So.2d 433 (La. 1974). In the instant case defendants do not contend that the necessity for the charge arose after argument had begun or explain why they could not have requested it at the proper time. Accordingly, the requested charge was one which could be received or rejected in the court’s discretion after argument has begun, and the court’s refusal to give the charge was not an abuse of its discretion.

This assignment is without merit.

ARGUMENT NO. 6 (Both defendants’ Assignment No. 11)

Although defendants concede that the trial court’s charge relating to the motive for commission of a crime was fair and legally correct, defense counsel assign error on the ground that the evidence affords no support for a finding that either defendant had a motive for the killing. The record reveals, however, that defense counsel elicited testimony from a state witness on cross-examination that the victim stated that she had testified against one of her assailants in a previous criminal prosecution. Since the victim identified the defendants as two of her assailants in her excited utterance, there was evidence which tended to show that the defendants, as brothers, had a motive to retaliate against the victim for her testimony against one of them.

This assignment is without merit.

ARGUMENT NO. 7 (Norris Henderson Assignment No. 8) (Clarence Henderson Assignment No. 13)

In these assignments defendants contend that the trial court erred in refusing to sustain their objections to alleged prejudicial statements made by the prosecutor in closing and rebuttal arguments. We have reviewed each of the allegedly prejudicial comments by the State and do not find that they are of the character which would warrant a reversal of defendants’ convictions. As this Court has consistently held, a verdict will not be overturned on the basis of improper argument unless the Court is thoroughly convinced that the jury was influenced by the remarks and that they contributed to the verdict. See, State v. Crumholt, 357 So.2d 526, 530 (La.1978).

This assignment is without merit.

ARGUMENT NO. 8 (Both defendants’ Assignments Nos. 9, 10 and 12)

These assignments refer to the trial court’s refusal to receive a requested special charge and to defendants’ objections to the general charge.

The trial judge’s per curiam states that the requested special charge was rejected because, among other reasons, it was requested orally rather than in writing. However, the record of the trial does not contain any statement by the trial judge indicating that he based his ruling upon the form of the request. He entertained numerous oral requests and objections by the defendants at the same time as this one, and amended the general charge in response to some of them. Accordingly, it appears from the record that the trial judge in fact dispensed with the requirement that requested special charges be in writing and tacitly agreed to consider such instructions as orally proposed.

Defense counsel requested that the court either read Louisiana Code of Criminal Procedure Article 804 in its entirety to the jury or include within its general charge a statement that the defendants are to be given “the benefit of every reasonable doubt arising out of the evidence or out of the lack of evidence in the case.” The trial court denied the request on the ground that it was included in the general charge. La. C.Cr.P. art. 807.

The trial court’s general charge failed to instruct the jury in a straightforward manner that the defendants were entitled to the benefit of every reasonable doubt based on the lack of evidence in the case. The court’s instructions included, however, statements to the effect that the defendants were entitled to benefit from reasonable doubt based upon a finding that the evidence was “unsatisfactory” upon any point essential to a finding of guilt; and that the jury as exclusive judges of the facts must decide which facts had been proved and which facts had not been proved.

Although the statutory expression more clearly and directly supplies the essential ingredient of the general charge, the instructions given by the trial court substantially complied with the legislative intent of Article 804. Our approval of the trial court’s formulation, however, is limited to the particular charge given within the context of the particular instant case. It would have been preferable for the trial court to have read the exact language of Article 804 to the jury, and future use of the general charge used in the instant case could easily result in reversible error. See, State v. Gibbs, 355 So.2d 1299 (La.1978).

Defense counsel further objected to the general charge on the ground that it instructed the jury not to go beyond the evidence for doubts to acquit but failed to admonish the jury that it must likewise confine itself to the evidence in order to convict. It would have been more evenhanded, and therefore preferable, for the court to have included in its general charge a prohibition against the consideration of extrinsic evidence to convict the defendant. Nevertheless, the charge objected to was immediately accompanied by this instruction: “You must not resort to extraneous facts or circumstances in reaching your verdict.” Moreover, the court’s instructions began by stating that a defendant is not required to prove his innocence and that the burden is on the state to prove his guilt beyond a reasonable doubt. This requirement was repeated several times, once coupled with the instruction that guilt must be established by legal and sufficient evidence, and followed by admonitions that the jury must receive its evidence from the witnesses and disregard any statement by the attorneys not substantiated by the sworn testimony. Taken as a whole, the general charge did not sanction conviction of the defendants on the basis of extraneous evidence.

Defendants’ final objection to the instructions contends that the trial court should not have attempted to define “reasonable doubt” for the jury because this concept is “subjective” and “inherent in the mind of each individual.” The argument is without merit because the trial court is specifically authorized by law to define “reasonable doubt” and give further charges upon it. La.C.Cr.P. art. 804.

These assignments do not present reversible error.

ARGUMENT NO. 9 (Norris Henderson Assignment No. 2) (Clarence Henderson Assignment No. 1)

We have previously determined that Louisiana Code of Criminal Procedure Article 784 is applicable to the criminal courts in Orleans Parish, State v. Hoffman, 345 So.2d 1 (La.1977), and thus there was error in calling prospective jurors in the order their names appeared on a list submitted by the jury commissioner rather than by lot in open court. However, in Hoffman we ruled that our construction and reconciliation of Louisiana Code of Criminal Procedure Articles 409.1 and 784 would only have prospective application to cases in which a jury panel was selected after Hoffman became final (April 26,1977) except for cases that had been submitted to this Court for decision by April 26, 1977 (this appeal was lodged on February 2, 1978). Therefore, Hoffman has no application to the instant case.

ASSIGNMENT OF ERROR NO. 6 (Clarence Henderson)

Defendant Clarence Henderson assigns as error the trial court’s refusal to grant his motion for a directed verdict after the State had presented its case. Under Louisiana Code of Criminal Procedure Article 778 a motion for acquittal is not authorized in a jury trial.

Nevertheless, because the defendant filed a motion for new trial on the ground that the evidence was insufficient to sustain the verdict we will treat this assignment as one taken from the denial of the motion for new trial. A review of the record indicates there was reasonable evidence presented by the State to support the verdict. A witness to the incident testified that he saw two men trying to force Ms. Joseph into a-burgundy and black Chevrolet. The license plate number he noted was identical to that of the burgundy Chevrolet found by police with the defendant’s fingerprint. The excited utterance of the victim indicated that a brother of Norris Henderson had been one of the assailants.

This assignment of error is without merit.

For the reasons assigned, defendants’ convictions and sentences are affirmed but the case is remanded for further proceedings in accordance with the views expressed herein, reserving unto the trial court the authority to grant a new trial herein and reserving the defendants’ rights to appeal from any adverse ruling by the trial court.

AFFIRMED CONDITIONALLY AND REMANDED.

SUMMERS, J.,

concurs in part and dissents in part. I agree the conviction should be affirmed, but I do not agree to the remand or the decision on Assignments 2 or 3.

DIXON, J., dissents.

