author: SUMMERS, Justice. TATE, Justice,

text:
    STATE of Louisiana v. Donald W. WAGSTER.
    No. 61302.
    Supreme Court of Louisiana.
    June 19, 1978.
    Rehearing Denied Aug. 31, 1978.

      R. Judge Eames, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Anthony J. Marabella, Jr., Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
   SUMMERS, Justice.

Donald W. Wagster was charged by bill of information on November 26, 1975 with receiving stolen things (radio equipment valued at more than $100 but less than $500) on October 25, 1975, the property of East Baton Rouge Parish School Board. On the same day he was charged in another bill with receiving stolen things (a Channel Master stereo valued at more than $100 but less than $500) on October 25, 1975, the property of Robert Lejeune. Both bills alleged a violation of La.Rev.Stat. 14:69. He was found guilty by a jury of six and sentenced to serve two years imprisonment and to pay a fine of $2,000 on each count, the sentences to run consecutively. Both sentences were suspended on the condition the defendant serve 5 months and 25 days in the parish prison on each count, these sentences to run consecutively and that defendant pay the costs of court and remain on active probation for five years. A later amendment of the sentence eliminated the five-year probation.

Assignments of error relied upon are considered in the order presented in the defense brief.

Assignments 3 and 3A : Prior to trial on June 6, 1977, the State moved for a joinder of the two offenses and the motion was granted by an ex parte order of the trial judge. On June 8, 1977 when the two charges were fixed for trial, before the trial commenced, the trial judge heard a number of defense motions and then called the State’s motion for joinder to be heard, vacating his June 6,1977 order of joinder. At that time defense counsel announced the filing of a motion to compel election and moved that it be heard contemporaneously with the State’s motion for joinder. In his motion defendant alleged that he could not properly prepare his defense because the two charges set for trial that date could not be consolidated. He objected to consolidation and alleged that an order should be issued compelling the State to elect which of the two charges would be tried first.

In argument to support his opposition to the joinder defense counsel asserted joinder deprived him of the right to exercise his right to waive jury trial as to one charge and to try the other by jury. When the State’s attorney offered to try the cases separately if defense counsel would try one by jury and the other by the judge alone, defense counsel rejected the offer by insisting on a determination of his motion to elect. The State’s attorney then asserted he would join the offenses for trial unless joinder was ruled improper.

In the argument which ensued on the motions to join and to compel election defense counsel claimed that the defense was unduly burdened by a joint trial of two offenses. If the State intended to try the offenses jointly, he said, one bill of information should have been filed charging the offenses in two counts. His objection to the joint trial, counsel conceded, was based upon the rationale of the law prior to enactment of Act 582 of 1975 authorizing joinder of offenses and joinder of defendants and prescribing grounds for severance of offenses. See La.Code Crim.Pro. arts. 493, 494 and 495.1. Without specifying the noncompliance counsel also argued that the State did not follow the statutory law authorizing joinder. For these reasons he argued the two charges should therefore be tried separately, to do otherwise would deprive the accused of his right to elect whether he would be tried by the judge or jury in each case.

The State’s attorney replied that he relied upon Article 493 of the Code of Criminal Procedure to support the joinder of these charges and that he was agreeable to trying them jointly before the judge or jury at defendant’s election.

No evidence was produced at the hearing. When the arguments were concluded the trial judge granted the State’s motion to join and denied defendant’s motion to compel election.

The defense motion to compel election as presented in this record will be treated as an application for severance, a procedure provided for by Article 495.1 of the Code of Criminal Procedure. Subsequently in his argument in brief on a motion for continuance defense counsel referred to it as a motion for severance. The motion is by its terms an application for severance, and it was treated by counsel and the trial judge throughout the hearing as an opposition to the joinder. An application by the defendant for severance of offenses serves the same purpose.

Joinder of offenses is permitted by Article 493 of the Code of Criminal Procedure as follows:

“Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.”

The charges joined by these bills of information are on their face of the same or similar character. Each charges the violation of the identical crime, receiving stolen things; the violations are charged as having taken place on the same day, October 25, 1977; each charge involves electronic sound equipment; and each charge is a felony and, because of the amounts involved, are triable by the same mode of trial, in the district court by a jury of six, or by the judge alone if the defendant waives trial by jury. La.Const. art. I, § 17; La. Rev.Stat. 14:69; La.Code Crim.Pro. arts. 780, 782. There was no evidence to refute these obvious similarities at the time of the ruling by the trial judge. In the absence of evidence to the contrary the joinder was permissible under Article 493.

Despite these similarities in the two charges, severance is nevertheless authorized under Article 495.1 of the Code of Criminal Procedure. That article provides:

“The court, on application of the prosecuting attorney, or on application of the defendant shall grant a severance of offenses whenever:
(a) if before trial, it is deemed appropriate to promote a fair determination of defendant’s guilt or innocence of each offense; or
(b) if during the trial upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. The Court shall consider whether, in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.”

As the recital of facts establish, the issue presented involves subsection (a) of Article 495.1, the issue of severance having arisen “before trial”. In this context severance is dependent upon whether “it is deemed appropriate to promote a fair determination of defendant’s guilt or innocence of each offense.” The only evidence available to the trial judge at this time was the two bills of information. On the basis of these documents, which undoubtedly demonstrated that the offenses were of the same or similar character, the trial judge determined that joinder was proper. No evidence was presented at that time to support a finding that severance was “deemed appropriate to promote a fair determination of defendant’s guilt or innocence of each offense.”

This, however, need not have ended defendant’s right to obtain severance. Severance was available during trial on defendant’s application, and with his consent, if the evidence developed was such that severance was “deemed necessary to achieve a fair determination of defendant’s guilt or innocence of each offense.” Id. subsection (b). If defendant had applied during trial the court is mandated by Article 495.1(b) to consider whether, in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact would be able to distinguish the evidence and apply the law intelligently as to each offense. However, because of the facts which developed at the trial or for other reasons best known to the defense, no application for severance was made during trial.

The trial judge could not be expected to rule on a motion for severance before trial on the basis of evidence which developed later at the trial, evidence which was not known to him and which was not then a fact. It was incumbent on the defense to convince the judge when his “before trial” application for severance was before the judge that severance was deemed appropriate. This was not done. Under these circumstances the ruling of the trial judge was correct.

Assignment 4: When the trial judge denied the defense motion to compel election, which has been treated as an application for severance, defense counsel orally moved for a continuance. The motion was denied. Previously defense counsel had argued that if the court ruled that joinder was proper, the defendant should be granted a continuance because the two charges had been fixed for trial on the same day without notice to him that they would be joined. Joinder of these charges immediately prior to trial, he argued, was a substantive change which entitled defendant to a continuance as a matter of right. La.Code Crim.Pro. art. 489.

Defendant’s right to a continuance under these circumstances is dependent on whether he has been prejudiced by the amendment of the charges from two separate charges to charges which have been joined for trial. In determining whether the defendant has been prejudiced in his defense upon the merits, the court must consider all the circumstances of the case and the entire course of the prosecution.

