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

text:
    Glenda Faye WEST v. Herman Wayne ORTEGO.
    No. 56232.
    Supreme Court of Louisiana.
    Dec. 8, 1975.

      Preston N. Aucoin, Villa Platte, for plaintiff-applicant.
    J. Winston Ardoin, DeVillier, Ardoin & Morrow, Eunice, for defendant-respondent.
   CALOGERO, Justice.

The issue before us in this case is whether workmen’s compensation benefits received by a husband subsequent to dissolution of the community of acquets and gains, and representing post-injury benefits for the periods both before and after dissolution of the community, fall into the previously existent marital community.

We granted writs in this case to clarify the jurisprudence in this area.

The facts of the case are undisputed. Defendant Herman W. Ortego, the husband, sustained a disabling industrial accident on or about June 4, 1974. The accident occurred during the course and scope of his employment with Chapman Drilling Company. On June 14, 1974, about ten days after the accident and prior to receipt of any compensation benefits, the plaintiff-wife, Mrs. Glenda West Ortego, filed suit for separation from bed and board on the grounds of cruel treatment and abandonment. Judgment of separation was rendered in Mrs. Ortego’s favor on June 24, 1974, issue having been joined after defendant answered and reconvened. Later, on September 26, 1974, Mrs. Ortego filed a petition for a temporary restraining order and preliminary injunction, alleging that Mr. Ortego had settled or was about to settle his claim against Chapman Drilling Company and averring that she was entitled to ■ one-half of any such settlement. On December 9, 1974, a preliminary injunction was granted, the effect of which was to declare her entitled to one-half of her husband’s workmen’s compensation benefits but only as to that portion “which [had] accrued prior to the dissolution of the community . . . ,” She was denied relief as to a half interest in the more substantial portion of the prospective compensation settlement, that which is attrib-table to the period of time following dissolution. Mrs. Ortego therefore appealed.

The Third Circuit Court of Appeal affirmed the trial court judgment, and Mrs. Ortego sought writs from this Court, which were granted.

The particular issue presented insofar as it concerns workmen’s compensation benefits is one of first impression. In three earlier cases, however, the courts of this state have been presented the problem of determining the separate or community nature of funds received after dissolution of the community for personal injuries suffered by the husband during the existence of the community regime. In two of those cases the husband’s action for damages arose under Article 2315 of the Louisiana Civil Code. See Talley v. Employers Mutual Liability Ins. Co., 181 So.2d 784 (La.App. 4th Cir. 1965); writ refused, 248 La. 785, 181 So.2d 783 (1966); Alfred v. Alfred, 237 So.2d 94 (La.App. 3rd Cir. 1970), writ granted, 256 La. 847, 239 So.2d 356 (1970) [case not decided by this Court apparently because settled prior to argument]. In the third, the husband’s settlement was under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. Chambers v. Chambers, 259 La. 246, 249 So.2d 896 (1971).

Counsel for Mr. Ortego suggests, alternatively, at least, that we avoid a critical analysis of these cases by holding that, while the husband’s actions for damages in the three cited cases were for offenses or quasi-offenses and were thus perhaps covered by Articles 2334 and 2402 of the Civil Code, Mr. Ortego’s claim in this case, for recovery of workmen’s compensation benefits, is not for an offense or quasi-offense.

Although that argument is not entirely implausible, we are inclined to believe that a workman’s compensation claim is more likely than not founded upon an offense or quasi-offense, just as was the Chambers claim. There, plaintiff’s claim was based upon the Federal Employers Liability Act, which was a forerunner to the state workmen’s compensation statutes in this country, including our own.

The Talley, Alfred, and Chambers cases involved interpretations of Articles 2334 and 2402 of the Louisiana Civil Code. These two articles, which appear in Book III, Title IV of the Code, categorize the property of married persons into either separate or community property. They clearly establish that a wife’s “damages resulting from personal injuries” (Art. 2402), and her “actions for damages resulting from offenses and quasi-offenses” (Art. 2334) are her separate property. The articles, however, are not as generous to the husband relative to such damages and/or actions. Article 2334 provides only that “actions for damages resulting from offenses and quasi-offenses suffered by the husband, living separate and apart from his wife, by reason of fault on her part, sufficient for separation or divorce shall be his separate property.”

The negative implication of the foregoing provision is that a husband’s action for damages, resulting from offenses and quasi-offenses suffered by the husband while still living with his wife or while living apart from her for reasons other than her fault, is community property. Because of this implication and because of the use of the term “actions for damages” in the same provision, the plaintiff-wife argues in this case, as the plaintiff did in Chambers, that the Legislature intended for damages collected after the dissolution of the community by separation or divorce, compensating for losses which include post-dissolution losses to the husband, to be nonetheless community property. For reasons we express hereinafter, we find the argument unconvincing and relator’s position without support.

Louisiana’s community property system, embodying'the community of acquets and gains, exists by operation of law and may only be avoided by express stipulation to the contrary. C.C.Articles 2332, 2399, 2401. While the community is in existence, the husband (and the wife as well) may acquire separate property in only a limited number of ways, including inheritance or donation. Property acquired during marriage in any manner different from those designated is “common” or community property. C.C.Articles 2334, 2401. One of the major considerations behind the community property system is to recognize and reward a wife’s industry and labor (or the husband’s, in the less frequent situation where the wife may be the principal breadwinner) which may only indirectly serve to enhance the community financially. During the existence of the community, therefore, money acquired, the husband’s as well as the wife’s, falls into the community with the attendant advantage to the less productive spouse in the event of dissolution.

The community regime does not exist perpetually, however. It is terminated by death of either spouse, and may be terminated volitionally by a judicial separation of property sought by the wife, Art. 2425 et seq., or by either spouse’s obtaining a judgment of separation from bed and board or a judgment of divorce. Arts. 155, 159. Once the community is terminated, certain property which had been community ceases to be so. Fruits or profits, from the separate property of the husband, or from the separate property of the wife formerly administered by the husband, become once again the separate property of the owner thereof. Earnings by either party likewise become his (or her) separate property following separation, divorce, or death of the spouse. The community ceases to exist as a legal entity, and future income or other enrichments belong alone to the party receiving it. The reason for this is that there is no longer the reciprocal industry, effort, and support which justifies and is the basis for the equitable fifty-fifty system.

Recovery for injury, whether it be by judgment or settlement, or whether it be for an offense, quasi-offense or a work-related accident, frequently involves an element of damages to compensate for future losses. Our judicial system normally demands that an injured party assert all claims for damages at one time, and damages for future losses are estimated and awarded in advance. This procedural requirement does not negate the fact that the injury for which a party is being compensated frequently occasions losses of earnings, medical expenses, and pain and suffering to be suffered on daily, weekly, monthly and/or annual bases. While a husband and wife are living together and the community is still in existence, it is reasonable to designate these damages as community property. However, when the community has been terminated, it is both unreasonable and inequitable to deprive the husband of funds which are to sustain him into the future, or compensate him for future pain, suffering and disability merely because the law has required assertion of 'all such damages as part of a single claim.

With the foregoing principles in mind we turn to a discussion of the jurisprudence as it existed at the time the Court of Appeal handed down its decision in this case favorable to the husband on the narrow issue before it.

The first reported case was Talley v. Employers Mutual Liability Insurance Co., supra in the Fourth Circuit Court of Appeal, in 1965. In very brief treatment of one of many issues in the case, that appellate court divided the award received by the husband, awarding to the community the portion thereof which represented losses which accrued prior to its dissolution, and awarding to the husband as his separate property the portion which represented losses to the husband, i. e., permanent injury and future loss of income, which were projected to accrue after termination of the community regime. This Court denied writs. However, the Court of Appeal’s division of the award was not presented as an assignment of error, for the application was by a defendant insurance company complaining of an adverse finding on liability. Neither the husband nor the wife in Talley sought writs from this Court.

The next case involving the issue was Alfred v. Alfred, supra. The Third Circuit Court of Appeal in that case followed the rationale of Talley and gave the community that share of damages which accrued prior to the date the community of acquets and gains was terminated. This Court granted writs but as already indicated the case was apparently compromised before oral argument in this Court.

The third case above cited was Chambers v. Chambers, supra. The First Circuit Court of Appeal in Chambers had determined, just as in Talley and Alfred, that the community was entitled only to that share of the damages which accrued during its existence and had remanded the case back to the district court for a determination of the various items comprising the undesignated lump sum settlement received by the husband, and for ascertainment of the pre-dissolution and post-dissolution damage portions of the settlement. Writs were granted by this Court upon application of both the husband and wife. What precisely this Court held as a matter of law in Chambers is unclear. As indicated, that lack of clarity prompted the grant of writs in this case.

The principal opinion in Chambers drew two concurrences and two dissents. It seemingly followed the rationale of Talley, Alfred, and Chambers in the Court of Appeal when it asserted that the wife “is not entitled to participate in that portion of the settlement funds that compensate [the husband] for damages accruing after the dissolution of the community regime.” However, that opinion went on to reverse the Court of Appeal and affirm a trial court judgment which had decreed the settlement community and had awarded the wife one-half of the settlement, because the Court found, considering the lap'se of time and other problems incident to reconstructing the elements of the settlement, that remand for the purpose of determining the pre-dis-solution and post-dissolution damage elements would be a vain and useless thing.

The Chambers court issues a per curiam on application for rehearing which prompted a third dissent. That per curiam, reciting the sentiments of the two Justices who had concurred in the original opinion, related that “the majority intended to hold that the time the husband’s cause of action arises, determines the community or separate nature of the cause of action and the community or separate nature of the funds obtained when the suits on the cause of action were settled.”