      .La.C.Cr.P. art. 804 provides:
      “A. In all cases the court shall charge the jury that:
      “(1) A person accused of crime is presumed by law to be innocent until each element of the crime, necessary to constitute his guilt, is proven beyond a reasonable doubt;
      “(2) It is the duty of the jury, in considering the evidence and in applying to that evidence the law as given by the court, to give the defendant the benefit of every reasonable doubt arising out of the evidence or out of the lack of evidence in the case; and
      “(3) It is the duty of the jury if not convinced of the guilt of a defendant beyond a reasonable-doubt, to find him not guilty.
      “The court may, but is not required to, define ‘the presumption of innocence’ or ‘reasonable doubt’ or give any other or further charge upon the same than that contained in this article.
      “B. When there are several grades of an offense contained in a single count, the court shall charge the jury as to each grade of which the defendant could be found guilty. The court shall in that case also charge the jury that if it has a reasonable doubt as to any or all grades of the offense charged it shall find the defendant not guilty of that grade, or all grades of the offense, as the case may be."

      . “If, after giving a fair and impartial consideration to all of the facts in the case, you find the evidence unsatisfactory upon any single point indispensably necessary to constitute the defendants’ guilt, this would give rise to such a reasonable doubt as would justify you in rendering a verdict of not guilty.”

      . “You are the exclusive judges of the facts. You are to find from the evidence which facts have been proved and which facts which have not been proved.”

      . In the absence of the previously discussed accompanying instructions which state that the defendant is to be given the benefit of reasonable doubt if the evidence is “unsatisfactory” and that it is the jury’s duty to decide which facts have not been proved, this charge “is patently erroneous and should not be given.” State v. Gibbs, 355 So.2d 1299, 1301 (La.1978).


source: Caselaw Access Project

author: DIXON, Justice. MARCUS, Justice

license: Public Domain

text:
    Joe DIXON, Individually and as natural tutor of the minor, Judith Ann Dixon v. ALLSTATE INSURANCE CO.
    No. 61610.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Rehearing Denied Oct. 5, 1978.
    Joseph D. Caseio, Jr., Hayes, Harkey, Smith & Caseio, Monroe, for plaintiffs-applicants.
    Ben R. Hanchey, Hudson, Potts & Bernstein, Monroe, for defendants-respondents.
   DIXON, Justice.

Joe Dixon sued individually and as the natural tutor of his minor daughter, Judith Ann, for injuries she sustained from colliding with and penetrating a sliding glass door in the home of defendant’s insured. Subsequently Judith Ann was substituted as plaintiff for her own damages upon her reaching majority.

In his reasons for judgment, the trial judge found that “sliding glass doors can under certain circumstances, cause a deceptive illusion which could cause injury to an unsuspecting party . . Nevertheless, plaintiff was barred from recovery by her contributory negligence. The court finding that “but for plaintiff’s haste in exiting the premises she would have been able to detect the glass and would not have collided with and penetrated the glass door which caused her the dreadful injuries . ” The Court of Appeal agreed with the trial court’s conclusion regarding plaintiff’s negligence and affirmed. 353 So.2d 1054 (2d Cir. 1978). We granted writs to review the rulings of the lower courts. 355 So.2d 265 (La.1978).

On May 30, 1975 two boys and two girls met at Mrs. Dorothy Fuller’s suburban home to cook hamburgers and swim, in celebration of the end of the high school year. One of the boys was Andrew Fluck, Mrs. Fuller’s grandson. Mrs. Fuller greeted the young people, then left the house. The boys started a fire in a barbecue pit while the girls changed to bathing suits and prepared the meat.

Between forty-five minutes and one and one-half hours after their arrival, the boys found a water pistol one of the girls had brought and squirted the girls. Susan Roberts began to struggle with David Dies to recover the water pistol, both moving into the den from the kitchen.

The den was about 16' X 23', with some glass on three walls, and a floor paved with random sized broken paving tiles. One of the long walls was almost all glass, designed, said Mrs. Fuller, for “an unrestricted view of the bayou.” The glass doors opened to a screened porch which appears to be right on the bank of a body of water; the floor of the porch is an extension of the floor of the den, surfaced with broken pav-ers and interrupted only by the track for the sliding doors.

The doors were apparently not made of tempered glass or safety glass. Each was 4' wide and 6' 8" tall (6' 8" wooden doors in a residence the age of Mrs. Fuller’s house are seldom more than 3' wide) and each was flanked by a stationary glass,panel of about the same size. Each glass had stiles and rails of about 3" width. The stiles which met at the center of the opening were slightly wider to accommodate a latch and seal.

Mrs. Fuller said the doors were clean and were open when her grandson and his guests arrived. Andrew and David closed them about ten minutes before the accident to exclude the smoke from the barbecue pit, which sat on the screened porch. The girls had been in and out of the doors several times while they were open, but did not know they had been closed. Judith had probably not been in the den before the day of the accident. Judith was sixteen years old, musical, healthy and had an “A” average in school.

Judith followed David and Susan into the den, joining the play. Susan succeeded in taking the water pistol from David and handed it to Judith who quickly turned toward the porch, took three or four steps and crashed through the glass door, suffering severe cuts.

The gruesome injury suffered by Judith is evidence of the magnitude of the risk created by the glass doors. She fell at the threshold, with her head out of and feet inside the den. Large, heavy fragments of glass pierced her flesh and had to be forcibly removed by the boys to prevent further injury before she could be moved.

Care should increase with the magnitude of the harm which might befall a victim. A large sheet of thin, clean, transparent, untempered, not-laminated glass presents such an obvious risk of serious injury that it must be considered a hazardous substance. The location of such glass panels, blocking entry and exit through openings in houses designed as passageways multiply the opportunities for serious accidents.

The very least the owner of a building must do is warn a visitor when such a transparent door is closed. The warning is so simple and inexpensive, especially when compared with the risk of harm, that its absence ought not be excused. A decal, decorative tape, paint, or a simple strip of masking tape might be sufficient to prevent serious injury. The homeowner, in the case before us, welcomed the four teen-agers, including her grandson, to swim, cook out and play in the very area where the hazard was greatest.

When there is an apparent danger, foreseeably involving great risk to the unwary, there is a duty to warn. The homeowner’s failure to take any steps to prevent accident — her failure to warn — was negligence.

Nor has defendant borne the burden of proving contributory negligence. “Contributory negligence is a special defense and the party relying on such a defense takes the burden of establishing it by a preponderance of the evidence.” Foggin v. General Guaranty Insurance Co., 250 La. 347, 363, 195 So.2d 636, 641 (1967). It is not disputed that Judith did not know the previously open doors had been closed, and did not see the glass door until it was too late to stop. Instead, defendant argues that it was her devotion to playing, or her running, or her speed, as found by the trial judge, which prevented her seeing the door. But that was the reason for her presence. She was welcomed to Mrs. Fuller’s home for that purpose.

Defendant also argues that the stiles of the glass doors should have made it obvious to Judith that the doors were closed. But the record does not show clearly the position of the sliding doors when Judith saw them before the accident. If both had been wide open, there was an unimpeded 8' wide passageway, and closing the door would have added 5" or so wide vertical aluminum member (the right stile of the left door and the left stile of the right door) in the center of the 8' opening. But if only one of the glass doors had been open when Judith went in and out, the configuration of the opening remained approximately the same when that door was closed; only the width of the vertical aluminum member in the center of the opening would have changed. Further, if both the doors had been half open before they were closed just before the accident, it is speculative to argue the effect of the position of the vertical members: when both doors are half open, there are six vertical members showing.