As the trial judge observed, no substantive change was made in the charges which would affect the merits of the defense. Both cases had been set for trial on June 8, 1977, and defense counsel had been notified to that effect on May 27,1977 and made no objection until the day of trial. The defense was aware that it had to be prepared to defend each charge that day. The substance of the charges remained unchanged, the only difference being joinder, which would require the defendant to try the cases together. Joinder is not a substantive change it only involves a change in procedure.

If defense counsel was surprised by the joinder, as he asserts, no prejudice is shown which would have affected the outcome of the determination of defendant’s guilt or innocence. It is incumbent upon the defense to establish the requisite prejudice to convince the trial judge that a continuance is vital to the defense. The defendant should point out the prejudice he claims. State v. Gibson, 322 So.2d 143 (La.1975). He has not done so.

Aside from the fact that the motion for continuance was not in writing or verified by counsel’s affidavit as required by Article 707 of the Code of Criminal Procedure, and that the defense has not pointed out wherein he is prejudiced, there is no showing of any abuse of the discretion reposed in the trial judge in such cases. Id. art. 712. The assignment lacks merit.

Assignments 12, 13, 23 and 24: On the trial of the case it was shown that on October 2, 1975 the residence of Robert A. Lejeune was burglarized. Among the items taken was a “Channel Master” stereo. Roland S. Phebus, a bricklayer working nearby, testified that he noticed two people carrying boxes from Lejeune’s yard into the house next door. Later he learned that defendant lived in the house next door with his parents. When Lejeune reported burglary of the stereo, investigating officers spoke to defendant at which time he denied having any knowledge of the stereo burglary-

A walkie-talkie set and other radio equipment were taken from the office of Park Forest Junior High School on October 17, 1975. William Laurie, a student of that school, testified at the trial that he had stolen the equipment and sold it to defendant a day or two after the theft.

On October 25, 1975 a consent search was conducted at the defendant’s residence during which the police discovered the stolen goods on which this prosecution is based.

While the State’s direct examination of Phebus was in progress, the defense objected to Phebus’ testimony, arguing that reference to the fact that defendant lived next door produced the inference that defendant had committed a burglary, another crime, and the evidence should not be admitted because no prior notice had been furnished to the defense that evidence of other crimes would be introduced at the trial. See La. Rev.Stat. 15:445-46.

There is no merit to this defense contention. An essential element of the crime of receiving stolen things is the fact that the objects received and concealed were the subject of a theft. La.Rev.Stat. 14:69. Evidence of the burglary, therefore, was essential to proof of the offense charged. In addition, the prosecution must prove that defendant knew or had reason to know that the things were stolen. Phebus’ testimony to the effect that the burglars took the stolen items to defendant’s residence was relevant to show that defendant knew the stereo was stolen. Phebus’ testimony, therefore, was evidence bearing upon essential elements of the crime charged, it was not evidence of an extraneous offense.

On another occasion the defense made a similar claim. When Laurie testified that he sold the radio equipment to defendant he said he was later arrested for burglary and theft and that defendant was arrested at the same time for the same offense. In addition to the fact that Laurie’s statement that defendant was also arrested for burglary and theft was unsolicited by the State, that testimony was relevant to prove an essential element of the crime charged. Defendant’s arrest for burglary and theft of the objects he was charged with having received established knowledge on his part that they were stolen.

Defendant’s motions for mistrials on the basis of this testimony were properly denied.

Assignments 39, 40, 41, 42, 43, 46, 47: A hearing was held outside the presence of the jury during trial on a defense motion to suppress as evidence the stereo and radio equipment seized by law officers on October 25, 1975. Although the motion sought suppression of statements of the defendant, this portion of the motion to suppress is not urged on appeal.

Testimony at the hearing was to the effect that on October 25, 1975 Deputy Mike Barnett went to the Wagster residence and asked defendant’s parents for permission to search the residence. Consent was given by defendant’s father and a search inside the house resulted in the seizure of two of the walkie-talkies stolen from the school office.

There were also three vehicles on the Wagster property — a car and van belonging to defendant’s parents and a van owned by defendant. Defendant purchased the van several months before the search with his own money but the title to the van was in his father’s name. The van was located in the back yard and was without wheels at the time of the search. It was being fixed by defendant and was used in the meantime as a sort of playhouse. The officers seized the stereo and a walkie-talkie from that van.

The issue thus presented is whether the father consented to a search of defendant’s van and whether the father had the authority to consent to such a search. The father testified that his initial consent was to search the residence only. According to his testimony, when he was later asked by the officers to search the vehicles, his consent applied to his van, not his son’s. Officer Barnett testified to the contrary, saying he sought and obtained consent to search defendant’s van when he talked to the father.

Thus, a credibility question is presented. In numerous decisions this Court has said that credibility determinations should be left largely to the trial judge. State v. Dunbar, 356 So.2d 956 (La.1978). (No. 60,-634 on the docket of this Court, rendered March 6, 1978); State v. Schouest, 351 So.2d 462 (La.1977).

Furthermore, consent to search a residence should, under ordinary circumstances, apply to structures appurtenant thereto used in connection with the main building, such as a van without wheels resting on blocks, and used as a playhouse as in the case at bar. In any event, the trial judge’s ruling was correct and should not be disturbed unless arbitrary and capricious.

Alternatively, if consent was given defendant denies the father’s authority to consent to a search of his van. In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the Supreme Court has formulated a statement of the principles which are applicable in this situation:

“These cases at least make clear that when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over, or other sufficient relationship to, the premises or effects sought to be inspected.”

A footnote to the foregoing continues:

“Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, see Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961) (landlord could not validly consent to the search of a house he had rented to another), Stoner v. California, 376 U.S. 483, 84 S.Ct. 899, 11 L.Ed.2d 856 (1964) (night hotel clerk could not validly consent to search of customer’s room) but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.”

Unquestionably, except in unusual circumstances, the parent possesses at least common authority, if not the principal authority, over the residence occupied by the parent and his nineteen-year-old son. So much for the principal dwelling at the place of residence. As to an appurtenant structure — the van — used by the son and entered by his mother and father with his consent whenever it was not locked, it is reasonable to conclude that, because his parents had the joint right of access to and use of the van, the son assumed the risk that one of them might permit the van to be searched. State v. Morris, 340 So.2d 195 (La.1976); State v. Johnson, 319 So.2d 786 (La.1975).

The trial judge properly denied the motion to suppress this search and seizure conducted on the authority of a valid consent.

Assignment 10: Defendant contends that it was improper for the trial judge to question a State witness in the presence of the jury. Without reviewing the prolonged interrogation by the State’s attorney which set the background for the brief questioning by the trial judge, it will be sufficient for these purposes to say that the conduct of the judge’s examination was such as to impress the jury with his impartiality. He indicated no opinion on the merits, nor did he cast doubt upon the credibility of any witness. No question was propounded by the judge based upon the assumption of defendant’s guilt. This Court has approved questioning of witnesses by the judge when these standards are observed. State v. Gorves, 311 So.2d 230 (La.1975).

Although it may be different in a trial by a judge alone, State v. Layssard, 310 So.2d 107 (La.1975), questioning of witnesses in a criminal jury trial by the judge is a practice to be avoided unless deemed indispensable to a fair and impartial trial. A judge should be constantly aware of the basic premise of a criminal trial which calls upon the State, not the judge, to prove the defendant’s guilt beyond a reasonable doubt. It is enough for the judge to impartially and wisely regulate the conduct of the trial without participating in the interrogation of witnesses, a practice fraught with danger of prejudice to the defendant.