One of the Justices, dissenting from refusal to grant rehearing and from filing of the per curiam, cautioned that “the per curiam here filed, when read with the majority and dissenting opinions, will clearly indicate the diversity of view of this court, and that the per, curiam is not a majority view.” 249 So.2d at 907. His warning was an accurate forecast.

In this historical, jurisprudential context, we proceed to resolve' the legal issue and decide the case at hand.

Mr. Ortego proposes to settle his workmen’s compensation claim following dissolution of his marriage, the claim having arisen from an accident which occurred ten days before the marital community was terminated. He is due benefits, principally weekly sums which are designed to substitute for earnings which, but for the accident, he would be generating on a continual basis. Only a negligible sum is apparently due him for the period prior to termination of the community.

Absent a clear, unequivocal, statutory dictate to the contrary, and assuming that logic, good sense and commendable social policy, as well as the principles underlying the community property system, are to prevail, post-dissolution compensation falls into the injured husband’s separate estate rather than into the extinct marital community.

Do the applicable articles of the Civil Code, then, clearly and unequivocally dictate that monies received by a husband after dissolution of the community, in settlement of a pre-dissolution accident-related cause of action, fall into the terminated community ?

Focusing upon the money settlement as the property acquired, it is apparent that such money is not acquired by the husband during the marriage. (Art. 2334, Sth paragraph).

A problem arises only because such settlement money is derived from a cause of action which arose during the marriage, and the cause of action, being “the property of the obligee,” is “common property,” or community property.

At least two members of this Court in Chambers felt that money received, even post-dissolution, in settlement of a cause of action which is community property must necessarily, in full, fall into the community.

We do not conclude that this is so, for several reasons.

As already indicated, such a result is not consistent with the underlying principles upon which our community property system is based. Beyond this theoretical argument, however, interpreting the specific provisions of law, we find that the provision most nearly applicable, the fifth paragraph 'or omnibus provision of Art. 2334, was incorporated in our present article 2334 in the year 1825, long before divorce became commonplace and at a time when multitudes of tort claims and statutorily created workman’s compensation claims had not yet been spawned by the industrial revolution of this country. We do not believe that the Legislatures of the State of Louisiana which enacted Articles 2334 and 2402, and their amendments, foresaw or intended the effect of those articles here urged.

Furthermore, nowhere in the articles is it plainly stated or clearly implied that damages received by a husband after termination of the community, to compensate for future wage and other losses, should fall into a dissolved community. In our view such an expression or clear implication, by inference or otherwise, cannot be gleaned from the fourth paragraph of Art. 2334, which while directing that certain actions for damages resulting from offenses and quasi-offenses suffered by the husband are the husband’s separate property, with the inference that other actions are community, does not address itself to monies acquired after termination of the marital community, nor to the hiatus in the law with which we are here concerned.

Somewhat better than the foregoing argument, but sjjill not convincing, is the wife’s finding support in the omnibus provision of Article 233 which by direct implication designates as community the husband’s personal injury action for damages generally. However, this argument succeeds only if we must necessarily conclude that monies derived from settlement of the cause of action, even after dissolution of the community, are identical with or inherently the same as a cause of action. Logic does not compel this interpretation, for equally as plausible is the conclusion that the money acquired after dissolution of the community (identified as separate property of the husband by virtue of the time of its. receipt) is a species of thing different from a cause of action.

More defensible than either of the foregoing, we believe, is this view of the problem : that there is no positive law resolving the issue before us. Resort to equity, i. e., to natural law and reason, is therefore in order.

Applying the foregoing principles, we conclude that where a husband’s settlement monies, acquired after dissolution of the community, but based upon a pre-dissolution, accident-related cause of action, compensate for both pre-dissolution and post-dissolution losses, that portion of the settlement which compensates for post-dissolution losses falls into the separate estate of the husband.

Ascertaining the post-dissolution portion of the settlement in the case at hand is quite simple in view of the fact that the bulk of the prospective compensation settlement represents weekly fixed sums. Ascertaining the respective portions of a non-workmen’s compensation personal injury settlement (or jury verdict, for that matter), while not quite as simple, is nonetheless possible.

To the extent that Chambers v. Chambers, supra, is in conflict with this opinion, it is overruled.

We are not unmindful that a logical extension of the rationale here employed might require that an entire post-dissolution settlement be classed as the separate property of the husband (because it was fully acquired after dissolution). And, focusing entirely upon the underlying community property principles, one might conclude, for reasons just as compelling as those in Chambers and in this case, that compensation in part for post-dissolution losses received pre-dissolution, are partially the separate property of the husband. Suffice it to say that the latter hypothet is not presented by the facts in this case, and the former, while factually present here, is not procedurally before us.

For the reasons assigned the judgment of the district court and the Court of Appeal are affirmed.

SUMMERS, J., concurs and assigns reasons.

DIXON, J., dissents with reasons.

MARCUS, J., dissents and assigns reasons.

SUMMERS, Justice,

(concurring).

In my view workmen’s compensation payments, or settlements, are substitute “earnings”, awarded because the recipient has been disabled. These awards are not damages in the true sense, and are not recovered as such because of the fault of the employer. They are substitutes for earnings, “compensation” which the State requires an employer to pay on account of an industrial accident to enable the employee to survive and not become a public charge. Therefore, these compensation awards, when paid weekly, fall into the community during its existence. When the community is dissolved these weekly “earnings” paid thereafter belong to the husband’s separate estate.

A lump sum settlement does not alter the result. When the settlement is made after dissolution of the marriage, an accounting is due to the wife for that portion of the settlement attributable to the time when the community of acquets and gains existed. That portion attributable to the post marital period belongs to the husband.

I cannot subscribe to those expressions in the opinion relating to “damages”,' for I find none involved here and consider those statements to be dicta.

I, therefore, concur.

DIXON, Justice

(dissenting).

I respectfully dissent.

This is one of the cases in which we should feel bound to permit the legislature to change the law.

Simply because of a questionable sense of fairness, the majority now holds that property and rights acquired during the existence of the marriage do not necessarily fall into the community regime.

A cause of action is property. Its date of acquisition can be determined. There is no legislative exception which would permit its division into part community and part separate property.

Chambers v. Chambers, 259 La. 246, 249 So.2d 896 (1971), deserves criticism. Nevertheless,- the per curiam adopted by a majority of this court after due deliberation made it clear that a majority of the members of this court understood the law to be that the time of acquisition of the husband’s cause of action determines the community or separate nature of that cause. The majority thought the law should be changed because “justice required it.” There is no more compelling 'reason to treat this kind of community property any different from other kinds of community property which are capable of and destined to produce income and wealth after the dissolution of the community.

MARCUS, Justice

(dissenting).

In my view, a husband’s action for damages resulting from offenses or quasi-offenses occurring during the existence of the community is common property unless he has suffered the injuries while living separate and apart from his wife under circumstances entitling him to separation or divorce from her by reason of her fault. On the other hand, actions for damages for personal injuries to the wife occurring during the community form part of her separate patrimony. Articles 2334 and 2402 of the Civil Code clearly dictate this conclusion. Article 2334 provides in pertinent part:

. . . . actions for damages resulting from offenses and quasi offenses and the property purchased with all funds thus derived, are her separate property.
Actions for damages resulting from offenses and quasi offenses suffered by the husband, living separate and apart from his wife, by reason of fault on her part, sufficient for separation or divorce shall be his separate property.
Common property is that which is acquired by the husband and wife during marriage, in any manner different from that above declared.

(Emphasis added.) Article 2402 provides in pertinent part :

. . . . But damages resulting from personal injuries to the wife shall not form part of this community, but shall always be and remain the separate property of the wife and recoverable by herself alone ....

Accordingly, I respectfully dissent from the majority opinion which holds otherwise.

      . The June 24, 1974 judgment of separation terminated the community as of June 14, 1974, the date the separation suit was filed. La.C.C. Art. 155.

      . We assume the compensation benefits which accrued and/or are to accrue after June 14, 1974, to be more substantial than those accruing between. June 4 and June 14. However, the record nowhere indicates the extent of the claim, or the amount thereof, nor even that a settlement has been agreed upon.

        . West v. Ortego, 309 So.2d 883 (La.App. 3rd Cir. 1975).

      . 313 So.2d 600 (La.1975).

      . See Art. 2292 and Articles 2315-2334 La. C.C.

      . Malone, Louisiana Workmen’s Compensation Law and Practice, § 12.

      . Article 2334 provides :
      “The property of married persons is divided into separate and common property.
      Separate property is that which either party brings into the marriage, or acquires during the marriage with separate funds, or by inheritance, or by donation made to him or her particularly.
      The earnings of the wife when living separate and apart from her husband although not separated by judgment of court, her earnings when carrying on a business, trade, occupation or industry separate from her husband, actions for damages resulting from offenses and quasi offenses and the property purchased with all funds thus derived, are her separate property.

        Actions for damages resulting from offenses and quasi offenses suffered by the husband, living separate and apart from his wife, by reason of fault on her part, sufficient for separation or divorce shall be his separate property.