Judith was not negligent in playing in the den. That was permitted and expected. The three eyewitnesses were watching when Judith hit the door — Susan was in the act of following Judith out of the room; she screamed when she suddenly realized Judith would crash into the glass. Andrew could not remember whether he called out to Judith. David was watching Judith and did not see the glass, even though he had helped close the doors a few minutes earlier; David only knew Judith had hit the glass because of her fall and the characteristic sound of broken glass.

The “but for” analysis of the trial court and the “had she been attentive” analysis of the Court of Appeal are inadequate to determine contributory negligence. Judith was not under a duty to move slowly. She did not see the glass in time to stop. She was not inattentive. If she had run into a wooden door she would have been inattentive, to say the least. When she succumbed to the illusion of open space (for the creation of which glass doors are employed) she was not negligent. She was looking in the direction in which she was moving, but not until too late to stop did she see that the previously open passageway was now blocked by the closed glass door. Her actions did not constitute fault which caused the accident. The cause of injury was the deceptively clear glass door.

Therefore, the judgments of the lower courts are reversed, and there is now judgment in favor of plaintiffs and against defendant in an amount to be fixed by the Court of Appeal, and all costs. The case is remanded to the Court of Appeal for further proceedings in accordance with this opinion, to fix the sums due plaintiffs from defendant.

SANDERS, C. J., dissents being of the opinion that the judgment of the Court of Appeal is correct. See 353 So.2d 1054.

SUMMERS, J., dissents for the reasons assigned by the Court of Appeal. See 353 So.2d 1054.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

The court of appeal in a unanimous decision affirming the factual conclusion of the trial judge’s finding that plaintiff daughter’s negligence barred recovery stated: “The record indisputably shows she was an active participant in friendly horseplay when this tragic accident occurred. Had she been attentive to her immediate surroundings and exercised a moderate degree of care, she would not have crashed into the glass door panel and caused her admittedly serious injuries.” I agree. Accordingly, I respectfully dissent from the majority opinion reversing the judgments of the lower courts.

      . The National Safety Council reported in 1967 that accidents such as these occurred in 40,000 American homes annually. Safety Newsletter, National Safety Council, Chicago, Illinois, Jury, 1967. See also Annot., 41 A.L.R.3d 176 showing the vast number of cases in other jurisdictions involving collisions with glass doors and panels.
      The use of sliding glass doors in locations where they may be subject to human impact has been determined to be hazardous by various building organizations and federal agencies. These entities have drafted proposed minimum standards aimed at safeguarding life, health and the public welfare by regulating and controlling design and construction. See, e. g., Uniform Building Code, Vol. I, by the International Conference of Building Officials, Chap. 54 (1970 Edition); Standard Building Code, by the Southern Building Code Congress International, Inc., Table 2706 (1976 Edition); HUD Minimum Property Standards § 508-8.1. In the above cited standards sliding glass doors have been identified as “hazardous locations” that require the use of safety glazed glass, i. e. glass which has been specially tempered, laminated or fabricated with wire in the core. Such glass is considered to be less likely to shatter upon impact and thus minimizes the chance of injury.
      Our own legislature by Acts 1972, No. 719, § 1 (amended by Acts 1974, No. 680, § 1) enacted R.S. 40:1711-15 requiring the use of safety glazing materials in any hazardous location including “. . . installations, glazed or to be glazed in residential buildings and other structures used as dwelling . . . known as sliding glass doors . . . which because of their location present a barrier in the normal path traveled by persons going into or out of these buildings, and because of their size and design may be mistaken as means of ingress or egress.” R.S. 40:1711(2). Criminal penalties may be imposed upon those who knowingly sell, fabricate, assemble, glaze, install, consent or cause to be installed glazing materials in hazardous locations. R.S. 40:1713, 1715.
      Defendant’s insured did not violate this statute, which did not become effective until after the home was built and after the insured became the owner. Nevertheless, we consider the legislative enactment to have been a logical response in an attempt to protect persons from the dangers inherent in the use of transparent sliding glass doors, in particular the possibility that such doors could be mistaken by the unwary as an open passageway.


author: SANDERS, Chief Justice. DENNIS, Justice, PER CURIAM.

text:
    STATE of Louisiana v. Mark A. BURGE and Anthony Wayne Morrow.
    No. 61533.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Rehearing Denied Oct. 19, 1978.

      Wendell E. Tanner, Slidell, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Julian J. Ro-drigue,-Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Asst. Dist. Atty., Woodrow W. Erwin, Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged Mark Burge and Anthony Wayne Morrow with aggravated kidnapping and aggravated rape, violations of LSA-R.S. 14:44 and R.S. 14:42, respectively. After a joint trial, the jury found Burge guilty of both charges and Morrow guilty of aggravated kidnapping and forcible rape. The court sentenced defendant Burge to two consecutive life sentences without benefit of parole, probation, or suspension of sentence. Defendant Morrow was sentenced concurrently to life imprisonment without benefit of parole, probation, or suspension of sentence for aggravated kidnapping and to twenty years imprisonment for forcible rape.

Defendants appeal their convictions and sentences, relying upon seventeen assignments of error.

The context facts are that on July 28, 1976, defendants placed a sharp object at the throat of a female shopper as she returned to her car. The two then forced the woman into the passenger side of the vehicle and drove her to a deserted area, where she was beaten and raped. Afterwards, the victim was released; she identified the defendants as the culprits.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Defendants complain that the trial court erred in denying the motion to suppress the inculpatory statements made by the defendants. Defendants argue that the police officers should have informed sixteen-year-old Morrow that he had a right to talk to his parents and to have them present during the “interrogation.” State, in the Interest of Dino, La., 359 So.2d 586 (1978).

The Dino guidelines dealt specifically with the police interrogation of a juvenile. Here, however, the police were not interrogating Morrow. The police had arrested him and had advised him of his Miranda rights. He was immediately placed in the police car, and there he made an entirely unsolicited, inculpatory statement that he had participated in the rape and kidnapping.

All three officers present at the time Morrow made his statement testified emphatically that he had not been questioned, threatened, or abused.

Thereafter the officers drove to a nearby trailer and arrested Burge and then proceeded to Morrow’s mother’s place of employment to inform her of her minor son’s arrest. There his mother was brought to the side of the police car, and in the presence of the three officers Morrow again told his mother that he had committed the offense.

Both of Morrow’s statements were unsolicited; therefore, our Dino rules relating to the interrogation of a juvenile are inapplicable. The trial court, therefore, properly denied defendants’ motion to quash those two statements.

Assignments of Error Nos. 1 and 2 are without merit.

ASSIGNMENTS OF ERROR NOS. 3, 4, 5, 6, AND 7

In these assignments, defendants complain of the denial of their motion to quash and alternative motions to sever. They argue that because Morrow was a sixteen-year-old juvenile at the time of the offense, the unconstitutional aggravated rape and alleged unconstitutional aggravated kidnapping death penalties should have precluded Morrow from being tried in district court.