Assignments 1 and 2: Without a hearing the trial judge denied the defendant’s motion to quash the petit jury venire. Although not questioning the ruling on the merits of the motion, counsel contends the defendant was denied a constitutional and statutory right when he was refused the right to present evidence at a hearing on his motion.

The defense motion was filed ten days before trial and no subpoenas were requested on behalf of the defense. On the morning of the trial defense counsel stated that subpoenas were not issued for defense witnesses because he was unaware that the motion was set for hearing on the day of trial. It should be observed parenthetically that it is ordinarily incumbent upon the proponent of a motion to move for a hearing date on that motion. Otherwise it may be considered that the motion has been abandoned. The record does not show that an effort was made to have a date set for a hearing.

Nevertheless, rather than delay the trial, the judge allowed defense counsel to outline the evidence he intended to introduce. Then, accepting this as proven, the trial judge denied the motion on its merits. Insofar as the merits of the motion is concerned, no prejudice is claimed and none occurred.

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

DIXON, J., concurs, disagreeing with the views expressed as to Assignment # 10.

TATE, J., dissents for the reasons assigned.

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

DENNIS, J., dissents.

TATE, Justice,

dissenting.

I respectfully dissent.

Two separate bills of information were filed. On the state’s motion, they were consolidated and were tried at the same time, over the defendant’s objection.

The joinder was not authorized by law. La.C.Cr.P. art. 706 provides that two or more indictments may be consolidated for trial only upon motion of a defendant.

Neither the state nor this court can ignore, as unnecessary, positive legislative enactments designed to protect an accused against abusé, however little abuse (in our opinion) occurred in this particular illegal instance.

My view is not as technical as it seems. The improper procedure by the state deprived the defendant of certain procedural rights and deprived him of clearly defined statutory remedies to assert defenses against the joinder.

The state contends that it could have joined the two charges in a single indictment. La.C.Cr.P. art. 493. If it had done so, then the defendant could have moved to quash the indictments for misjoinder, La.C. Cr.P. art. 495, or could have moved to sever the offenses because the joinder would be prejudicial, La.C.Cr.P. art. 495.1.

The accused did not learn of the joinder of the two offenses until the day of the trial. Two days earlier the state ex parte had obtained an order joining the offenses “in accordance with L.S.A.C.Cr.P. Article 894” (which is not applicable). On the day of the trial, because the defendant had no previous notice, the trial court vacated the joinder, heard arguments, and then denied the motion and ordered the bills joined for charge.

Only by treating the defendant’s motion for a continuance as a motion to sever do we permit ourselves even to consider the merits of the accused’s argument — as if he had filed a motion to sever, a clearly defined statutory remedy (Art. 495), if the state had filed a single bill containing both counts.

We find no prejudice in this illegal join-der because, if the joinder had not occurred, the accused should have been prepared to try the two offenses separately on the same day. We overlook that, aside from the statutory prejudice sustained an accused and justice itself when courts and prosecutors exceed the authority granted them by law, the preparation for joint trial of two offenses may involve the production of more witnesses and defense to overcome the cumulative effect of the evidence as to both offenses, than the preparation of trial for each offense tried separately.

The majority opinion treats both offenses as if charged in one indictment. They were not. Nor do I find any statutory authority to amend two indictments so as to join them into one — La.C.Cr.P. arts. 487 and 488 simply permit amendment of an indictment to cure variances or defects. (Even there, if the amendment is prejudicial, the defendant is entitled as of right to a continuance, La.C.Cr.P. art. 489 — and a substantial variance in the proof of the state’s charge against which a defendant is required to defend has traditionally been considered such continuance-required prejudice, see, e. g., State v. Gurney, 249 La. 71, 185 So.2d 19 (1966)).

It is true that the state could have nol prossed these two separate indictments and attempted to join them in a single indictment under La.C.Cr.P.- art. 493. Had it done so (it did not, however), the accused could have, with appropriate delay, filed the motion to quash and the motion to sever permitted him — with adequate opportunity to prepare and brief the issues thereby presented.

Instead, on the morning of the trial, the two offenses charged by separate indictments were joined for trial. Ignoring the impropriety of such joinder, this court finds no prejudice — since, if the accused had been given an opportunity to file the motions which he was by law entitled to file, we would have found them without merit (at least on the basis of the truncated showing possible to the accused on learning of the joinder moments before trial).

The accused, charged by two separate indictments, had a statutory right to have those two separate indictments tried separately. This right was denied him, and this substantial violation of his statutory right entitles him to reversal regardless of prejudice actually shown (the law presumes it). La.C.Cr.P. art. 921.

Having determined reversal is required for the above reasons (in my opinion), it is unnecessary to discuss at any length my disagreement with the broad statements by the majority opinion that a father is entitled without more to let the police or others search his 19-year-old son’s motor vehicle parked near the family residence. (Perhaps here the result might be justified with more explanation of the present facts. However, I simply do not read the Louisiana constitution right of privacy guaranteed to all our citizens, Art. 1, Section 5, as narrowly as does the majority opinion, at least under its truncated statement of the facts and legal principles involved.)

I respectfully dissent.

      . La.Code Crim.Pro. art. 489:
      “If it is shown, on motion of the defendant, that the defendant has been prejudiced in his defense on the merits by the defect, imperfection, omission, uncertainty, or variance, with respect to which an amendment is made, the court shall grant a continuance for a reasonable time. In determining whether the defendant has been prejudiced in his defense upon the merits, the court shall consider all the circumstances of the case and the entire course of the prosecution. If it becomes necessary to discharge the original jury from further consideration of the case, the trial before a new jury will not constitute double jeopardy.”


source: Caselaw Access Project

author: DIXON, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Tracy Lee HUDSON.
    No. 61385.
    Supreme Court of Louisiana.
    June 19, 1978.
    Rehearing Denied Aug. 31, 1978.
    Charles E. McConnell, 26th Judicial Dist., Indigent Defender Bd., Springhill, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., Roland V. McKneely, Asst. Dist. Atty., Bossier City, for plaintiff-appellee.
   DIXON, Justice.

Defendant Tracy Lee Hudson was indicted for the first degree murder of Wendell G. Craig, in violation of R.S. 14:30. A jury trial was conducted and on March 2, 1977 defendant was found guilty as charged. A motion for new trial was granted by the trial judge on the ground that there was no evidence to sustain a conviction. The State’s application for writ of certiorari was denied on April 7, 1977. 344 So.2d 1 (La.1977).

On retrial September 26-30,1977 the jury returned a guilty verdict and recommended a sentence of life imprisonment without the benefit of probation, parole or suspension of sentence.

The crime occurred in a Bossier City trailer park. Several people, acquainted because the men worked together, had gathered at the mobile home of the Yorks, near the one occupied by defendant and his wife. Some were loud and very drunk (including the victim). One member of the party (who, with his wife, were the only blacks involved) had parked very close to defendant’s trailer, and was noisy and slow to leave. Defendant emerged from his mobile home, remonstrated and argued with the black who became distressed and drove off without the victim, who was depending on him for a ride home. The victim and the defendant then argued. The defendant testified that his wife suddenly terminated the argument by stabbing the victim. The defendant and his wife then withdrew to their mobile home. Defendant said the victim continued to make loud noises outside for awhile, but that it became quiet. The Yorks testified that the victim made his way back to their mobile home and fell dead on the floor.