        Common property is that which is acquired by, the husband and wife during marriage, in any manner different from that above declared. But when the title to community property stands in the name of the wife, it cannot be mortgaged or sold by the husband without her written authority or consent.
      Where the title to immovable property stands in the names of both the husband and wife, it may not be leased, mortgaged or sold by the husband without the wife’s written authority or consent where she has made a declaration by authentic act that her authority and consent are required for such lease, sale or mortgage and has filed such declaration in the mortgage and conveyance records of the parish in which the property is situated.” (As amended Acts 1962, No. 353, § 1) (Emphasis provided)

      .Art. 2402 provides:
      “This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor , of both husband and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase. But damages resulting from personal injuries to the wife shall not form part of this community, hut shall always he and remain the separate property of the wife and recoverable hy herself alone; ‘provided where the injuries sustained by the wife result in her death, the right to recover damages shall be as now provided for by existing laws.’ ” (As amended by Acts 1902, No. 68) (Emphasis provided)

      . A wife may, of course, preserve the fruits of her separate property as separate hy fulfilling the requirements of Article 2386.

      . The judge who wrote the majority opinion in the instant case in the Court of Appeal stated: “We opine from the foregoing, however, that the holding intended in Chambei-s, by a majority of the Court, is not entirely clear from a reading of the opinion.” A second judge of that Court of Appeal concurred in the result “having doubts as to the precise meaning of Chambers v. Chambers.” Legal commentaries following Chambers indicate that confusion was created by that decision. See Chambers v. Chambers: An exercise in Confusion, 1 Tul. Civil Law Forum 1 (1973) ; Pascal, Matrimonial Regimes, Work of Appellate Courts — 1970, 1971, 32 La.L.Rev. 219 (1972); 46 Tul.L.R. 836 (1972); 31 La.L.Rev. 425 (1971).

      . Art. 426, C.C.P.

      . O.C. art. 2334 (5th paragraph) : “Common property is that which is acquired by the husband and wife during marriage, in any manner different from that above declared.”

      . “Actions for damages resulting from offenses and quasi offenses suffered by the husband, living separate and apart from his wife, by reason of fault on her part, sufficient for separation or divorce shall be his separate property." This provision was added to Art. 2334 by an amendment to the article in the year 1920.

      . See the underscored portion of the fifth paragraph of Art. 2334 contained in footnote 7, supra.

      . “Art. 21. Absence of express law, court’s duty to decide equitably.
      “In all civil matters, where there is no express law, the judge is bound to proceed and decide according to equity. To decide equitably, an appeal is to be made to natural law and reason, or received usages, where positive law is silent.”

      . But note the contrary view expressed in the principal dissent in Chambers, at 249 So.2d 906.
      “There is of course, little question as to her right under state law to share in damages attributable to loss prior to the divorce; those damages fall into the community by virtue of Civil Code articles 2334, 2402.”

      . The husband did not appeal from that part of the trial court judgment which allowed his wife one-half of the pre-dissolution benefits.


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Arthur YOUNGBLOOD.
    No. 56755.
    Supreme Court of Louisiana.
    Dec. 8, 1975.

      Tilden H. Greenbaum, III, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Arthur Youngblood was convicted of the December 23, 1974 armed robbery at a Tenneco Oil Station and Mini-Mart in New Orleans. He was sentenced to serve thirty-five years in the custody of the Director of the Department of Corrections. Defendant relies upon two assignments of error in this appeal.

In his first assignment, defendant contends that the trial court erred in allowing state witnesses to testify, over a defense objection made at the close of the state’s opening statement, about a photographic identification of the defendant. His second assignment denotes as error the court’s ruling denying his motion for a new trial, the motion being based upon the same alleged error assigned as No. 1. In support of his contention that the two assignments have merit, defendant argues that the state was in effect permitted to introduce evidence of his bad character even though he had not placed his character in issue. He cites La.R.S. 15:481, State v. Rives, 193 La. 186, 190 So. 374 (1939) and State v. McBeth, 167 La. 324, 119 So. 65 (1928).

We do not find that the effect of the court’s ruling, allowing the victim to testify that his initial identification of the defendant was occasioned by a review of photographs furnished him by the police, was to permit the state to introduce evidence of the defendant’s bad character. No inference that an accused is a bad person can be drawn simply from the fact that the police had, or were able to procure, his photograph. It was not erroneous for such testimony to be elicited from the witness, for reference to the photographic identification constituted an “important link in the chain of evidence, without which there would have been a gap.” See State v. Harris, 258 La. 720, 247 So.2d 847 (1971).

In brief, defense counsel argues further that “the district attorney’s state-merit was an impermissible reference to the defendant’s prior record.” He cites in support of this contention our recent decision in State v. Price, 325 So.2d 780 (La.1975), on the docket of this Court, pending on rehearing. In State v. Price we found that a prosecutor’s use of the term “mug-shot” before the jury, and under circumstances which suggested that the “mug-shot” or photograph was made before the commission of the offense for which the defendant was on trial, was reversible error, for we concluded that such was a prejudicial remark by the prosecutor, an indirect reference to another crime committed or alleged to have been committed by the defendant. Defense counsel in that case had moved for a mistrial on the basis of Article 770(2) of the Code of Criminal Procedure, and we held that a mistrial was mandated by that article.

In the case at hand there was no objection to any statement of the prosecutor. Furthermore, even if there were before us, as in Price, a comment by the district attorney and a defense request for a mistrial, such comment about the “photograph” would not in our view be a direct or indirect reference to another crime committed or alleged to have been committed by. the defendant.

. We find no merit in defendant’s assignments of error.

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

SANDERS, C. J., concurs in the result only.

      . La.R.S. 15:481 provides: “Proof of bad character by state

      “The state is permitted to introduce testimony of the bad character of the accused only in rebuttal of the evidence introduced by him to show good character.”

      . Art. 770. Prejudicial remarks; basis of mistrial
      “Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:

      “(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;...."

      . Defense counsel had simply at the conclusion of the state’s opening statement interposed an objection to the promised introduction into evidence of testimony of the victim that he had been shown photographs by the police in connection with his initial identification of the defendant.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Mason D. PICKETT et al.
    No. 56754.
    Supreme Court of Louisiana.
    Dec. 8, 1975.

      Tilden H. Greenbaum, III, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendants were charged with armed robbery, a violation of R.S. 14:64, and tried on July 10, 1974. Roger Jones was found guilty of simple robbery and sentenced to five years at hard labor; Frank Preston and Mason Pickett were found guilty as charged and each was sentenced to thirty years at hard labor. From this conviction defendants appeal, perfecting one bill of exceptions (two are briefed to this court).

On the morning of December 10, 1973 two men entered Fisher’s Furniture Company, Inc. in New Orleans. When they entered, one of the men was armed with a knife. After entering, the other seized a .22 caliber rifle which was hidden in a corner of the building and owned by one of the victims, Alvin Fisher. The robbers ordered Fisher to open his safe and give them the money inside. One of them took money hidden in a desk. At a ■ pre-trial line-up and at trial, Fisher and Mrs. Alma Diaz, the other victim, identified Pickett and Preston as the two who entered the store and Jones as the person who drove the getaway car. They further testified that Jones had been fired from his job at the furniture store “about a month” prior to the robbery.

Acting on Alvin Fisher’s photographic identification of Frank Preston, officers Dupas and Roth of the New Orleans Police Department endeavored to locate Preston’s residence. During this effort, they noticed Jones, whom they recognized as being a former employee of Fisher’s Furniture Company, and Pickett coming out of a fish market. Though neither of the policemen knew Pickett, each testified he fit the general description furnished by the victims.

The officers approached Jones and Pickett asking them, “what they were doing in a fish market?” Jones responded that they were going fishing and were shopping for shrimp; he pointed to a car parked on the street nearby from which fishing poles were protruding. Officer Roth walked over to the car, looked in, saw the fishing poles, and saw the butt of either a rifle or a shotgun partially covered by a jacket on the back seat. When he said to Officer Dupas, “look at this,” Jones interjected, “we might do some hunting too.” The policemen knew a rifle had been taken and used during the robbery. Dupas, who had checked Jones’ record, realized Jones was a convicted felon and mentioned to Roth that he (Jones) should not be in possession of a firearm. Dupas naturally reached into the back seat to remove the jacket and discovered a .410 shotgun and a .22 caliber rifle equipped with a white scope. Dupas telephoned Alvin Fisher to learn whether the .22 calber rifle taken during the robbery had been equipped with such a scope. Fisher informed him that it had.

The officers then placed Jones and Pickett under arrest. While the suspects were being handcuffed, Frank Preston arrived at the scene and was arrested.

In the only bill of exceptions appearing in the record before us, defendants contend that the trial court erred in allowing the State to cross-examine Pickett as to his prior relationship with Jones. The questions and objection are as follows:

“Q. How long have you known Rogers Jones?
“A. All my life.
“Q. What type of relationship have you had, if any, with Rogers Jones?
“BY MR. KENNER:
“That’s irrelevant to the issue.
“BY THE COURT:
“I can’t agree, and I overrule the objection.
“BY MR. KENNER:
“I’ll reserve a bill of exceptions, making a part thereof, the District Attorney’s question, and the Court’s ruling, as to Jones.
“EXAMINATION BY MR. SIMNO :
“Q. What type of relationship have you had over these years ?
“A. Friends.
“Q. Were you working together?
“A. Yes.
“Q. On this particular day?
“A. Yes.”
Relevance is defined by R.S. 15:441:
“Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.
“Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.”

The determination of relevancy is a matter for the discretion of the trial judge. State v. Ackal, 290 So.2d 882 (La.1974); State v. McAllister, 285 So.2d 197 (La.1973); State v. Pierre, 261 La. 42, 259 So.2d 6 (1972).

The victims testified that they kept a .22 caliber rifle hidden in their office. They testified that though the rifle was completely hidden behind a box, the robbers went directly to it without hesitation.