At the time of the offense, defendant Morrow, age sixteen, was a juvenile and subject to the jurisdiction of the juvenile court except in certain statutorily delineated instances. LSA-R.S. 13:1570 provides in pertinent part:

“Except as otherwise provided herein, the [juvenile] court shall have exclusive original jurisdiction in proceedings:
“A. Concerning any child whose domicile is within the parish or who is found within the parish:
“(5) who violates any law or ordinance, except a child who, after having become fifteen years of age, is charged with having committed a capital crime . . . ”
(Emphasis added.)

Defendants’ motions to quash are based upon the absence of a valid penalty for the aggravated rape charge, denying the district court of jurisdiction. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977).

It is well accepted that an offense retains its “capital” nature within the meaning of LSA-R.S. 13:1570 even though the death penalty is no longer available because of constitutional infirmity. State v. Hills, La., 354 So.2d 186 (1977); State v. Moore, La., 340 So.2d 1351 (1976); State v. Smith, La., 339 So.2d 829 cert. denied, 430 U.S. 986, 97 S.Ct. 1685, 52 L.Ed.2d 381 (1977).

Moreover, we have consistently held that although the death penalty may be unconstitutional, the prosecution for the offense is nonetheless valid. Where necessary, an improper death sentence is vacated, and the case is remanded for resentencing to the most serious penalty for the next lesser included offense. State v. Craig, La., 340 So.2d 191 (1976); State v. Lee, La., 340 So.2d 180 (1976); State v. Sledge, La., 340 So.2d 205 (1976).

We note, however, that defendant Burge was improperly sentenced. At the time of the offense (July, 1976), there was no alternative life sentence available to the jury, as the offense preceded the effective date of LSA-C.Cr.P. Art. 905.6, October 1, 1976. Accordingly, we must vacate Burge’s life sentence for aggravated rape and remand to the trial court for resentencing for the most serious penalty for the next lesser included offense — attempted aggravated rape. LSA-C.Cr.P. Art. 814 as amended by Acts 1973, No. 126, § 1.

In any event, regarding the remaining charge, aggravated kidnapping is a capital offense where, as here, the victim was not released unharmed.

Therefore, Assignments of Error Nos. 3, 4, 5, 6, and 7 are without merit.

ASSIGNMENTS OP ERROR NOS. 8, 10, AND 11

In Assignment of Error No. 8, defendant complains of the prejudicial effect of the State’s incorrect legal statement of the law during the voir dire examination.

The alleged improper statement deals with LSA-R.S. 14:15, which provides:

“The fact of an intoxicated or drugged condition of the offender at the time of the commission of the crime is immaterial, except as follows:
“(1) Where the production of the intoxicated or drugged condition has been involuntary, and the circumstances indicate this condition is the direct cause of the commission of the crime, the offender is exempt from criminal responsibility.
“(2) Where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of a specific criminal intent or of special knowledge required in a particular crime, this fact constitutes a defense to a prosecution for that crime.”

During voir dire examination, the prosecutor misstated LSA-R.S. 14:15 as follows:

“Now Article 15 which Mr. Tanner read you concerns an intoxicated or drugged condition of the offender at the time of the commission of the crime. The law says that, it is immaterial where it is involuntary, but where it is voluntary, it says it must be to such an extent that it has precluded the presence of a specific criminal intent or of special knowledge required in a particular crime, this fact constitutes a defense to a prosecution for that crime.
“Now would you consider the crimes themselves in reaching this determination in order to determine what intent is necessary and if there is any special knowledge necessary to commit the crime before you would reach the determination that if the self-induced intoxication or drugged condition is so great that it could repair their ability to distinguish between right and wrong? Do you understand my question?”

Voluntary intoxication cannot excuse the crime, but it can be a defense to an offense which requires specific intent or special knowledge if the intoxication precluded the capacity to form that intent. State v. Scott, La., 344 So.2d 1002 (1977); State v. Boleyn, La., 328 So.2d 95 (1976).

Although the prosecutor improperly combined two insanity tests, the prospective juror, when asked by the court, stated that she was not confused. Moreover, the correct explanation was repeated during closing argument and during the jury charge.

Assignment of Error No. 8 is without merit.

Similarly, Assignment of Error No. 10 dealt with the same issue. It arises out of the following prosecutional statement made during voir dire examination:

“The Judge will also tell you that it’s my job representing the people to prove the guilt of both of these defendants to your satisfaction beyond a reasonable doubt and, on the other hand, as a plea of not guilty by reason of insanity has been interposed, it is the defendants’ burden to prove the insanity or the inability to perform the specific intent or required knowledge at the time of the commission of the crime to your satisfaction by a preponderance of the evidence.”

The prosecutor correctly stated that it is defendants’ burden to prove insanity by a preponderance of the evidence. LSA-C. Cr.P. Art. 652; State v. Rollins, La., 351 So.2d 470 (1977); State v. Daigle, La., 344 So.2d 1380 (1977); State v. Vincent, La., 338 So.2d 1376 (1976).

Assignment of Error No. 11 was based on the following statement made by the prosecutor during voir dire examination concerning the plea of not guilty and not guilty by reason of insanity:

“In other words, he is saying on the one hand, I’m not guilty, the defendants aren’t; on the other hand, I’m guilty, but I didn’t know what I was doing.”

Defense counsel objected and moved for a mistrial. Defense counsel complained that the importance of that statement was that the defendants had admitted committing the crime.

In State v. Clark, La., 305 So.2d 457 (1974), wé stated that a plea of “ ‘not guilty and not guilty by reason of insanity’ is tantamount to an alternative admission of the criminal conduct.” The defense contends that the State’s failure to explain the “alternative” nature of the charge was prejudicial.

We disagree. After this objection, the court removed the jury, heard the arguments, and then correctly explained the nature of the plea and admonished them not to interpret the plea as an admission of guilt.

Assignments of Error Nos. 8, 10, and 11 are without merit.

ASSIGNMENT OF ERROR NO. 12

In Assignment of Error No. 12, defendant complains that the trial court erred in sustaining the State’s hearsay objection to this question relating to the defendants’ intoxication: “Did they [defendants] convey to you the reason why?”

The jury was retired, and defendants argued that the answer was admissible as part of the res gestae and as an admission against interest.

LSA-R.S. 15:447 and 15:448 are relevant to defendants’ hearsay objection. The statutes provide, respectively:

“Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.”
“To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.”

The statement is not res gestae because it occurred several hours before the offense and there is nothing to indicate that the offense had been planned at that time.

Moreover, even if the statement was admissible to show the defendants’ states of mind at the time of the offense and it was improperly precluded, no prejudice resulted. The defendants successfully introduced independent evidence from several other witnesses that the defendants were very intoxicated immediately before and after the offense.

Assignment of Error No. 12 is without merit.

ASSIGNMENTS OP ERROR NOS. 9 AND 15

Herein defendants complain of the bifurcated aspects of the aggravated kidnapping trial proceedings against them. Specifically, they protest the impropriety of the prosecutor’s reference to the bifurcated trial in the voir dire and the actual sentencing hearing on the aggravated kidnapping conviction.