On appeal, defendant relies upon three assignments of error for reversal of his conviction and sentence.

Assignment of Error No. 1

By this assignment, defendant contends that' the trial court erred in failing to sustain his motion to suppress the testimony of a State witness, Dennis Plunkett, or in refusing to allow an evidentiary hearing in support of defendant’s motion.

Defendant sought to exclude the testimony of the witness on the ground that the State had not acted with “clean hands.” Defendant alleged in argument on the motion that he would attempt to show, by way of an evidentiary hearing, that the witness was served a subpoena by the sheriff’s office, and that there was no subpoena or return on the subpoena filed in the record in the clerk’s office. He argues that, although the identity of State witnesses is not normally discoverable (see, e. g., State v. Thornton, 351 So.2d 480 (La.1977)), as a practical matter, that information becomes available on the public record when subpoenas and returns on subpoenas are filed with the clerk of court. Plunkett was an important witness — the only one to testify that he had seen Tracy Hudson stab Craig. Plunkett had not testified at the first trial, although he said he had given his name to the investigating police. The prosecutor interviewed Plunkett for the first time a few weeks before the second trial.

Even if it could be shown that the State acted with impropriety (we find none), defendant has failed to show he was prejudiced by not discovering the witness’ identity earlier. Defense counsel became aware of the State’s intention to call Plunk-ett after the jury was chosen, and then indicated to the court he had been caught by surprise. The trial was recessed until the next morning, and the trial judge excused the other witnesses to give defense counsel an opportunity to interview Plunk-ett before the resumption of trial the next day. It is apparent that defendant had the opportunity to complete trial preparation before any witnesses were called.

There is no merit to this assignment.

Assignment of Error No. 2

Defendant contends the trial court erred in sustaining the State’s objection to certain testimony of Ms. Sonya Peters, defendant’s attorney, during the first trial.

At defendant’s first trial, less than seven months earlier, he had been represented by two lawyers from Oklahoma. (Defendant was a horse trainer, had been a resident of Louisiana for only a short time, and had previously lived in Texas and Oklahoma). The Oklahoma lawyers associated Sonya Peters, a Shreveport lawyer, to assist them in the trial. According to defense counsel, Ms. Peters was prepared to testify that, in preparation for the first trial, she was told by one of the Oklahoma lawyers that Helen Hudson, defendant’s wife, had said she was the one who stabbed Craig and that Helen Hudson admitted to Ms. Peters that she was, indeed, the one who stabbed Craig.

In State v. Gilmore, 332 So.2d 789 (La.1976), we recognized that evidence that another person had admitted doing the act for which defendant was on trial was not inadmissible even though it was hearsay (evidence of a statement made out of court, offered to show the truth of matters asserted therein; State v. Martin, 356 So.2d 1370 (La.1978)).

We recognized in the Gilmore case that such an extra-judicial statement-admitting the commission of a crime fell within the exception to the hearsay rule as an admission against the defendant’s penal interest. The source of credibility for the out-of-court admission is the assumption that a person normally would not admit the commission of a crime if it were not true.

If the person who is said to have made the prior admission is present as a witness against the defehdant, hé is subject to cross-examination on the matter of his prior admission; if he denies making it, evidence of his out-of-court declaration is admissible. R.S. 15:493. In such case, all the parties with knowledge are before the court, and the jury can make the factual finding based on testimony. Where, however, the person who is said to have made the prior confession is not before the court, the chance of fabrication of testimony that another has confessed increases, and its reliability diminishes. Where, however, the defendant has made known his belief that another has confessed, and has diligently sought the attendance of that person at trial to prove his admission, only to be thwarted by the death (State v. Gilmore, supra) of the witness, or by his refusal to incriminate himself (see, e. g., Sutter v. Easterly, 354 Mo. 282, 189 S.W.2d 284, 162 A.L.R. 437, 444 (1945); U. S. v. Mulholland, 50 F. 413 (D.C.1892); See also State v. Morrow, 260 La. 72, 78, 255 So.2d 78 (1971) (Summers, J., dissenting); cf. State v. May, 339 So.2d 764, 770 (La.1976)), indicia of the genuine character of the defense is present. The rule developed that, if the out-of-court declarant were “unavailable” as a witness, testimony that the missing person had made the admission against penal interest is admissible.

Here defendant never revealed that his wife had confessed until the trial itself. She had testified at the first trial, apparently to the effect that she was present and her husband did not stab the deceased. Defendant testified that he did not stab the victim. At his second trial, he explained the failure of his wife and himself to reveal her as the culprit by the assertion that no one asked either of them if his wife had done the act. The only evidence in the record about the whereabouts of Helen Hudson at the time of the second trial is the testimony of defendant, who said he had not seen or heard of or about'his wife since she left the courtroom after the first trial seven months earlier. There is no evidence of any effort to locate her or to obtain her presence at trial.

Although defendant was an indigent at the time of the second trial, and represented by the indigent defender, it is hardly conceivable that the aid of law enforcement officials could not have been enlisted to locate one who confessed to stabbing another to death.

Wigmore explains that the purpose and reason of the hearsay rule is the key to the exceptions to it. 5 Wigmore on Evidence, § 1420 (Chadbourn rev. 1974). The hearsay rule is based upon its unreliability, and the first principle supporting exceptions to the hearsay rule, Wigmore says, is the “necessity” principle; that is, the witness whose out-of-court declaration is needed is dead or otherwise unavailable, making necessary the introduction of the hearsay testimony.

The record before us does not demonstrate that the first principle of the exceptions to the hearsay rule has been satisfied. The unavailability of Helen Hudson has not been demonstrated. The circumstances of her absence tend to show the unreliability of her purported admission that she stabbed Craig. We cannot conclude, from the absence of evidence about efforts to obtain the presence of Helen Hudson for trial, that defendant was relegated by necessity to the use of hearsay testimony.

Proof of Helen Hudson’s unavailability was essential to bring the testimony of Ms. Peters within the exception to the hearsay rule.

There is no merit to this assignment.

Assignment of Error No. 3

Defendant contends that the trial court erred in denying his motion for new trial which alleged that the verdict is contrary to the law and the evidence (C.Cr.P. 851(1)), and the interests of justice would be served by granting a new trial (C.Cr.P. 851(5)). Specifically, defendant raised the same allegation as in Assignment No. 1 (see that discussion above). In addition, he contended that the testimony of Dennis Plunkett, the only alleged eyewitness to the stabbing, was perjured and should be disregarded; therefore, he argues that there was no evidence upon which a verdict of guilty could have been based and a new trial should have been granted.

Several witnesses testified that they saw defendant arguing with the victim prior to the stabbing, but none, other than Plunkett, stated that they actually saw defendant stab Craig. Plunkett was not called to testify at defendant’s first trial (the witness himself stated that he gave his name to a police officer as a witness “but my name got lost somewhere”). Plunkett testified that while he was visiting a friend, Michelle Davenport, who lived in the same trailer park where defendant lived and where the incident took place, he saw Lori Miramontz run over to the Davenport trailer and overheard her saying that two men were arguing and fighting. According to Plunkett, at that point he jumped a fence behind defendant’s trailer and arrived on the scene in time to see the defendant stabbing Craig.