The victims testified that they kept extra cash in the bottom drawer of a six drawer desk and, though they made no indication that there was money in this drawer, the robbers went directly to it without opening the other drawers.

The victims testified that Jones was an ex-employee of the furniture store and that he was the driver of the getaway car.

Hence the relationship between Pickett and Jones was relevant. Because Jones was a former employee of the furniture store and was identified as having participated in the crime, the jury could infer from the previous relationship that Jones could have informed Pickett and Preston of the location of the rifle and extra cash.

There is no merit in Bill of Exceptions No. 1.

In brief to this court, defendants contend that the rifle introduced at trial and identified as that taken during the robbery was the product of an unlawful search and seizure.

However, it appears that no formal bill of exceptions was perfected. At the time of trial, C.Cr.P. 841 and 844 provided:

“An irregularity or error in the proceedings cannot be availed of after verdict unless it objected to at the time of its occurrence and a bill of exceptions is reserved to the adverse ruling of the court on such objection. Failure to reserve a bill of exceptions at the time of an adverse ruling of the court operates as-a waiver of the objection and as an acquiescence in the irregularity or ruling.” C.Cr.P. 841.
“A. The appellate court shall consider only formal bills of exceptions which have been signed by the trial judge in conformity with Article 845. In a case where the death sentence has been imposed, the appellate court, to promote the ends of justice, may consider bills that have not been timely signed by the trial judge.” C.Cr.P. 844.

According to the settled jurisprudence interpreting these articles, evidence is properly before this court on review only if contained in a bill of exceptions based upon a contemporaneous objection. State v. Barnes, 257 La. 1017, 245 So.2d 159 (1971); State v. Callihan, 257 La. 298, 242 So.2d 521 (1970); State v. Watson, 247 La. 102, 170 So.2d 107 (1964).

We have nonetheless considered defendants’ contentions and find them without merit.

The convictions and sentences are affirmed.

      . Articles 841 and 844 were amended by Act 207 of 1974, effective July 31,1974.


author: SUMMERS, Justice. CALOGERO, Justice BARHAM, Justice TATE, Justice. TATE, Justice

text:
    STATE of Louisiana v. Charles Spurgen BRYANT, III.
    No. 55904.
    Supreme Court of Louisiana.
    July 25, 1975.
    On Rehearing Jan. 1, 1976.

      Thos. W. Davenport, Jr., Davenport, Files & Kelly, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Defendant, Charles Spurgen Bryant, was indicted for the crime of aggravated rape. After a trial by jury, he was found guilty as charged on June 5, 1974. On June 27, 1974 he was sentenced to death. On this appeal eight assignments of error are relied upon for reversal of his conviction and sentence.

Errors 1 and 5

The trial judge denied a motion to suppress evidence consisting of a hunting knife, its sheath and a .22 caliber pistol used in the crime. Later these objects were introduced at the trial over a defense objection.

An investigation was under way by the Ouachita Parish Sheriff’s office and City Officers of Monroe regarding a report that late in the evening of December 18, 1973 a coed at Northéast Louisiana University had been forcibly raped. In the course of the investigation it was learned on December 19, 1973 that defendant was incarcerated in the parish jail, having been arrested by the State Police for a traffic violation. When he was booked on the traffic charge earlier, defendant had the knife in question on his person, which he surrendered to the jailer. The knife was then inventoried and placed in a “property bag” for safekeeping until the time when it was to be returned to defendant.

Also, when he was arrested, with his consent, his automobile was towed to a local service station for storage. The unlocked glove compartment of the car then contained the pistol used in the crime.

Copes, whose service station was on the State Police list for towing service, testified that the State Police requested that he tow the car in to his place of business for safekeeping. For his own protection, because he was responsible for the car and its contents, and on his own initiative, he searched the car for valuables which could be stolen while the vehicle was impounded. In doing so he found the gun in the unlocked glove compartment, locked it in his office and informed the State Police. Until Deputy Strueben of the sheriff’s office called the next day, Copes had no contact with the sheriff’s office. Strueben testified that when defendant told them where the car was, he went to the service station to make sure it was there so that he could obtain a search warrant. As he walked up, Copes came out and handed him the gun. He did not ask Copes to get the gun out of the car, in fact, he never saw the car.

Defendant contends both seizures were made without a warrant and without his permission or consent. The argument is that the searches were too remote in time to be incidental to his traffic arrest. He asserts that loss of possession of his property because of his arrest did not strip him of the constitutional protection against unreasonable search and seizure. Under the circumstances there was no likelihood that the knife and gun would be lost or destroyed and, according to defendant, there was ample time to obtain a warrant.

The State contends that the search of the property bag was a reasonable routine inventory . search and the fruit of the search was clearly admissible. As to the car, the service station owner, on his own initiative, discovered and removed the pistol for safekeeping and then turned it over to a deputy. There was, therefore, no governmental action to which the protection of the Fourth Amendment would extend.

After talking with the defendant, who freely admitted the crime and told them where the weapons were, the Sheriff’s officers obtained the knife from the jailer and the gun from the owner of the service station where the car was in storage.

This is the first question: Does the taking of the knife from the property bag in the jailer’s custody constitute an unreasonable search and seizure ? Routine police procedure for safekeeping of valuables cannot realistically or logically be regarded as a search, for it involves no intention or purpose to locate evidence of a crime. When the knife was taken into custody, defendant had only been arrested for a traffic violation and he was not under suspicion for aggravated rape. Stowing the knife for safekeeping, then, was neither a search nor a seizure in the sense that evidence of a crime was involved.

United States v. Blackburn, 389 F.2d 93 (6th Cir. 1968).

“A search implies an examination of one’s premises or person with a view to the discovery of contraband or evidence of guilt to be used in prosecution of a criminal action. The term implies exploratory investigation or quest.” Haerr v. United States, 240 F.2d 533 (5th Cir.1957), approved in United States v. Blackburn, supra.

It is standard police procedure for the police to store physical objects found in the possession of persons they have taken into custody. “Custody must of necessity be asserted initially over whatever the arrested party has in his possession at the time of the apprehension.” Charles v. United States, 278 F.2d 386 (9th Cir.1960). “Search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment.” United States v. Robinson, 414 U. S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Since it was permissible to search defendant at the time of his arrest, objects impounded by law enforcement officials at the time of his arrest are thereafter sub ject to search and seizure while impounded. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). They had a right to examine him at the time of his arrest, and if the examination produced evidence of other crimes than the offense for which he was arrested he is without a right to complain. His rights were not violated. United States v. Gardner, 480 F.2d 929 (10th Cir. 1973), cert. denied, 414 U.S. 977, 94 S.Ct. 297, 38 L. Ed.2d 220; Evalt v. United States, 382 F. 2d 424 (9th Cir. 1967); Baskerville v. United States, 227 F.2d 454 (10th Cir. 1955); United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974); United States, 227 F.2d 454 (10th Cir. (5th Cir. 1970), cert. denied, 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331, reh. denied, 402 U.S. 966, 91 S.Ct. 1635, 29 L.Ed.2d 131; Cotton v. United States, 371 F.2d 385 (9th Cir. 1967).

Since defendant had previously-been lawfully deprived of the possession of the knife, and the custody and control of that object was legitimately under the dominion of the police, it was not an unreasonable search and seizure for the police to use it as evidence of another crime.

Next, was the seizure of the pistol, for which no search was necessary, within constitutionally permissible standards of reasonableness? It is, of course, state action which is the basic factor in this consideration, for a search by a private person does not come within the ambit of the Fourth Amendment’s protection; that protection applies to governmental action. It was intended as a restraint upon the activities of sovereign authority, and not a limitation upon other than governmental agencies. With that in mind, the question is does the action of the service station operator constitute state action. Did he act as an agent of the state in the inventory search he conducted of defendant’s car?

Copes testified that he conducted the search for his own protection against liability which would arise if it were claimed that articles in the car were missing while it was stored under his care. The search was not made at the request of the police or on orders from them. And the deputy to whom he handed the gun the moment he arrived did not search the car. Copes’ actions cannot be attributed to law enforcement officials merely because his business was listed, like others, to be called upon in its proper turn to perform the service of towing cars to a place of safety.

This search for the pistol, therefore, was conducted by a private individual, not law enforcement officials. There was, therefore, no state action reprobated by the constitution. Hence these facts do not support the motion to suppress. La.Code Crim. Proc. art. 703. It should be noted, moreover, that in his confession and during the trial, defendant freely admitted using both weapons to perpetrate this rape.

This assignment of error has no merit.

Errors 2 and 4

Based upon a defense motion to suppress inculpatory statements and confessions obtained by sheriff’s deputies, a hearing was held at which the motion was denied.

Defendant asserts he was denied counsel and at first declined to make the statements claiming his right against self-incrimination.

At the hearing on this motion it was shown that defendant gave three detailed recorded confessions after having signed a waiver of his rights prior to each. At first defendant talked freely about his crime; however, when the police attempted to record his confession, he refused to allow it to be taped, stating that he feared it would be played in public, or his wife would hear it. All the while, however, he had no objection to an oral confession which was not recorded, indicating that he would not mind writing the confession. Finally, defendant contends, after he was assured that it would not be played in public, he repeated his confession so that it could be recorded.

Although admitting that he knew his confessions would be used against him, he contends that he would not have made the recorded confession if he had known it would be played in the courtroom. He argues that he was assured it would only be played in chambers for his lawyer, the sheriff and the district attorney. The deputies responsible for obtaining the confession testified they did not promise him it would not be played in court.