Initially, we note that the statute prohibiting aggravated rape, LSA-R.S. 14:44, provides that:

“Whoever commits the crime of aggravated kidnapping shall be punished by death; provided that if the kidnapped person is liberated unharmed before sentence is imposed then the sentence of death shall not be given but the offender shall be sentenced to life imprisonment at hard labor.”

Defendants correctly note that they committed the offense prior to the October 1, 1976, effective date of LSA-C. Cr.P. Art. 905 et seq., the articles under which the defendants’ aggravated kidnapping sentence was determined. However, the sentencing hearing being procedural in nature, is governed by the time of trial.

In State v. Sepulvado, La., 342 So.2d 630 (1977), we examined the procedural and substantive aspects of statutory law as follows:

“Procedural laws relate exclusively to questions of remedy and, in criminal cases, pertain- to the method prescribed for the conduct of the prosecution. Enactments of this nature may regulate the mode of prosecution after their effective date and not offend the prohibition against ex post facto laws, for no one has a vested right in a mere mode of procedure. Todd v. State, 228 Ga. 746, 187 S.E.2d 831 (1972). See also Fithian v. Centanni, 159 La. 831, 106 So. 321 (1925).
“On the other hand, liability for criminal conduct attaches at the moment that the crime is committed. Therefore, laws passed after the offense may not work to either redefine or increase the severity of punishment for the crime. To do so would impair substantive rights. Such a law would violate the prohibition against ex post facto laws of the Louisiana and the United States Constitutions.”

In the instant case, the sentencing hearing does not increase the severity of punishment for the crime. On the contrary, it allows the jury an option to recommend a life sentence rather than have the trial court sentence the defendants to death where, as here, the victim was not released unharmed but was raped and beaten. Without the benefit of LSA-C.Cr.P. Art. 905 et seq., the court must sentence defendants to death under LSA-R.S. 14:44.

We have consistently held that the applicability of statutory changes in procedure is determined by the trial date. See State v. Jackson, La., 344 So.2d 961 (1977); State v. Clark, La., 340 So.2d 208 (1976); State v. Marmillion, La., 339 So.2d 788 (1976).

Assignments of Error Nos. 9 and 15 are without merit.

ASSIGNMENTS OF ERROR NOS. 16, 17, 18, AND 19

The remaining assignments of error deal with the trial court’s alleged improper sentencing of the defendants. Both defendants complain of both their sentences. They argue that the court erred in reasoning that if the sentence is invalidated, the defendant can be resentenced to the most serious penalty for the next lesser included offense.

As noted in Assignments Nos. 3 and 4, defendant Burge properly contests the correctness of his aggravated rape sentence. He, therefore, must be resentenced.

However, Morrow having been found guilty of forcible rape, a lesser included offense, was properly sentenced to twenty years.

Defendants also argue that they were improperly sentenced under an unconstitutional aggravated rape statute in that it provides for capital punishment. Although we have upheld the constitutionality of the aggravated kidnapping statute when attacked on other grounds, this Court has never been presented with this specific constitutional challenge. See State v. Edwards, La., 287 So.2d 518 (1973).

However, petitioners’ allegation is now moot. In light of their bifurcated trial (sentencing hearing), the defendants were neither exposed to nor given an unconstitutional death sentence. As LSA-C.Cr.P. Art. 905 et seq. was applied, defendants cannot now be heard to complain.

For the reasons assigned, the convictions are affirmed. However, defendant Burge’s life sentence for aggravated rape is vacated, and his case is remanded for resentenc-ing consistent with the views herein expressed. In all other respects, the defendants’ sentences are affirmed.

DENNIS, Justice,

concurring.

Accepting the interpretation of the evidence adopted by the court, I agree that the requirements of Dino were not violated. If the police officers had no opportunity to bring about a conference between the juveniles and their parents or attorneys before the confessions were blurted out, and if the officers engaged in no conduct or omission of conduct which could have induced the confession there could have been no violation of the juvenile’s constitutional rights.

On Application For Rehearing

PER CURIAM.

In our original opinion we stated that the then sixteen year old defendant, Morrow, had not been questioned by the police who arrested him. Officers Moore and Hostet-ter, who arrested Morrow, so testified both at the hearing on the motion to suppress and at the trial. They both testified that Morrow made an entirely unsolicited culpa-tory statement that he had participated in the crime charged.

On application for rehearing, the defendants note that, through clerical inadvertence, the trial transcript did not include the testimony of a third arresting officer, Lt. Humphries of the Slidell police. The record was accordingly supplemented. The testimony of Lt. Humphries does indicate (as the appellant suggests) that Morrow was questioned by the other officers after he had been given his Miranda warnings.

However, this witness, who was driving the car also admitted that his recollection was not clear in all details as to the occurrence some sixteen months earlier. (He had not testified at the earlier hearing on the motion to suppress.) He also stated, “I don’t recall whether or not they [the other officers] made any questions. I don’t recall. I know I asked him about his whereabouts the night before.” Tr. 17, supplemental transcript. The officer also testified, how-' ever, that Morrow’s oral statement was in response to a question, although he did not know whose. Tr. 21.

Insofar as the issue on appeal (whether the juvenile was questioned in the absence of his parents) the testimony above noted is troubling insofar as it is at variance with the testimony of the other two officers that the juvenile spontaneously blurted out an admission that he had participated in the crimes, after he had been arrested and given his Miranda warnings and had at first remained silent. Their testimony, however, is consistent both at the earlier hearing on the motion to suppress and at the trial on the merits, while Lt. Humphries (who was driving the vehicle) admitted that his recollection was not entirely certain as to detail.

We conclude that, under all of the circumstances and evidence reflected by the record, including the officers’ testimony taken at the hearing on the motion to suppress, we were not in error in concluding that the record reflects no questioning of the juvenile Morrow by the arresting officers. The application for rehearing is denied.

APPLICATION FOR REHEARING DENIED.

      . Defendants originally assigned nineteen errors. Assignments of Error Nos. 13 and 14 were specifically abandoned.

      . Two other statements, one of them taped, were discussed in the motion to suppress hearing, but they were not introduced at trial. All objection to the Burge statements was apparently abandoned. Burge’s allegations of error arise from the prejudicial effect of the admissibility of Morrow’s statements.


author: TATE, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Renee S. MORRIS.
    No. 61832.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Rehearing Denied Oct. 5, 1978.

      Alton T. Moran, Director, Office of Public Defender, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., John Sinquefield, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-respondent.
   TATE, Justice.

At a pre-trial hearing, the trial court ruled certain other-crime evidence would be admissible at the trial on the merits of guilt or innocence “to show system, knowledge, and intent.” See La.R.S. 15:445, 446. We granted supervisory writs to review this interlocutory ruling. 356 So.2d 1003 (1977).

(1)

Normally, evidence of extraneous offenses is inadmissible at the trial of the offense charged. Aside from relevancy considerations, in large part this prohibition is based upon the excessively prejudicial effect upon the accused’s constitutional presumption of innocence of the crime for which (alone) the accused is on trial. State v. Prieur, 277 So.2d 126 (La.1973). See also: State v. Ledet, 345 So.2d 474 (La.1977); State v. Moore, 278 So.2d 781 (La.1973); Pugh, Louisiana Evidence Law 30 (1974).