Defendant alleges that Plunkett’s testimony varies to such an extent from that of Lori Miramontz and Joy Heath that he must have committed perjury on the stand and his testimony should be disregarded. The testimony is conflicting in certain regards; however, the conflict does not reach the extent that it must be concluded that Plunkett’s testimony was perjured. Compare State v. Ellender, 354 So.2d 500 (La.1978), where eight defense witnesses testified in direct conflict (and.it was stipulated that nine more defense witnesses would so testify) to the testimony of a State witness which testimony was crucial to a determination of the defendant’s guilt or innocence.

From Lori Miramontz’ testimony on direct examination it appears that she and Joy Heath observed defendant and Craig arguing in front of a trailer owned by Mr. and Mrs. Russell York, left béfore anything further happened, returned to the York trailer where she saw the injured Mr. Craig, and ran to the Davenport trailer where she asked Michelle Davenport to call the police. She testified that she did not see Plunkett until she got to the Davenport trailer. The testimony became confused, however, in redirect when she stated she went to the Davenport trailer after “the argument” but did not specify that it was after Mr. Craig had been stabbed. Joy Heath’s testimony was basically to the same effect and indicated that she and Lori did not go to the Davenport trailer to make a'phone call until after the stabbing had occurred which was the first time she saw Plunkett.

In any event, defendant exploited the inconsistency in closing argument in an apparent attempt to convince the jury to disbelieve Plunkett’s testimony. When a conflict in testimony arises as to a factual matter, such as this, the question of the credibility of the witnesses rests within the sound discretion of the trier of fact. That factual determination will not be disturbed on review unless clearly contrary to the evidence. See, e. g., State v. Cobbs, 350 So.2d 168 (La.1977); State v. McSpaddin, 341 So.2d 868 (La.1977); State v. Alexander, 328 So.2d 144 (La.1976).

This assignment is without merit.

The conviction and sentence are affirmed.


text:
    Wilbert TABB, Sr. v. LOUISIANA HEALTH SERVICES & INDEMNITY CO.
    No. 61395.
    Supreme Court of Louisiana.
    June 19, 1978.
    Rehearing Denied Aug. 31, 1978.

    Gerald J. Block, Lafayette, for plaintiff-applicant.
    Paul J. Hebert, Cooper & Sonnier, Abbe-ville, for defendant-respondent.

      Sanders, C. J., Tate and Marcus, JJ., would grant a rehearing.

   DIXON, Justice.

Wilbert Tabb, Sr. brought this action against Louisiana Health Services & Indemnity Company (Blue Cross) for medical expenses under a group insurance policy, plus penalties and attorney fees. The trial court granted a summary judgment in favor of defendant and dismissed plaintiff’s action. The Court of Appeal affirmed. Tabb v. Louisiana Health Services & Indemnity Co., 352 So.2d 771 (La.App. 3d Cir. 1977). We granted writs to review that ruling.

On November 7, 1970 Tabb, a deputy sheriff in Lafayette Parish, was shot by a burglar and rendered a paraplegic. At the time of the accident plaintiff was a subscriber in a group hospitalization and medical services insurance policy issued by Blue Cross. Plaintiff’s benefit claims were paid by defendant from the time of the injury until March 31, 1972, at which time the group policy was cancelled. Plaintiff filed this suit on December 9, 1975 seeking recompense for medical expenses incurred after the date of cancellation. After various preliminary pleas, Blue Cross moved for a summary judgment.

The Court of Appeal correctly dealt with one aspect of the motion for summary judgment. Defendant’s supporting affidavits were made on the personal knowledge of the affiant that he, the finance officer for the sheriff’s department, had written Blue Cross to cancel the policy because of other arrangements made in securing insurance coverage. Plaintiff’s affidavit countering the one filed by Blue Cross contained the unsupported statement, without details, that Blue Cross had cancelled the policy, a matter which, if intended as a factual allegation, did not lie within plaintiff-affiant’s knowledge, and would not demonstrate a genuine issue as to a material fact. C.C.P. 966, 967.

The other argument dealt with by the Court of Appeal was plaintiff’s attack on a clause in the policy as violating public policy and certain statutory provisions. In Article XI(d) of the policy it was provided that no subscriber would be paid for medical services received after termination of the contract. The Court of Appeal correctly found that public policy did not prohibit such contractual provision. Plaintiff’s argument that R.S. 22:213 B (7) and (8) invalidate the clause is without merit. R.S. 22:213 applies only to health and accident insurance, which is defined as follows in R.S. 22:6 (2):

“Insurance shall be classified and defined as follows:
(2) Health and accident. Insurance against bodily injury, disablement or death by accident and against disablement resulting from sickness and every insurance appertaining thereto.”

The Blue Cross policy was not a “Health and Accident” policy. It did not insure against injury, disablement or death. It only provided benefits for hospital and medical care.

However, although confused about the application of the statutes governing “Health and Accident” policies, plaintiff’s attack was in the right direction. He claimed (under R.S. 22:213 B (7)) that he should have had notice of the cancellation. He was right, but not because of the authorities he relied on.

The insurance code defines many kinds of insurance but not all kinds. This Blue Cross policy would be classed as “miscellaneous” under R.S. 22:6 (14) and the general provisions of the insurance code would govern, including the provisions of R.S. 22:636 requiring written notice to the insured for cancellation.

The Blue Cross policy does not define the “insured” as do some policies. The policy is issued to the “Lafayette Parish Sheriff Department,” who is called the “employer.” Benefits are to be provided to the “Employees of the Employer.” The employer is not the insured; the employees are. They, alone, receive the benefits. The employer has been held to be an agent of the insurer in a similar ease in 1948, the year the insurance code was adopted.

In Neider v. Continental Assurance Co., 213 La. 621, 35 So.2d 237, the beneficiary named in the certificate under a group life insurance policy sought recovery from the insurance company after the insurance company refused to pay because of the termination of the policy for nonpayment of premiums before the death of the insured. The policy had been issued to the decedent’s employer, the Illinois Central System. According to the terms of the policy, the employer paid the premiums, but each employee was issued a certificate of insurance and contributed to the payment of the premiums through payroll deductions. The court, in reference to the duties of the employer and insurer, stated:

“We feel that the employer owes to the employee the duty of good faith and due care in attending to the policy, and that the employer should make clear to the employee anything required of him to keep the policy in effect, and the time that the obligations are due. In its position as administrator of the policy, we feel also that the employer should be considered as the agent of the insurer, and any omission of duty to the employee in its administration should be attributable to the insurer. For these reasons we are of the opinion that the employer in this case did not discharge properly its duty to the employee to inform him of the time that direct contributions would be required of him; that this omission of duty was the reason that the premium payment for March was made after the expiration of the grace period, and that this omission of duty was attributable to the insurer; therefore, the plaintiff is entitled to recover from the insurer the amount of the policy.” 213 La. at 632-633, 35 So.2d at 240-241. (Emphasis added).