As a matter of fact, the recorded confession was not offered into evidence and the recordings were not played to the jury. The State relied solely on the testimony of the deputies to whom defendant orally related his actions and his confession. With respect to these oral confessions, no misrepresentations were made by the sheriff’s deputies to induce them, and they were freely and voluntarily made.

This assignment has no merit.

Errors 3 and 6

Defendant contends that the trial judge erred when he refused to suppress the lineup identification and when he allowed testimony concerning this identification at the trial. When the victims were told a suspect was in jail in custody, the defense contends, the lineup with five other inmates was unduly suggestive because the other participants were wearing variations of street clothes (sport shirts, T-shirts, jeans, etc.) whereas defendant was wearing a jumpsuit bearing the stamp “Ouachita Parish Jail” over the left front breast pocket. This marking on his clothes, defendant argues, together with the fact that the victim had been advised that the suspect was in jail, suggested to the victim that defendant was the person involved in the crime.

The jumpsuit worn by defendant was the type commonly worn on the streets. There was nothing distinctive about this garb which would set the wearer apart as a person in custody. Furthermore, the stamp on the pocket was not visible to the victims, being obscured by a paper card pinned over it. This card bore defendant’s lineup number, and was identical to cards similarly placed on the other participants in the lineup.

A view of the photograph of the lineup is convincing. All of the participants were similar in appearance. Most importantly, however, is the fact that the victim testified that she recognized defendant immediately and paid little attention to his clothes or the other participants, a fact which is easily understood when it is known that she was in close proximity to defendant for approximately five hours on the night of the offense.

Error 7

This assignment of error must be considered in light of the fact that none of the recorded inculpatory statements made by the defendant were introduced into evidence or played to the jury. The transcript does make clear, however, that the existence of these recorded confessions and the failure of the prosecution to introduce them into evidence was established by the defense. It was a defense tactic obviously employed with the expectation that this omission on the part of the prosecution would give rise to the inference that the recordings would exculpate the defendant. In furtherance of this notion defendant called a deputy clerk and introduced a certified copy of the minutes showing that his motion to suppress the recordings had been overruled. He also called the deputy sheriff who obtained the confession. This officer testified to the existence of the tapes and their length. Twice, during this stage of the trial, the prosecutor, in the presence of the jury, stated that the State had no objection to the tapes being played and offered to join with defendant in introducing them; this defense counsel declined.

During his closing argument, the State’s attorney said:

“That is substantially what we have. The defense presented, I believe, two witnesses. They indicated that this defendant had made statements that were recorded and defense counsel chose not to play those statements but — apparently they were available. The witnesses testified both in their — on the defense’s side of the case and the state’s side of the case these statements were more or less the same thing he had told them orally. In fact they were not more or less, they were the same thing. He didn’t vary his story on any significant point from the recorded statement to the oral statement. It was the same thing;

When the closing argument was over, defense counsel, asserting that he did not wish to interrupt the State’s closing argument, requested that the trial judge, instruct the jury that the defendant was not required to introduce the recorded statements and that the reference in the closing argument of the State’s attorney to defendant’s failure to introduce the recorded statement was objectionable and should be disregarded.

The trial judge found that the objection was not timely and should have been entered when the argument became objectionable in the defense’s judgment. He, moreover, refused to admonish the jury as requested, finding that the statement of the State’s attorney was not a reference to defendant’s failure to testify but, instead, was a comment on facts deliberately brought out by the defense itself. In addition, the trial judge was of the opinion that the subject was covered in the instructions on burden of proof which he would give in his general charge.

The ruling of the trial judge was correct under these facts and circumstances. To be objectionable a remark by the prosecutor in closing argument that the defendant failed to testify must be direct and the inference plain that the remark was designed to bring the jury’s attention to such failure. State v. Howard, 262 La. 270, 263 So.2d 32 (1972). In the case at bar, the remarks objected to were a comment on a deliberate defense tactic to bring before the jury evidence that the State failed to introduce recorded confessions. It was an effort to obtain the benefit of the inference that the State’s failure to introduce the recording arose from the fact that they would exculpate defendant. Under the circumstances, the comment was oh the evidence and permissible. State v. Johnson, 151 La. 625, 92 So.2d 139 (1922). There is, therefore, no merit to this assignment.

Error 8

The error complained of here arises out of the refusal of the trial judge to grant a new trial upon the ground that “the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.” La. Code Crim.Proc. art. 851(5).

To support this contention, on the hearing on the motion the defendant testified that his court appointed attorney had advised him that the maximum penalty on the aggravated rape charge would be life imprisonment, and that he was not advised that the death penalty could be imposed in the case until shortly prior to the closing arguments and the judge’s charge to the jury. At this time defense counsel advised him that he was “not convinced that death was the punishment.” He advised the defendant that in his opinion the death penalty did not apply, but he would be sentenced to death by the trial judge if convicted, for the trial judge was of the opinion that the death penalty was mandatory if the verdict was guilty.

On voir dire examination, the State’s attorney advised two prospective jurors that the death penalty was prescribed by law but actually it was no longer imposed because of a decision of the United States Supreme Court which did away with the death penalty, and if defendant were found guilty he would be sentenced to life imprisonment. No defense objection was entered to this advice.

Defense counsel also testified that plea bargaining was in progress prior to and during the trial in which the State offered to accept a plea of attempted aggravated rape. In the face of advice that a death penalty was mandatory if a guilty verdict was returned and that a plea bargain was available, this exchange took place between defendant and the State’s attorney.

“Q. So actually you were discussing with Mr. Davenport (defense counsel) the penalty that might be imposed was death if convicted, at that point as far as you knew any negotiations for plea bargaining was not over at that point. Is that right ? (parentheses added.)
“A. Not as far as I knew but it had already gone so far that a plea bargain at that stage of the game may have been more detrimental to the case that it would have done good.
“Q. You mean you felt you might be acquitted and therefore a plea bargain wouldn’t be—
“A. —Well, I felt like I’d rather take my chances with twelve people after that kind of evidence than I would have been just waiting for —to say I'm guilty, you know, and let the judge decide it.
“Q. But you did that knowing the consequences didn’t you ?
“A. Well, if—
“Q. Not knowing the consquences but knowing the risk that you—
“A. —Yes, sir.”

During voir dire examination of the prospective jurors, one who was selected stated that he could serve in the case “As long as it is not the death penalty. I do not believe in capital punishment.” He was accepted by the State without objection and served at the trial. His presence on the jury may have influenced the defendant’s judgment. However, the verdict as finally rendered was unanimous.

In addition to the explicit refusal on defendant’s part to accept the proffered plea bargain and his election to leave the decision of this case to the jury with a full awareness of the risk involved, other circumstances support the trial judge’s denial of the motion for a new trial.

If this misunderstanding was indeed prejudicial and fatal to a valid prosecution, no motion for a mistrial on the ground of a legal defect in the proceedings was availed of when it was ascertained that the trial judge would instruct the jury that the death penalty was mandatory in the event of a guilty verdict. La.Code Crim.Proc. art. 775(3).

During his argument defense counsel clarified the question for the jury when he said:

“If you had been led to believe that it is punishable by life imprisonment you are mistaken. The judge will instruct you that it is punishable by death. If you find this man guilty of aggravated rape you have sentenced him or the judge will have to sentence him, no alternative, to the death penalty, death executed at the penitentiary in Angola by electrocution.”

In his charge to the jury the trial judge instructed the jury, in accordance with Article 42 of the Criminal Code, that “Whoever commits the crime of aggravated rape shall be punished by death.”

Both the victim and her companion who was present during almost five hours, while the offense was being perpetrated, made a positive identification of the defendant at a lineup within 48 hours of the offense. Before the lineup identification, they were able to assist in the preparation of a composite picture of him. Both positively identified him in court. The trial judge stated categorically in his per curiam that he was convinced from the evidence that the accused was guilty of the crime of aggravated rape. In his opinion the verdict was returned by fair and impartial jurors, and did not result from prejudice or injustice. In his view the evidence of guilt was overwhelming and the defendant was an intelligent individual whose election to take the case to the jury was made with full knowledge that capital punishment could be imposed.

From the record before us, it is clear that the facts are not disputed. At no time during- the investigatory phase of the case did defendant deny the facts. He freely disclosed what happened. Defendant’s confessions and the victim’s version of what occurred, according to the testimony of the victim and her companion, were almost identical on all the salient details.

In neither brief nor argument has the defense pointed out wherein prejudice occurred by reason of the impression the defendant obtained that only a sentence of life imprisonment could be imposed. No allegation is made that other evidence or additional evidence would be presented on a new trial, and there is no serious contention that the verdict is contrary to the law and the evidence.

“The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.” La.Code Crim.Proc. art. 851.

Since this record does not support the conclusion that an injustice has been done the defendant, this motion for a new trial was properly denied.

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

DIXON, J., concurs:

CALOGERO and BARHAM, JJ., dissent and assign reasons.

CALOGERO, Justice

(dissenting).

Defendant Bryant was charged with aggravated rape; conviction on this charge mandates a sentence of death. Before and during the trial, however, defense counsel, the defendant, and the assistant district attorney prosecuting the case (and accordingly the jury as well), thought that the maximum sentence confronting the defendant was life imprisonment. Their confusion stemmed from the ruling of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) which held that the imposition of the death penalty in certain circumstances was unconstitutional. Our decision in State v. Selman, 300 So.2d 467 (La.1974) which upheld the mandatory death penalty for aggravated rape was not handed down until after this defendant had been tried. Because of the confusion as to the penalty which could be imposed after conviction, the plea bargaining, the questioning and. selection of the jury, and the three-day trial were all conducted under a misapprehension about an essential focus of the prosecution, the penalty. It was only after all of the evidence Tiad been heard that the judge, in a conference on jury instructions, announced to the attorneys and the defendant that the sentence upon conviction would be death. The defense attorney still felt that the judge was mistaken, and so advised his client. The case was sent to the jury; defendant was found guilty and sentenced to death. Defense counsel's motion for a new trial was denied, a ruling which has now been upheld by the majority of this Court.