Nevertheless, subject to stringent jurisprudential safeguards to avoid undue prejudice of this nature, extraneous offenses may be admissible for limited purposes as having independent relevance to prove a material fact actually at issue.

Relevantly to the present inquiry, where specific intent is at issue, similar acts by which such intent may be inferred are admissible. La.R.S. 15:445, 446; State v. Medlock, 297 So.2d 190 (La.1974); cf., State v. Clark, 338 So.2d 690 (La.1976). Even so, other-crime evidence may be admissible only where its probative value exceeds its prejudicial effect; and, because of the substantial risk that the extraneous crime may prejudice the constitutional presumption of the accused’s innocence, the state must affirmatively show that such evidence is not merely a subterfuge for depicting the accused’s bad character and that it serves the limited actual purposes for which ostensibly offered. State v. Ledet, 345 So.2d 474 (La. 1977) and jurisprudence therein cited.

To effectuate these purposes, the state is required to give pre-trial notice of its intent to introduce other-crime evidence under La.R.S. 15:445, 446, at which time it must show that the other-crime evidence meets the constitutional, statutory, and jurisprudential guidelines for its admission. State v. Prieur, 277 So.2d 126 (La.1973). The issue presently under review is whether the other-crime evidence which the state intends to introduce meets the criteria set forth by this decision and by the jurisprudence. The trial court held that it did.

(2)

The defendant is charged with the first-degree murder of her son, aged 16 months on August 17, 1977. The crime, a capital offense, is defined as “the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm.” La.R.S. 14:30 (1976).

Alleging that the accused’s son Michael had died as a result of blunt trauma to the head and abdomen, the state served notice of its intent to introduce facts showing similar severe beatings by the accused of two other of her children:

A.

Six years earlier, the defendant allegedly beat her child William, six months, on July 12, 1971 and November 9, 1971, causing multiple bruises of the head and skull fractures. On October 17, 1972, she pleaded guilty to aggravated assault of this minor in Texas. The gravamen of the Texas offense is the use of unlawful violence upon a child with intent to injure him. See Texas Penal Code of 1925, Articles 1138 and 1147 (as amended in 1955) (covering child batteries prior to August 30, 1971), and Article 1148a (effective August 30, 1971, enacted by Act of 1971, 62nd Leg., p. 2809, ch. 911). 2A Vernon’s Annotated Penal Code of the State of Texas (1961; 1972 pocketpart).

B.

Three years earlier than the present offense, the defendant mother had allegedly beaten yet another infant son, John, aged three months, on May 2, 1973, and the child died three days later of head injuries. The offense occurred in Louisiana, and the defendant pleaded guilty to manslaughter. Applied to the facts indicated, the gravamen of that crime was either (a) the intentional killing of the child “in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection,” La.R.S. 14:31(1) (1973) or (b) the unintentional killing of the child in the commission of a battery upon the child, La.R.S. 14:31(2).

(3)

The issue before us is whether, as part of its case in chief, the state may introduce evidence of these similar offenses for the limited permissible purposes of proving acts relevant to show intent, guilty knowledge, or system. La.R.S. 15:445, 446; State v. Prieur, 277 So.2d 126 (La.1973) and succeeding jurisprudence.

The state alleges no other specific reason for admitting the evidence of the prior child-beatings than that they had occurred. Without extended discussion, we note that, then, the permissible purpose apparently relied upon was to prove by these prior beatings, that the accused had beaten the present child with the specific intent to kill him or to inflict great bodily harm upon him.

Stated another way, does the circumstance that twice before the accused had beaten two of her other children, on occasions respectively six and three years prior to the present offense, tend to prove that she had beaten the present child with the specific intent to kill or seriously injure him? And, if so, does the probative value of this other-crime evidence in proving such specific intent outweigh its prejudicial effect, in that the jury may because of the prior incidents (and the defect of character thus exhibited) find such specific intent for the present beating, whatever its circumstance (no matter how light the blow may have been, for example)?

To the extent that other-crime evidence tends to prove an accused is guilty of the present offense simply because he committed the previous crimes, it is inadmissible. To the extent that the other-crime evidence tends to have this effect rather than to afford substantial proof of a fact actually at issue in the present prosecution, its prejudicial effect outweighs its probative value; for example, when the incremental probative value is relatively slight, but the possibility of misuse by the jury is great, the evidence should be excluded.

See: State v. Showers, 359 So.2d 104 (La.1978); State v. Frederick, 340 So.2d 1353 (La.1976); Wigmore on Evidence: Vol. 1, Section 194 (3d ed., 1940); Vol. VI, Section 1904 (Chadbourn rev., 1976); Weinstein on Evidence, Sections 403[3], 404[9], [10] (1977); McCormick on Evidence, Section 190 (2d ed., 1972).

Tested by these standards, we find that, upon the showing made, the other-crime evidence is not admissible, if sought to be introduced by the state in its case in chief.

We entertain doubt, although we do not expressly so hold, that the two previous crimes (the Texas crime of hitting a child with intent to injure him, and the Louisiana crime of either an unintentional killing or else one committed in hot blood under provocation) are truly probative of a specific intent to kill or commit great bodily injury at the time some years later when the offense was committed on the present child. Ultimately, we conclude that, whether or not so probative, its prejudicial effect far outweighs whatever probative value it might have in such respect, especially if the state (as it indicates) intends to go into extensive detail as to the circumstances of the previous offenses.

Decree

Accordingly, for the reasons stated, we reverse the interlocutory ruling of the trial court that the other-crime evidence proffered by the state is admissible in its case in chief. The case is remanded to the district court for further proceedings in accordance with law.

INTERLOCUTORY RULING REVERSED, AND CASE REMANDED FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH LAW.

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

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

The trial judge ruled at a pretrial hearing that the other-crime evidence would be admissible at trial on the merit of guilt or innocence “to show system, knowledge, and intent.” La.R.S. 15:445 and 446. I agree. The statutory provisions clearly provide for the admission of similar acts, independent of the act charged as a crime in the indictment, to show intent. The state has the burden of proving beyond a reasonable doubt that defendant had specific intent to kill or to inflict great bodily harm on her victim child. La.R.S. 14:30 (1976). Hence, I consider that evidence of defendant’s previous convictions for the aggravated assault on one child and manslaughter of another infant child would be admissible to show her intent to kill or to inflict great bodily harm on her victim child injured in this case.

Accordingly, I respectfully dissent.