See also Comment, 22 La.L.Rev. 169 (1961); Keeton, Insurance Law 66 (1971).

Neider, therefore, advances the general proposition that the employee is entitled to notice of changes which could affect his coverage, at least when he contributes to the payment of premiums and is issued a certificate of insurance by the insurer. Without such notice, the insured employee could be left without insurance or adequate coverage, without being aware of the need to procure other insurance or to supplement his reduced coverage.

The same reasoning would apply to situations such as the one presented by the instant case. The. plaintiff was entitled to notice of the cancellation, either by the employer or the insurer.

The affidavits introduced in the trial court show that the issue of whether the plaintiff received notice of the cancellation is disputed. The sheriff’s finance officer said he personally told plaintiff about the cancellation; plaintiff said he had no prior notice. Accordingly, there was a substantial issue of material fact, and a summary judgment should not have been granted.

The judgment of the Court of Appeals is reversed and the case is remanded to the trial court for further proceedings not inconsistent with the views expressed herein. The defendant is cast with all costs incurred to date.

      . It appears that a majority of other jurisdictions adhere to the rule requiring notice to the employee when the employee contributes to the payment of the premiums. See Annot. 68 A.L.R.2d 269 (1959). Some jurisdictions, however, distinguish contributory policies from noncontributory policies and reason that because the noncontributory coverage is in effect a gratuity, the employee is not entitled to notice. 68 A.L.R.2d at 270. This latter rule has been criticized because the premium is in reality compensation, whether or not it is actually subtracted from the employee’s pay. See Note, 40 So.Cal.L.Rev. 697 (1967); Note, 49 Yale L.J. 585 (1940). Although we see little reason for the distinction, we do not reach the issue here because of the procedural posture of the case and the paucity of the record.


author: PER CURIAM.

text:
    STATE of Louisiana v. James E. ROBINSON.
    No. 61221.
    Supreme Court of Louisiana.
    June 28, 1978.
    Rehearing Denied Aug. 31, 1978.

      A. J. Boudreaux, Staff Appeals Counsel 24th Judicial Dist. Indigent Defender Bd., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., K. L. Sanders, Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Gretna, for plaintiff-appellee.
   PER CURIAM.

Defendant James E. Robinson was charged by bill of information with the March 30,1974 aggravated battery of Diane Johnson in violation of La. R.S. 14:34. On June 4, 1974, defendant was tried before a jury of five persons and found guilty as charged. Subsequently the trial court sentenced the defendant to serve five (5) years at hard labor in the custody of the Department of Corrections with credit for time served. The defendant now appeals his conviction and sentence to this Court.

We have reviewed defendant’s three assignments of error and find them to be without merit. The only assignment of error requiring comment is that relative to the constitutionality of defendant’s trial before a jury composed of only five persons. In Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978), the United States Supreme Court held that “the purpose and functioning of the jury in a criminal trial is seriously impaired, and to a constitutional degree, by a reduction in size to below six members” and struck down the conviction of a defendant who was tried before a five-person jury pursuant to Georgia law. While under this newly developed constitutional rule trial before a jury composed of only five persons is impermissible we have determined, after review of the decisions by the United States Supreme Court in this area, that the rule should not be applied retroactively to convictions obtained by juries impanelled prior to the date of the Ballew decision. See. Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977); Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975); DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968). Thus, since at the time of the commission of the instant offense and the trial in connection therewith, Louisiana law authorized trial before a jury composed of five persons when the offense charged was La. R.S. 14:34, aggravated battery, La.Const., Art. 1, § 9 (1921); La.Const., Art. 7, § 41 (1921); La.C.Cr.P. art. 782 (1966), defendant’s conviction by that jury is valid.

Accordingly, defendant’s conviction and sentence are affirmed.

      . The law in Louisiana now provides that persons charged with relative felonies shall be tried before a jury of six persons, five of whom must concur to render a verdict. La.Const., Art. 1, § 17 (1974); La.C.Cr.P. art. 782 as amended by Acts 1975, 1st Ex. Session, No. 16, § 1.


author: DENNIS, Justice. PER CURIAM.

text:
    STATE of Louisiana v. Aaron PAYTON and Byron G. Coulon.
    No. 62388.
    Supreme Court of Louisiana.
    June 30, 1978.
    On Rehearing Aug. 18, 1978.

      William J. Guste, Jr., Atty. Gen., Barbara A. Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Thomas Chester, Dennis J. Waldron, Asst. Dist. Attys., for plaintiff-appellant.
    Jay C. Zainey, New Orleans, for Aaron M. Payton.
    John Wilson Reed, New Orleans, for Byron Coulon.
   DENNIS, Justice.

The ultimate issue raised in this review of criminal pre-trial proceedings is whether the merger of the existing capital murder sentence procedure, La. R.S. 14:30, La. C.Cr.P. art. 905 et seq., and the new second degree murder statute, La. R.S. 14:30.1(B), deprives a defendant of his right to a fair trial or exposes him to cruel and unusual punishment. The trial court refused to sustain defendant Byron Coulon’s motion to quash but granted partial relief by declaring unconstitutional the new second degree murder statute, La. R.S. 14:30.1(B). The State appealed, La. Const. 1974, art. 5, § 5(D), contending that the legislature’s combination of statutes pertaining to first degree murder, second degree murder and capital sentences does not offend any concept of fundamental fairness. Defendant Coulon sought writs, which we granted to review his complaint that the first degree murder death penalty should be judicially reprobated because the statutory scheme for its imposition fails to comply with the requirement of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), that standardless jury discretion be replaced by procedures guarding against arbitrary or capricious imposition of death sentences.

For the reasons hereinafter assigned we conclude that, as strictly construed in the light of governing fundamental principles, one aspect of the legislation must be declared invalid, but the remainder of the statutory design is severable and constitutionally tolerable. Although the legislative techniques employed in adding the new second degree murder offense to our law raise serious questions, we cannot upon this our first examination say that the entire enactment was so ill advised as to warrant judicial condemnation.

Before considering the issues presented it is necessary to understand the Louisiana statutory scheme for the imposition of the death penalty existing prior to the enactment of the new second degree murder law. In Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), the United States Supreme Court held that Louisiana legislation reinstituting the death penalty failed to provide a constitutionally adequate response to the rejection by Furman of unbridled jury discretion in the imposition of capital sentences. Because the statutes lacked standards to guide the jury in selecting those among first degree murderers who should receive the death penalty, thus plainly inviting the jurors to disregard their oaths and choose a verdict for a lesser offense whenever they felt the death penalty was inappropriate, the statutes failed to provide adequate safeguards against the arbitrary and capricious imposition of death sentences. After the Roberts decision, the legislature in 1976 redefined first and second degree murder, provided specific procedures to be followed in determining the sentence to be imposed for a capital offense, and provided for mandatory review of death sentences by this Court.

The Louisiana statutory scheme, apparently modeled on the Georgia statutes which were upheld in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), defines first degree murder as a homicide committed with specific intent to kill or to inflict great bodily harm. The penalty for the crime is death or life imprisonment without parole, probation or suspension of sentence in accordance with the recommendation of the jury. La. R.S. 14:30.

The capital defendant’s guilt or innocence is determined in the traditional manner in the first stage of a bifurcated trial. The trial judge is required to instruct the jury as to the law applicable to the charged offense and to each lesser included offense. La. C.Cr.P. art. 803.