I respectfully dissent from that ruling. The Code of Criminal Procedure Article 851(5) provides that a new trial shall be granted whenever “[t]he court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.” A new trial should have been ordered here. The possible sentence upon conviction plays a crucial role, especially in a capital case, in a defendant’s approach to the myriad elements inherent in defending himself in a prosecution: the bargaining, the selection of the jurors, and the conduct of the trial.

The fact that defendant was afforded an opportunity to plead guilty to attempted aggravated rape, with its lesser penalty, and chose instead to send the case to the jury, does not, in my opinion, cure the infirmity inherent in this situation. The jury had been conditioned throughout the trial to view this case as non-capital. When the jury members began their deliberations, one or more of them may well have been confused as to whether defendant was to be subjected to execution upon a finding of Guilty. Even if each of them had been able to begin thinking of the case as capital, that would not alter the fact that the trial had been conducted tactically as if it were non-capital.

It should be pointed out that the majority of this Court does not hold that the confusion as to the sentence was not prejudicial to the defendant. The majority believes that, even if the “misunderstanding was indeed prejudicial and fatal to a valid prosecution,” the evidence as to defendant’s guilt was “overwhelming,” and an injustice had not been done the defendant. I believe, however, that where a trial has been permeated with confusion as to whether a person’s life is at stake, the ends of justice would best be served by the granting of a new trial, as authorized by C.Cr.P. Art. 851. I therefore respectfully dissent.

BARHAM, Justice

(dissenting).

I respectfully dissent for the reasons assigned by Mr. Justice Calogero.

ON REHEARING

TATE, Justice.

On original opinion, by a divided court, we affirmed the defendant’s co'nviction and sentence to death for aggravated rape, La. R.S. 14:42. We granted a rehearing because of our serious concern whether a new trial should be granted in the interests of justice. La.C.Cr.P. art. 851(5).

As the original majority and dissenting opinions show, the trial was conducted until the closing stages on the mistaken assumption of both state and defense that the maximum penalty assessable was life imprisonment. This was because of the unsettled state of the law as to capital punishment following Furman v. Georgia, 408 U. S. 238, 93 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and the Louisiana legislature’s 1973 reaction to it (which reinstated the death penalty, but under differing conditions with regard to different crimes). In the voir dire examination, for instance, the state accepted two prospective jurors opposed to the death penalty, instructing them that if the defendant were found guilty he would be sentenced to life imprisonment.

Nevertheless, in the closing stages of the trial, the district court concluded that the 1973 legislative revision had reinstated the death penalty for aggravated rape and that, since the legislative amendments had removed the jury’s discretion to impose life imprisonment instead, a death penalty did not violate Furman. (Subsequent to the trial and verdict, this court reached the same conclusion. State v. Selman, 300 So.2d 467 (La.1974).)

The defendant was so informed prior to the submission of the case to the jury. He elected to submit his case to the jury, rejecting a plea bargain by which he would have received a non-capital penalty.

We are unable, under the circumstances set forth in the original majority opinion, to hold that legal error was committed by thus submitting the case to the jury without objection from the defendant and on his election to do so. Nor can we hold, although the issue may bfe close, that the trial judge abused his discretion by denying a new trial as being in the interests of justice.

Our original opinion correctly disposes of the other assignments of error urged.

For the reasons assigned, therefore, our original decree affirming the conviction and death penalty is reinstated.

Affirmed.

TATE, J., assigns additional concurring reasons.

DIXON, J., dissents.

CALOGERO, J., dissents for the reasons expresssed in dissent on original hearing.

. DENNIS, J., recused because of his participation in the case below.

TATE, Justice

(concurring).

The writer concurs in the affirmance of the conviction. No error of law is shown, in his opinion, which justifies this court in setting aside the jury’s verdict of guilty.

Nevertheless, although I am unable to secure adherence of a majority of the court, I do not feel it inappropriate to note my view that in this case the court should exercise the power granted it hy the Louisiana Constitution of 1974 and declare the death penalty excessive under the facts of this case for the crime as proved.

The Louisiana Constitution of 1921 merely prohibited “cruel and unusual punishment.” Article I, Section 12. In a deliberate change of wording, the new Louisiana Constitution of 1974 broadened the constitutional provision' (and the duty of our courts in review of sentences) by providing, Article 1, Section 20: “No law shall subject any person . . to cruel, excessive, or ’ unusual punishment.’ (Italics mine.)

The deliberate inclusion of a prohibition against “excessive” as well as “cruel and unusual” punishment adds an additional constitutional dimension to judicial imposition and review of sentences.

By the new constitution’s mandate, the People have made inapplicable the prior standards of judicial review of sentences as cruel and unusual established by prior jurisprudence interpreting the former state constitutional provision, as well as jurisprudence interpreting the federal constitution’s Eighth Amendment prohibition against “cruel and unusual punishments.”

Two of the leading figures of the 1973 constitutional convention have correctly summarized, in my opinion, the effect of the new constitutional requirement that no sentence imposed under our criminal law be “excessive”.

Professor Lee Hargrave of the LSU Law School faculty served as the co-ordinator of legal research for the Constitutional Convention of 1973; he directed research for the committee on the Bill of Rights and Elections. In discussing this provision of the new constitution, Professor Hargrave states in his article, “The Declaration of Rights of the Louisiana Constitution of 1974”, 35 La.L.Rev. 1, 63 (1974) :

“The prohibition against cruel or unusual punishment is derived from the eighth amendment and Article I, § 12 of the 1921 Constitution. The new section, however, adds that no law shall subject any person to ‘excessive punishment,’ broadening the prior prohibition against, ‘excessive fines’. This gives the courts, in the exercise of their judicial review power, a basis for determining that sentences, whether fine, imprisonment or otherwise, though not cruel or unusual, are. too severe as punishment for certain conduct and thus unconstitutional. It is a basis for extending the court’s control over the entire sentencing process.”

One of the co-authors of the Constitutional Convention’s Declaration of Rights now Article I of the Louisiana Constitution of 1974, State Representative Louis “Woody” Jenkins, wrote, see “The Declaration of Rights”, 21 Loy.L.Rev. 9, 39 (1975):

“The prohibition against 'excessive . . . punishment’ makes a great change in the law and requires the courts to do justice in each case, regardless of any legislative assertion. This standard allows the courts to avoid strained interpretations of what is cruel and unusual punishment, in order to reach the sometimes more important question of whether the punishment does, in fact, fit the crime. For example, it is much easier to find that imposition of the death penalty is excessive as punishment for such crimes as rape and kidnapping than that it is cruel or unusual. . . . Mandatory penalties are particularly suspect because they frequently have no relation to the magnitude of the offense.”

The circumstances of the present case, involving young people of the same age and race, in my opinion demonstrate that capital punishment for the offender is an excessive penalty. The defendant, a mentally disturbed Vietnam veteran who had just had a violent quarrel with his wife, rode around with the two girls his own age for about five hours, during the course of which he ultimately raped one of them. There was brief penetration, but no emission or orgasm. No brutality (except for the act of rape itself) or even profanity was displayed during this long ordeal of the girls. No life was endangered in the incident, no unusual psychological trauma is shown, nor did the victim sustain psychiatric residual of any substantial nature.

No force was involved, although there was the threat of force. By reason of the threat, the jury could reasonably find that an aggravated rape had occurred. La.R.S. 14:42 (1950). The offense was obviously not a simple rape, La.R.S. 14:43 (1950) — the only other responsive verdict then available to the jury.

The type of offense proved is more closely described by the offense of “forcible rape”, legislatively created after the present offense, La.R.S. 14:43.1, by Act 333 of 1975: “Forcible rape is sexual intercourse without the lawful consent of the female where she is presented from resisting the act by force or threats of physical violence wherein the victim reasonably believes her resistance to be useless.” The penalty prescribed for this crime is imprisonment at hard labor for not less than one year nor more than twenty years. La.R.S. 14:43.1 (1975).

The 1975 amendments of La.C.Cr.P. art. 814, subd. A(8) (Act 334 of 1975) made “forcible rape” a responsive verdict to the charge of “aggravated rape”, a verdict the jury in the present case would almost certainly have returned if it had been given the choice. As noted, instead, “simple rape” was the only lesser verdict responsive to the charge allowed at the time of the trial.

Persuasive authority for the proposition that imposing the death penalty in cases where the rapist does not take nor endanger the life of his victim may constitute excessive punishment per se may be found in Ralph v. Warden, Maryland Penitentiary, 438 F.2d 786 (U.S.C.A. 4th Cir. 1970), cert. den. 408 U.S. 942, 92 S.Ct. 2869, 33 L.Ed.2d 766 (1972).

That court felt that the death penalty under these circumstances was so excessive as to be greatly disproportionate to the offense charged, and as such, it violated the “evolving standards of decency that mark the progress of a maturing society.” 438 F.2d 786, 790, quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958).

Rather than relying on the subjective opinions of the judge who imposes the sentence or of the judges who must review the case to determine the constitutionality of the death penalty in that case, the court gathered statistics of legislative actions in abolishing the death penalty, judicial actions in infrequently imposing the death penalty (when there was an option), and executive actions in the current moratorium on executing convicted capital criminals.