      . These “Prieur guidelines” are set forth in the cited opinion at 277 So.2d 130. Pertinent to the pre-trial showing, they provide:
      “When the State intends to offer evidence of other criminal offenses under the exceptions outlined in R.S. 15:445 and 446:
      “(1) The State shall within a reasonable time before trial furnish in writing to the defendant a statement of the acts or offenses it intends to offer, describing same with the general particularity required of an indictment or information. No such notice is required as to evidence of offenses which are a part of the res gestae, or convictions used to impeach defendant’s testimony.
      “(2) In the written statement the State shall specify the exception to the general exclusionary rule upon which it relies for the admissibility of the evidence of other acts or offenses.
      “(3) Prerequisite to the admissibility of the evidence is a showing by the State that the evidence of other crimes is not merely repetitive and cumulative, is not a subterfuge for depicting the defendant’s bad character or his propensity for bad behavior, and that it serves the actual purpose for which it is offered.* * *"

      . Different consideration may obtain if the accused affirmatively raises specific issues of fact which the otherwise-inadmissible other-crime evidence becomes relevant to rebut. State v. Banks, 307 So.2d 594 (La. 1975); see State v. Clark, 338 So.2d 690 (La. 1976) (concurring opinion by Dennis, J.). Insofar as not overruled by the subsequent “system” jurisprudence, see e. g. State v. Showers, 359 So.2d 104 (La. 1978), the viability of the holding in State v. Bradford, 259 La. 381, 250 So.2d 375 (1971) may be limited to permitting evidence of prior child-beatings which produce serious injuries, in order to rebut a defense that the child-injuries alleged to have been committed by the accused were accidental in nature or the result of what was intended to be normal and reasonable discipline.

      . A “system” of killing children, such as for insurance purposes, is not a relevant fact at issue; the system exception is not pertinent, if only for this reason. See State v. Showers, 359 So.2d 104 (La. 1978) and jurisprudence cited. See also 2 Wigmore on Evidence, Sections 237, 240, 304 (3d ed. 1940), describing evidence introduced for this purpose as to prove a design or plan. Likewise, the state does not suggest that the evidence should be admissible to rebut an innocent explanation of the beating (see footnote 2) advanced by the accused; the “guilty knowledge” exception is thus not pertinent (assuming it is applicable at all in the state’s case in' chief, see footnote 2). State v. Williams, 353 So.2d 1295 (La.1977); State v. Frederick, 340 So.2d 1353 (La.1976); State v. Slayton, 338 So.2d 694 (La.1976).

      . In expressing this doubt, to some extent we take into consideration that the accused is charged with first-degree murder, La.R.S. 14:30 (1976), a capital crime, involving a deliberateness of specific intent and purpose more serious than that involved in the less serious crimes for which the accused was actually convicted upon her previous offenses.


author: PER CURIAM.

text:
    STATE of Louisiana v. Frederick FRANKLIN, Jr.
    No. 60182.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    Rehearing Denied Oct. 19, 1978.
    Robert Glass, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant Frederick Franklin, Jr., was charged by grand jury indictment with possession of heroin with intent to distribute in violation of La.R.S. 40:966(A)(1). On November 30,1976, after trial before a jury of twelve persons, the defendant was found guilty as charged. Subsequently the trial court sentenced him to serve life imprisonment at hard labor. Following this conviction and sentence, defendant appealed to this Court relying on two assignments of error. This Court found no error, except for a possible error on the motion to suppress which could possibly be eliminated upon another trial of that motion. Thus the Court remanded the case to the district court for a redetermination of whether articles seized from the kitchen were constitutionally admissible, reserving to the defendant the right to appeal from an adverse ruling. State v. Franklin, 353 So.2d 1315 (La.1977). On March 31, 1978, the trial court held an evidentiary hearing pursuant to the remand order. At the conclusion of the hearing, the motion to suppress was again denied. Defendant now appeals from that ruling.

We have reviewed the evidence adduced at the first hearing on the motion to suppress, the trial on the merits, and the second hearing on the motion to suppress, see State v. Schmidt, 359 So.2d 133 (La. 1978); State v. Stewart, 357 So.2d 1111 (La.1978); State v. Dunbar, 356 So.2d 956 (La.1978), and have determined that there was no error in the trial court’s ruling. The evidence supports the trial court’s finding that the state carried its burden of affirmatively showing that the seizure of the various items from the kitchen was constitutionally permissible under the plain view doctrine. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Parker, 355 So.2d 900 (La. 1978); State v. Fearn, 345 So.2d 468 (La. 1977).

Accordingly defendant’s conviction and sentence are affirmed.


text:
    STATE of Louisiana v. Terry L. DENMAN.
    No. 61761.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    Rehearing Denied Oct. 19, 1978.
    Bobby L. Culpepper, Baker, Culpepper & Brunson, Jonesboro, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon H. Whit-ten, Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: PER CURIAM. TATE, J., DIXON, J.,

text:
    STATE of Louisiana v. Ronald BOUZIGARD. CONSOLIDATED WITH STATE of Louisiana v. Mona GUIDRY.
    Nos. 61871, 61872, 61879 and 61880.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    Rehearing Denied Oct. 19, 1978.

      Herbert O’Neill, Chief Indigent Defender, 17th Jud. Dist., Thibodaux, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., Sidney A. Ordoyne, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

SUMMERS, J., believes the questioning by the judge was excessive but does not believe the error warrants reversal.

TATE, J.,

dissents.

The trial court’s extensive interrogation of the accused amounted to a comment upon the evidence and an expression of disbelief in the accused’s credibility in his trial defense. This could not be harmless error, destroying as it did the accused’s principal defense.

DIXON, J.,

concurs.

The trial judge is not prohibited from interrogating witnesses.

TATE and CALOGERO, JJ., would grant a rehearing.


text:
    STATE of Louisiana v. Mack Ervin FORBES.
    No. 61781.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    Rehearing Denied Oct. 19, 1978.
    William D. Hall and Rollin W. Cole, Jr., of Freeman & Hall, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Stephen A. Glassell, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: TATE, J.,

text:
    John L. ROBERTS, Sr. v. Julie Ann ROBERTS.
    No. 62966.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: John L. Roberts, Sr., applying for supervisory writs. Parish of Livingston.

Writ denied.

TATE, J.,

is of the opinion that upon the relator’s written request a preliminary default should be ordered, if no answer is filed, since service was made on the wife. La.C.Civ.P. Arts. 961, 1701. The relator is not, however, entitled to furlough from prison to testify.


text:
    Kenneth J. DUCOTE and Deborah Ducote v. Albert KATZ and Patio Realty, Inc.
    No. 62962.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Kenneth J. Ducote and Deborah Ducote applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 361 So.2d 1320.

Denied. The result is correct.

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


text:
    STATE of Louisiana ex rel. Billy S. MONROE v. Israel M. AUGUSTINE, Judge, Criminal District Court, Section “I”. Parish of Orleans.
    No. 62968.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Billy S. Monroe, applying for writs of mandamus, prohibition, and stay order. Parish or Orleans.

Writ granted. Transfer application to the trial court to act upon.


text:
    Allen J. ST. PIERRE v. GENERAL AMERICAN TRANSPORTATION CORPORATION et al.
    No. 62959.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Allen J. St. Pierre, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 360 So.2d 595.

Writ denied.

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


text:
    Branch M. JORDAN v. BACHE & CO., INCORPORATED. In the Matter of the Arbitration Between BACHE & CO., INCORPORATED and BRANCH M. JORDAN.
    No. 62955.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Branch M. Jordan applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 360 So.2d 603.

Writ denied.