The lesser included offense of second degree murder was redefined in 1976 as a homicide committed when the offender is attempting or perpetrating any of certain enumerated felonies, even though he has no intent to kill. The penalty for second decree murder was set at life imprisonment at hard labor without eligibility for parole, probation or suspension of sentence for a period of forty years. La. R.S. 14:30.1.

After a verdict of guilty to first degree murder, a sentencing hearing is conducted before the same jury. La. C.Cr.P. art. 905 et seq. The sentence will be life imprisonment unless the jury finds unanimously and beyond a reasonable doubt at least one statutorily defined “aggravating circumstance.” The aggravating circumstances are:

«* * * (a) The offender was engaged in the perpetration or attempted perpetration of aggravated rape, aggravated kidnapping, aggravated burglary, or armed robbery;
(b) The victim was a fireman or peace officer engaged in his lawful duties;
(c) The offender was previously convicted of an unrelated murder, aggravated rape, or aggravated kidnapping;
(d) The offender knowingly created a risk of death or great bodily harm to more than one person;
(e) The offender offered or has been offered or has given or received anything of value for the commission of the offense;
(f) The offender at the time of the commission of the offense was imprisoned after sentence for the commission of an unrelated forcible felony;
(g) The offense was committed in an especially heinous, atrocious or cruel manner.” La. C.Cr.P. art. 905.4.

Having found an aggravating circumstance, however, the jury is not required to impose the death penalty. Instead, it is merely authorized to impose it after considering evidence of “any mitigating circumstances.” Unless the jury determines unanimously that the death penalty should be imposed, the defendant will be sentenced to life imprisonment without parole, probation or suspension of sentence. In the event the jury imposes the death penalty, it must designate in writing the aggravating circumstance which it found to exist beyond a reasonable doubt.

Review by this Court is provided for in every case in which the death penalty is imposed. To assist it in deciding whether to sustain the death penalty this Court requires by rule that it be supplied, in every case, with a verbatim transcript of the sentencing hearing and a report from the trial judge in the form of a standard questionnaire. In deciding whether the sentence of death is to be sustained in any given case, this Court shall determine if the sentence is “excessive.”

The questions presented in the instant case were created in 1977 when the legislature added a new, second definition of second degree murder:

“The killing of a human being when the offender has a specific intent to kill, under circumstances that would be first degree murder under Article 30, but the killing is accomplished without any of the aggravating circumstances listed in Article 905.4 of the Louisiana Code of Criminal Procedure.” La. R.S. 14:30.1(B).

The additional definition of second degree murder makes it possible for a person who commits an unaggravated, intentional homicide to be convicted of, or plead guilty to, a lesser offense and receive a life sentence parolable after forty years without the necessity of a capital sentencing hearing. Before the second definition was added, a homicide committed with a specific intent to kill, but without aggravating circumstances, was punishable as first degree murder by life imprisonment without possibility of parole, probation or suspension of sentence, only after a sentencing hearing in which the jury failed to find an aggravating circumstance.

The passage of the new second degree murder statute evidently was impelled both by humanitarian arguments against subjecting all convicted first degree murderers to the capital sentencing hearing, as well as by the practical need for a vehicle to facilitate plea bargains, convictions and sentenc-ings in murder cases devoid of aggravating circumstances. Defendant does not quarrel with the underlying motives for the enactment, but he contends that a logical interpretation of the statute will either erase the effect of the bifurcated trial, the only capital sentencing procedure to pass constitutional muster by the Supreme Court, see, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); or permit arbitrary and .capricious imposition of the death penalty.

Defendant argues that a new second degree murder law defining the crime as a first degree murder accomplished without aggravating circumstances impliedly amends the definition of first degree murder to require proof of at least one aggravating circumstance as an essential element of the capital offense; accordingly, he contends the State would be entitled to introduce any and all evidence pertaining to the circumstances of the offense and the character and propensities Of the offender at the guilt or innocence portion of the trial. If the statute were to be interpreted to allow the general introduction of such evidence we agree that it would be unconstitutional.

The Supreme Court in Gregg v. Georgia, supra, acknowledged that much of the information that is relevant to the sentencing decision may have no relevance to the question of guilt, or may even be extremely prejudicial to a fair determination of that question. 428 U.S. at 190, 96 S.Ct. 2909. The Court noted that in other situations it had concluded that a jury cannot be expected to consider certain evidence on one issue, but not another, see, e. g., Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and suggested that a bifurcated procedure — one in which the question of sentence is not considered until the determination of guilt has been made — is the best answer. 428 U.S. at 190, 96 S.Ct. 2909. See, A.L.I. Model Penal Code, § 201.6, Comment 5, pages 74-75 (Tentative Draft No. 9, 1959). We agree that for the determination of sentences, justice generally requires that there be taken into account the circumstances of the offense together with the character and propensities of the offender, Gregg v. Georgia, 428 U.S. at 190, 96 S.Ct. 2909; Pennsylvania ex rel Sullivan v. Ashe, 302 U.S. 51, 58 S.Ct. 59, 82 L.Ed. 43 (1937), but the state constitutional due process and fair trial guarantees would not allow the legislature to enact laws permitting the unregulated introduction of such evidence contrary to the established rules of admissibility during the trial with respect to guilt or innocence. The rules of evidence and certain of the constitutional safeguards have a common core, i. e., an abiding concern that criminal convictions be had only upon the basis of relevant and trustworthy evidence. Legislation at cross purposes with this fundamental concern cannot be sanctioned by this Court. La. Const. 1974, art. I, §§ 2 and 16; State v. Prieur, 277 So.2d 126, 130 (La.1973); cf. Hills v. Henderson, 529 F.2d 397, 401, footnote 6 (5th Cir. 1976); Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975).

As we construe the new statutory scheme, however, it may be applied constitutionally by strictly adhering to the statutory language and by severing one part which would allow the introduction of im-permissibly prejudicial evidence prior to the jury’s determination of guilt or innocence.

By defining second degree murder as an unaggravated, specific intent homicide, the legislature clearly intended by implication to remove this type of conduct from the definition of first degree murder and to redefine the capital offense as a specific intent homicide accomplished with a statutorily prescribed aggravating circumstance. The trouble arises because the lav/makers chose to define the crucial aggravating circumstances merely by reference to Code of Criminal Procedure Article 905.4, which sets forth a list of circumstances of the offense and indications of the character and propensities of the offender to be focused on in the sentencing hearing. A careful reading of the statutes indicates, however, that the lawmakers intended to refer only to such aggravating circumstances with which “the killing is accomplished.” La. R.S. 14:30.1(B). Since the Article 905.4 list contains, in addition to circumstances by which the offense is accomplished, guidelines for evaluating the character and propensities of the offender, see, La. C.Cr.P. art. 905.2; Gregg v. Georgia, 428 U.S. at 190, 96 S.Ct. 2909, we conclude that the legislature did not intend to incorporate by reference the entire Article 905.4 list as part of the new first and second degree murder definitions. Specifically, it is apparent that the defendant’s previous convictions of unrelated crimes, Article 905.4(c), do not constitute a circumstance by which the offense is accomplished, but are a means of determining thé character and propensity of the offender, and therefore are to be excluded from the murder definitions.