Statistics were also noted from around the world which indicated a similar view that the death penalty in this type of rape case is excessive. These statistics were held to be objective indicia of today’s society’s “evolving standards of decency.” Those statistics demonstrated that presently the United States is only one of four nations in which rape is punishable by death, and only 16 of this country’s 50 states provide a death penalty for rape. From 1960-1968 there were 15,560 reports of rape in the United States, yet only 101 convicted rapists during that period received the death penalty. And no one has been put to death in the United States for rape since 1964.

The ultimate penalty of death is reserved for barbarous or peculiarly cold-blooded crimes which create extraordinary risk of harm to social peace and security. Even an intentional killing of another is not under our law subject to capital punishment, La.R.S. 14:30.1 (1973), except in aggravated circumstances, La.R.S. 14:30 (1973).

For all of these reasons, under the circumstances here shown, the death penalty is excessive punishment for the offense here proved. In my opinion, this court is now under a constitutional duty to review sentences as excessive, either as for the crime charged or as disproportionate to the crime proved. While the present defendant should be subjected to severe punishment for the forcible rape he committed, the death penalty is excessive under the non-brutal circumstances of this rape, where the victim’s life was not endangered nor was she subjected to serious bodily or psychological injury.

Normally, however, the excessiveness of a penalty is not a patent error discoverable from the face of the pleadings without objection at the time. State v. Williams, 332 So.2d 177 (La.1975). As that opinion indicates, the proper way to question a penalty as excessive is to object to it and to designate the error, La.C.Cr.P. arts. 841, 844 (1974); thus affording an opportunity to include evidence or circumstances, not otherwise found in the trial record, which support or defeat the contention of exces-siveness.

Nevertheless, in the present case, the record itself includes the pertinent factual data as to excessiveness. Until this decision, this court has not been squarely faced with an issue of excessiveness of this nature.

This being a death penalty, the technical requirements of sufficiency to preserve an issue for appellate review should be relaxed, as they were even under the old ultra-technical bill of exceptions procedure. See State v. Square, 257 La. 743, 244 So.2d 200, 209 (1971) and the cases there cited. This is especially true in the instant case, because of the novelty of the issue and of the procedure to raise it for appellate review, and the unsettled state of the law in both regards.

For these reasons, the writer’s view is that, although the conviction should be affirmed, the death penalty should be set aside as excessive, and the case remanded for re- sentencing. However, since the view expressed by this opinion does not command a majority of the six justices who heard this appeal (Mr. Justice Dennis is recused) I do not in this case persist in this view; therefore, the writer presently concurs in the affirmance of the sentence as well as of the conviction, since a majority (including the writer) do agree that the conviction should be affirmed and no other majority view prevails.

      . During the 1973 regular session, the Louisiana legislature enacted amendments to Articles 814 and 817 of the Code of Criminal Procedure which were intended to correct the constitutional infirmities of the prior law. These amendments curtailed the power of the jury to qualify a verdict, by imposing or not imposing capital punishment, or to return any but one of the listed responsive verdicts for certain felonies, including rape. Our decision in State v. Selman, supra, held that this new scheme under which defendant Bryant was convicted, met the constitutional test of Furman v. Georgia, supra.

      . La.R.S. 14:43 (1950) provided:
      “Simple rape is a rape committed where the sexual intercourse is deemed to be without the lawful consent of the female because it is committed under any one or more of the following circumstances:
      “(1) Where she is incapable of resisting or of understanding the nature of the act, by reason of stupor or abnormal condition of the mind produced by an intoxicating, narcotic or anesthetic agent, administered by or with the privity of the offender; or when she has such incapacity, by reason of a stupor or abnormal condition of mind from any cause, and the offender knew or should have known of her incapacity.»
      “(2) Where she submits under the belief that the person committing the act is her husband and such belief is intentionally induced by any artifice, pretense, or concealment practiced by the offender.
      “(3) Where she is incapable, through unsoundness of mind, whether temporary or permanent, of understanding the nature of the act; and the offender knew or should have known of her incapacity.
      “Whoever commits the crime of simple rape shall be imprisoned at hard labor for not less than one nor more than twenty years.”


text:
    Joseph N. TRAIGLE, Collector of Revenue, Department of Revenue, State of Louisiana v. P. P. G. INDUSTRIES, INC.
    No. 57224.
    Supreme Court of Louisiana.
    Jan. 9, 1976.
   In re: Joseph N. Traigle, Collector of Revenue, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu, 321 So.2d 541.

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. John R. NEYREY.
    No. 57163.
    Supreme Court of Louisiana.
    Jan. 9, 1976.
   In re: John R. Neyrey applying for Writs of Ceritorari and Review.

Granted. (See order.)

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 Louis DeSonier, Jr., Judge of the 24th Judicial District Court, for the Parish of Jefferson to transmit to the Supreme Court of Louisiana, on or before the 26th day of January, 1976, 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 the 2nd day of April, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Casey A. SMITH.
    No. 57239.
    Supreme Court of Louisiana.
    Jan. 9, 1976.
   In re: Casey A. Smith applying for Remedial Writs.

Proceedings for review granted: Treating this appeal from a non-appealable conviction as an application to our supervisory jurisdiction, La.Supreme Court Rule I, Section 10 (1973), we grant supervisory writs.

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 Cyril J. Gracianette, Judge of the First Parish Court, for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 26th day of January, 1976, 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 the 2nd day of April, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Robert M. SCHWARTZ and Henry F. Jacomb v. Honorable Daniel W. LeBLANC, Judge, 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana.
    No. 57254.
    Supreme Court of Louisiana.
    Jan. 9, 1976.
   In re: Robert M. Schwartz and Henry F. Jacomb applying for Writ of Mandamus.

Granted. (See Order.)

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 Daniel W. LeBlanc, Judge of the 19th Judicial District Court, for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 26th day of January, 1976, 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 the 2nd day of April, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    OIL PURCHASERS, INC. v. W. J. KUEHLING et al.
    No. 57241.
    Supreme Court of Louisiana.
    Jan. 9, 1976.
   In re: Heirs of Edward F. LeBlanc, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Vermilion, 321 So.2d 17.

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. Lewis E. PAGE, Jr.
    No. 57256.
    Supreme Court of Louisiana.
    Jan. 9, 1976.
   In re: State of Louisiana through Harry F. Connick, District Attorney, applying for Writ of certiorari.

Granted. (See Order.)

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 Frank J. Shea, Judge of the Criminal District Court, for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 26th day of January, 1976, 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 onlered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 2nd day of April, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Rocco MUMPHREY.
    No. 57190.
    Supreme Court of Louisiana.
    Jan. 9, 1976.
   In re: Rocco Mumphrey, applying for judicial review from the 24th Jud. District Court, Parish of Jefferson.

Writ denied. No error of law in the rulings complained of.


text:
    Barry FLINT and Donald Plaisance, Sr., Administrator of the Estate of Donald Plaisance, Jr. v. ST. AUGUSTINE HIGH SCHOOL and St. Joseph’s Society of the Sacred Heart, Inc.
    No. 57234.
    Supreme Court of Louisiana.
    Jan. 9, 1976.
   In re: Barry Flint and Donald Plai-sance, Sr., Administrator of the Estate of Donald Plaisance, Jr. applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 323 So.2d 229.

Writ refused. On' the facts found by the Court of Appeal, there is no error of law in its judgment.


text:
    STATE of Louisiana ex rel. Wallace J. CLOUD and Marques L. Blakes v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, et al.
    No. 57233.
    Supreme Court of Louisiana.
    Jan. 9, 1976.
   In re: Wallace J. Cloud and Marques L. Blakes applying for Writ of Certiorari and Habeas Corpus.

Application denied for the reasons stated by the trial judge.


text:
    STATE of Louisiana v. Russell H. FREE.
    No. 57227.
    Supreme Court of Louisiana.
    Jan. 9, 1976.
   In re: Russell H. Free, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides, 321 So.2d 50.

Writ denied. No error of law.


text:
    STATE of Louisiana v. Jimmy W. CASKEY.
    No. 57229.
    Supreme Court of Louisiana.
    Jan. 9, 1976.
   In re; Jimmy W. Caskey applying for Supervisory Writs of Review.

Writ refused. No merit in application.


text:
    ESTATE of John E. RICHARD v. Joseph Willie RICHARD.
    No. 57235.
    Supreme Court of Louisiana.
    Jan. 9, 1976.
   In re: Joseph Willie Richard, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry.

Writ denied. Judgment is not final.


text:
    Mrs. Stanley BEGNAUD et al. v. A. B. DEBOISBLANC et al.
    No. 57236.
    Supreme Court of Louisiana.
    Jan. 9, 1976.
   In re: Mrs. Stanley Begnaud, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette. 321 So.2d 373.

Writ denied. On the facts found there is no error of law.


text:
    Richard (Dickie) MARTIN v. CITY OF ST. MARTINVILLE.
    No. 57238.
    Supreme Court of Louisiana.
    Jan. 9, 1976.
   In re: City of St. Martinville, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Martin. 321 So.2d 532.

Writ denied. On the facts found by the Court of Appeal, there is no error of law in the judgment complained of.


text:
    STATE of Louisiana ex rel. Albert FOURNETTE v. Paul PHELPS, Warden, Louisiana State Penitentiary, et al.
    No. 57243.
    Supreme Court of Louisiana.
    Jan. 9, 1976.
   In re: Albert Fournette, applying for writ of mandamus and certiorari.