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


text:
    Igor MARGAN v. PRECISION MOTORS, INC., and Alfa Romeo, Inc., New Jersey and Alfa Romeo, Manufacturer.
    No. 62942.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Precision Motors, Inc., Alfa Romeo Manufacturer, and Alfa Romeo, Inc., New Jersey, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 360 So.2d 621.

Denied.

SUMMERS, CALOGERO and MARCUS, JJ., would grant a writ.


text:
    ECONOMY CARPETS MANUFACTURERS & DISTRIBUTORS, INC. v. BETTER BUSINESS BUREAU OF BATON ROUGE AREA, INC., and St. Paul Fire and Marine Insurance Company.
    No. 62824.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Economy Carpets Manufacturers and Distributors, Inc., applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 361 So.2d 234.

Writ denied. The result is correct.

SUMMERS, J., would grant the writ.

DENNIS, J., is of the opinion the writ should be granted.


text:
    STATE of Louisiana ex rel. Sammie ROBINSON v. WARDEN, Louisiana State Penitentiary.
    No. 62961.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Sammie Robinson, applying for writs of certiorari, Parish of West Felicia-na.

Writ granted.

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


text:
    Hiram DEBORE, Individually, and Annie Inez Devore v. HOBART MANUFACTURING COMPANY, Cleveland Manufacturing Company and Cleveland Consolidated, Inc.
    No. 62810.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Hiram and Annie Devore, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides.

Writ granted.

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


text:
    Clarence NEIMANN v. TRAVELERS INSURANCE COMPANY.
    No. 62946.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Clarence Neimann, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Granted.

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


text:
    STATE of Louisiana v. Maurice WELCH and Sandra Smith.
    No. 62907.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: State of Louisiana, through Harry F. Connick, District Attorney, applying for writ of certiorari. Parish of Orleans.

Granted.

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

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Charles R. Ward, Judge of the Criminal District Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 13th day of October, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    STATE of Louisiana v. Donald R. HATCH.
    No. 62890.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: State of Louisiana, through the Honorable Harry F. Connick, District Attorney, applying for writ of certiorari, mandamus and prohibition. Parish of Orleans.

Writ denied.

SUMMERS, J., dissents from denial.


author: SUMMERS, J.,

text:
    STATE of Louisiana ex rel. Darryl R. THOMAS v. Charles R. WARD, Judge, Section “A” Criminal District Court.
    No. 62924.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Darryl R. Thomas, applying for writ of mandamus. Parish of Orleans.

Writ granted. Transcript of Boykinization is ordered sent to relator.

SANDERS, C. J., dissents.

SUMMERS, J.,

dissents from this order. Relator has alleged no particularized need for the transcript, and unless such a showing is made relator is not entitled to the transcript to search through the proceedings to find errors not objected to at time of the plea.


text:
    Frank Michael JACKSON and Frank Jackson v. William W. WATSON, William W. Watson, Jr., Bill Watson Ford, Inc., United States Fidelity & Guaranty Company and Fidelity and Guaranty Insurance Underwriters, Inc.
    No. 62891.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Frank Michael Jackson and Frank J. Jackson, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 360 So.2d 582.

Writ denied.


text:
    John David ATCHISON v. ARCHER-DANIELS-MIDLAND COMPANY.
    No. 62893.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: John David Atchison, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 360 So.2d 599.

Denied.


text:
    James BATTISTE, Jr. v. L. A. FREY AND SONS, INC. James BATTISTE, Jr. v. Louis FREY and Charles Frey.
    No. 62912.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: L. A. Frey & Sons, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 360 So.2d 613.

Denied.


text:
    STATE of Louisiana ex rel. Johnny Lee ROGERS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 62937.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Johnny Lee Rogers, applying for writs of habeas corpus, certiorari, prohibition and mandamus. Parish of Pointe Coupe.

Denied.


text:
    STATE of Louisiana ex rel. Clarence Bill Mc CORD v. Honorable Frank FOIL, Judge, 19th Judicial District Court, etc., et al.
    No. 62898.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Clarence Bill Me Cord, applying for writ of habeas corpus. Parish of East Baton Rouge.

Writ denied. According to the return from Clerk of Court, the transcript is in process of being prepared for appeal. Upon completion, it will be available to relator or his counsel.


text:
    STATE of Louisiana ex rel. Glenn S. PASSMAN v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 62888.
    Supreme Court of Louisiana.
    Sept. 29, 1978.
   In re: Glenn S. Passman, applying for writ of habeas corpus. Parish of St. Tammany.

Denied.


text:
    STATE of Louisiana v. Terry BAYLIS.
    No. 63144.
    Supreme Court of Louisiana.
    Oct. 2, 1978.
   In re: Terry Baylis applying for writs of certiorari, prohibition and mandamus. Parish of Bienville.

Granted in part and denied in part. It is ordered that the bond be reduced to $75,-000.00; action on the application is denied as relator has an adequate remedy by review in the result of conviction.

SUMMERS, J., dissents.


author: ANSTEAD, Judge.

text:
    John Wayne TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 76-2547.
    District Court of Appeal of Florida, Fourth District.
    June 28, 1978.
    Rehearing Denied Oct. 25, 1978.
    Richard L. Jorandby, Public Defender, Marc R. Goldstein and Harvey R. Schneider, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Basil S. Diamond and Charles A. Stampelos, Asst. Attys. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

This is an appeal from a conviction for attempted sexual battery involving the use of force likely to cause serious personal injury. The appellant claims error in the trial court’s refusal to instruct the jury on attempted sexual battery involving the use of force not likely to cause serious personal injury. We affirm.

Turner was charged, tried, and convicted of attempted sexual battery. The victim testified that after being forced into a vehicle and driven to an isolated area near an orange grove, she was knocked to the ground by Turner and her clothing forcibly removed. She was then thrown down an embankment and her head held underwater. Thereafter, her arm was twisted causing it to break and a stick or other object was inserted into her vagina and rectum. Two physicians testified that the victim received serious personal injuries including a permanently disabling injury to the arm. Turner admitted that he and a friend drove the victim to the area of the orange grove, but he denied assaulting the victim in any way. He testified that she disappeared into the orange grove after leaving the vehicle and he and his friend left.

This court has held that sexual battery involving the use of force not likely to cause serious personal injury is a category four lesser included offense of sexual battery involving the use of force likely to cause serious personal injury, under Brown v. State, 206 So.2d 377 (Fla.1968). Wagner v. State, 356 So.2d 867 (Fla. 4th DCA 1978); Smith v. State, 340 So.2d 1216 (Fla. 4th DCA 1976). It is not a necessarily included offense. Hence, an instruction is required on this offense only when supported by the accusatory pleadings and the evidence.

In this case the information charged Turner only with the higher offense, and there was no evidence of the use of force not likely to cause serious personal injury. The undisputed evidence showed force that was not only likely to, but did, cause serious personal injury. Under these circumstances the trial court did not err in refusing to give the instruction requested. Accordingly, the judgment of the trial court is affirmed.

MOORE, J., and SIMONS, STUART M., Associate Judge, concur.

      . § 794.011(3), Florida Statutes (1975).

      . § 794.011(5), Florida Statutes (1975).