Writ denied. Since no' out-of-time appeal has been granted in the case, relator has no right to a trial transcript.


text:
    STATE of Louisiana ex rel. Jack LINCOLN v. Paul PHELPS, Warden, Louisiana State Penitentiary, et al.
    No. 57244.
    Supreme Court of Louisiana.
    Jan. 9, 1976.
   In re: Jack Lincoln applying for Writ of Certiorari and Habeas Corpus.

Writ denied. Showing made does not warrant exercise of our jurisdiction.


text:
    Francis S. DEVILLIER et al. v. TRADERS & GENERAL INSURANCE COMPANY et al.
    No. 57248.
    Supreme Court of Louisiana
    Jan. 9, 1976.
   In re: Roma Devillier Landos applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry. 321 So.2d 55.

Application denied. On the facts found by the court of appeal there was no error in its judgment.


text:
    Clifford J. RYDER v. Narcisse LACOUR.
    No. 57251.
    Supreme Court of Louisiana.
    Jan. 9, 1976.
   In re: Narcisse Lacour applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry. 322 So.2d 243.

Not considered. Not timely filed in accordance with our rules.


text:
    STATE of Louisiana ex rel. Gustavo Q. GOMEZ, a/k/a Carlos Majia v. William M. JUSTICE, Jr., Clerk of Court, 24th Judicial District Court, Jefferson Parish.
    No. 57293.
    Supreme Court of Louisiana.
    Jan. 9, 1976.
   In re: Gustavo Q. Gomez applying for Writ of Mandamus.

Writ denied. The application is moot. The trial court has acted upon petitioner’s writ.


text:
    STATE of Louisiana ex rel. Spencer RICHARDSON v. Hon. Frank J. SHEA, Judge, Criminal District Court, Parish of Orleans.
    No. 57047.
    Supreme Court of Louisiana.
    Jan. 14, 1976.
   In re: Spencer Richardson applying for Writ of Mandamus and Habeas Corpus.

Granted. A writ of mandamus is issued hereby commanding respondent judge to report to this court forthwith the action taken on applicant’s petition for a copy of the testimony taken, in the evidentiary hearing held in his court.


text:
    STATE of Louisiana ex rel. Forist C. EMBRY v. The Honorable Frank J. SHEA, Judge, Criminal District Court, Parish of Orleans.
    No. 57071.
    Supreme Court of Louisiana.
    Jan. 14, 1976.
   In re: Forist C. Embry, applying for writ of mandamus.

Writ granted. It is ordered that a mandamus issue commanding the respondent to act upon relator’s application for habeas corpus.


text:
    Mr. and Mrs. Zacharias TURNER, Sr. v. SOUTHERN WHEEL AND RIM SERVICE, INC. and Security Insurance Company.
    No. 57259.
    Supreme Court of Louisiana.
    Jan. 14, 1976.
   In re: Mr. and Mrs. Zacharias Turner, Sr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 322 So.2d 810.

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


text:
    STATE of Louisiana ex rel. William ROSS v. C. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 57260.
    Supreme Court of Louisiana.
    Jan. 14, 1976.
   In re: William Ross applying for Writ of Habeas Corpus, Certiorari, Prohibition and Mandamus.

Writ granted. Evidentiary hearing ordered on the allegation of ineffective counsel.


text:
    STATE of Louisiana, Through DEPT. OF HIGHWAYS v. Wilfred SOILEAU.
    No. 57269.
    Supreme Court of Louisiana.
    Jan. 14, 1976.
   In re: Wilfred Soileau, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Evangeline, 323 So.2d 162.

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:
    Moise S. STEEG, Jr., et al. v. LAWYERS TITLE INSURANCE CORP. et al.
    No. 57344.
    Supreme Court of Louisiana.
    Jan. 14, 1976.
   In re: Lawyers Title Ins. Corp. and Lawyers Title of La., Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 323 So.2d 236.

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


author: DIXON, J.,

text:
    STATE of Louisiana ex rel. Eugene C. RUSSO v. C. Murray HENDERSON; Warden, Louisiana State Penitentiary.
    No. 57023.
    Supreme Court of Louisiana.
    Jan. 14, 1976.
   In re: Eugene C. Russo, applying for writ of certiorari.

Writ denied. Insufficient showing made to warrant the exercise of our jurisdiction.

DIXON, J.,

dissents from denial. There has been no hearing on the application.


text:
    STATE of Louisiana v. Henry Leon CALDWELL.
    No. 57246.
    Supreme Court of Louisiana.
    Jan. 14, 1976.
   In re: Henry Leon Caldwell, applying for supervisory writs of review.

Writ denied. On the facts of this case there is no merit to this application.


text:
    STATE of Louisiana v. John D. BROWN.
    No. 57255.
    Supreme Court of Louisiana.
    Jan. 14, 1976.
   In re: John D. Brown applying for Writs of Certiorari, Prohibition, Mandamus and other remedial writs.

Writ denied. Under the circumstances, the Sixth Amendment does not, as contended, require furnishing of additional expert medical assistance.


text:
    Jesse M. MILLER et ux. v. BROADMOOR VILLAGE, INC., et al.
    No. 57257.
    Supreme Court of Louisiana.
    Jan. 14, 1976.
   In re: Jesse M. Miller, et ux applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 321 So.2d 925.

Writ denied. On the facts found by the Court of Appeal the judgment is correct.


text:
    In the Matter of the Succession of Emma Robinson FREEMAN and Freddie Freeman.
    No. 57261.
    Supreme Court of Louisiana.
    Jan. 14, 1976.
   In re: Percy Robinson, applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 322 So.2d 254.

Writ denied. On the facts found by the Court of Appeal, the result is correct.


text:
    STATE of Louisiana v. Nina BROWN.
    No. 57265.
    Supreme Court of Louisiana.
    Jan. 14, 1976.
   In re: Nina Brown applying for Writ of Certiorari (Review), Prohibition, Mandamus and Stay Order.

Application denied. No error of law in the judgment of the district court.


text:
    Kenneth W. CARTER et al. v. Edward FENCH.
    No. 57270.
    Supreme Court of Louisiana.
    Jan. 14, 1976.
   In re: Kenneth W. Carter and Frank S. Washington, applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 322 So.2d 305.

Writ denied. Judgment of the Court of Appeal is correct.


text:
    William C. ROBERSON v. FONTENOT PETROLEUM CO., INC., et al.
    No. 57271.
    Supreme Court of Louisiana.
    Jan. 14, 1976.
   In re: Fontenot Petroleum Co., Inc. and Bituminous Casualty Corp. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 322 So.2d 287.

Writ denied. No error of law.


text:
    CITY OF MINDEN v. Merrick GRAY.
    No. 57273.
    Supreme Court of Louisiana.
    Jan. 14, 1976.
   In re: Merrick Gray, applying for writs of certiorari, prohibition, mandamus and/or review and for Stay Order.

Writ denied. There is no error of law in the judgment complained of.


text:
    STATE of Louisiana ex rel. Stanley L. PLAISANCE v. The Hon. Thomas J. WICKER, Judge, 24th Judicial District Court, Parish of Jefferson.
    No. 57367.
    Supreme Court of Louisiana.
    Jan. 14, 1976.
   In re: Stanley L. Plaisance applying for Writ of Mandamus.

Writ denied. The petitioner’s application for habeas corpus relief was denied by the 24th Judicial District Court on October 23, 1975. The present petition for mandamus is therefore moot.


text:
    Moses GRIMES v. RED BALL MOTOR FREIGHT, INC.
    No. 57274.
    Supreme Court of Louisiana.
    Jan. 16, 1976.
   In re: Red Ball Motor Freight, Inc. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 321 So.2d 885.

Writ denied. No error of law under the facts found.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Raymond B. COLBY (Colby Inn, Inc., Substituted).
    No. 57275.
    Supreme Court of Louisiana.
    Jan. 16, 1976.
   In re: State of Louisiana, through the Department of Highways, applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of St. Tammany. 321 So.2d 878.

Application denied. There is no error in the judgment of the Court of Appeal.


text:
    Margot R. LEA, Individually, and as Tutrix of the Minors Robyn Lea and Reid Lea v. BAUMANN SURGICAL SUPPLIES, INC. et al.
    No. 57277.
    Supreme Court of Louisiana.
    Jan. 16, 1976.
   In re: Baumann Surgical Supplies, Inc., applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 321 So.2d 844.

Writ denied. On the facts found, the result is correct.


text:
    MOTOR MACHINE AND SUPPLY CO. v. DELILAH TOWING COMPANY, INC.
    No. 57279.
    Supreme Court of Louisiana.
    Jan. 16, 1976.
   In re: Motor Machine and Supply Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Terrebonne. 321 So.2d 896.

Writ refused. On the facts found by the court of appeal, the result is correct.


text:
    Margot R. LEA, Individually, and as Tutrix of her Minor Children, Robyn Lea and Reid Lea v. BAUMANN SURGICAL SUPPLIES, INC., et al.
    No. 57280.
    Supreme Court of Louisiana.
    Jan. 16, 1976.
   In re: Mrs. Margot R. Lea, applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 321 So.2d 844.

Writ denied. On the facts found, the result is correct.

DIXON, J., dissents from refusal.


text:
    STATE of Louisiana v. Cristobal Enrique Crusado GOMEZ.
    No. 57281.
    Supreme Court of Louisiana.
    Jan. 16, 1976.
   In re: Cristobal Enrique Crusado Gomez applying for Writ of Certiorari.

Writ denied. The showing made does not warrant the exercise of this Court’s supervision.