On the other hand, the fact that an offense was committed in an “especially heinous, atrocious or cruel manner,” Article 905.4(g), is a circumstance of the offense which the legislature evidently intended to include in the substantive crime definitions. By including this element, however, the legislature acted improperly and endangered the fair determination of a great many murder prosecutions. The potential for abuse in making heinousness, atrociousness, or cruelty an element of the offense is both readily apparent and virtually unlimited. Prosecuting attorneys would be encouraged, if not compelled, by such a rule to introduce each and every gruesome photograph and to elicit repetitively from State witnesses lengthy accounts of all grisly details related to the crime, regardless of the prejudicial effect upon the jury, as a legitimate effort to prove the heinous manner in which the crime was committed. There is great danger that the jury would be influenced improperly by such evidence in its determination of whether the defendant committed the offense, a question which fundamental fairness demands must be decided only upon relevant and trustworthy evidence. Moreover, although the question of whether the crime was committed in an especially heinous, atrocious or cruel manner is an acceptable factor, among others, to be considered for purposes of sentencing, Gregg v. Georgia, 428 U.S. at 201, 96 S.Ct. 2909; Proffitt v. Florida, 428 U.S. at 254-6, 96 S.Ct. 2960, these terms are too vague to serve as constitutionally adequate elements within the definition of a criminal offense. The constitutional guarantee that an accused shall be informed of the nature and cause of the accusation against him requires that penal statutes describe unlawful conduct with sufficient particularity and clarity that ordinary men of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto. La. Const.1974, Art. I, § 13; Connick v. Lucky Pierre's, 331 So.2d 431 (La.1976); State v. Lindsey, 310 So.2d 89 (La.1975); State v. Dardar, 257 La. 191, 241 So.2d 905 (1970). For these reasons we conclude that the attempt to adopt the heinous manner of commission language contained in Article 905.4(g) as an essential element of first and second degree murder offenses offends the state constitutional guarantees of due process and fair trial. However, it is not necessary for us to declare unconstitutional the entire statute by which the legislature amended the first and second degree murder definitions. Act 121 of 1977, which amended the second degree murder definition, expressly provided that

“[i]f any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items or applications of this Act which can be given effect without -the invalid provisions, items or applications, and to this end the provisions of this Act are hereby declared severable.”

We find that paragraph (g) of Article 905.4 is separable because the other paragraphs of the article are independent of it and can be given effect without the invalid portion. Accordingly, we declare invalid only the legislative attempt to define first degree murder as a specifically intentional homicide “committed in an especially heinous, atrocious or cruel manner.”

The sum of the legislative and judicial action limits capital murder to specifically intended homicides committed in five situations: murder committed in the course of aggravated rape, aggravated kidnapping, aggravated burglary, armed robbery, or attempts to commit these crimes; murder of a fireman or peace officer engaged in his lawful duties; murder by which the offender knowingly created a risk of death or great bodily harm to more than one person; murder committed for remuneration; murder committed by a prison inmate while .serving sentence for a felony. Any other specifically intended homicide constitutes second degree murder. Each of the five classes of first degree murders is retained as an aggravating circumstance of the offense upon which the jury shall focus in the sentencing hearing. In addition the jury shall determine, in sentencing, if two other circumstances of the offense or of the character and propensities of the offender exist, i. e., whether the offender was previously convicted of an unrelated murder, aggravated rape, or aggravated kidnapping, and whether the offense was committed in an especially heinous, atrocious or cruel manner. Therefore, the second phase of the bifurcated trial, the procedure for a capital sentencing hearing, remains the same as it was when originally enacted.

The capital sentencing system which has evolved by virtue of the recent amendment of the second degree murder statute is strikingly similar to the provisions of the Texas penal code which were upheld by the Supreme Court in Jurek v. Texas, supra, a companion case of Gregg v. Georgia, supra. The defendant was sentenced to death after being convicted of capital murder, which was defined as an intentional or knowing homicide committed in any of five situations: murder of a peace officer or fireman discharging his duty;' murder in the course of kidnapping, burglary, robbery, aggravated rape, arson, or attempts to commit these crimes; murder committed for or instigated by remuneration; murder committed while escaping or attempting to escape from a penal institution; and murder of a prison employee by an inmate. See, Vernon’s Texas Code Ann., Penal Code § 19.03 (1973). Under the Texas capital sentencing procedure, subsequent to the return of a verdict finding a person guilty of one of the above categories of murder, the jury was required in a separate proceeding to answer three questions:

“ ‘(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
“ ‘(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
“ ‘(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.’ Art. 37.071(b) (Supp.1975-1976).” Jurek v. Texas, 428 U.S. at 269, 96 S.Ct. at 2955.

If a jury found that the State had proved beyond a reasonable doubt that the answer to each of the three questions was yes, then the death sentence would be imposed. If the jury found that the answer to any question was no, then a sentence of life imprisonment resulted. See, Jurek v. Texas, 428 U.S. at 269, 96 S.Ct. 2950.

Although Texas had not adopted a list of statutory aggravating circumstances the existence of which could justify the imposition of the death penalty as had Georgia, see, Gregg v. Georgia, supra, and Florida, see, Proffitt v. Florida, supra, a plurality of the Supreme Court concluded that the state’s action in narrowing the categories of murders for which a death sentence may ever be imposed serves much the same purpose. Jurek v. Texas, 428 U.S. at 270, 96 S.Ct. 2950. Because the Texas law essentially required that one of five aggravating circumstances be found before a defendant could be found guilty of capital murder, and that in considering whether to impose a death sentence the jury could be asked to consider whatever evidence of mitigating circumstances the defense could bring before it, it appeared, according to the opinion of the Court, that the Texas capital-sentencing procedure “guides and focuses the jury’s objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death.” 428 U.S. at 274, 96 S.Ct. at 2957.

The defendant contends that the changes in the Louisiana murder definitions nevertheless reintroduce in capital sentencing the arbitrariness and capriciousness condemned by Furman. He argues that eliminating murder by a previously convicted violent felon and murder committed in a heinous manner as categories of capital murder effectively abrogates the death penalty for categories in which, across the board, the strongest arguments for death can be made. Defendant is correct in his assessment of the statutory scheme’s effect upon these two criminal categories. If the only provable circumstance of the offense or of the character and propensities of the offender pertain to either prior convictions of unrelated violent felonies or heinousness, no evidence of an aggravating circumstance by which the offense was accomplished can be introduced at the guilt phase of the trial, and the jury is required by its oath to return a verdict of second degree murder, without exposing the defendant to the possibility of the death penalty. Even if defendant has correctly assessed the relative demerits of the various murder categories, however, there appear to be sufficient doubts and ramifications growing out of the problem to recommend that it be decided by legislative policy rather than constitutional law. The Texas capital sentencing procedure, which was upheld by the Supreme Court, see, Jurek v. Texas, supra, does not allow the jury, in the trial of a person who has committed an intentional homicide, to return a verdict of capital murder, based solely on either prior convictions or heinousness. Instead, these factors are relegated to the status of circumstances to be considered in imposing sentence. The Supreme Court decision is not dispositive of this case, however, because the precise arguments made here apparently were not presented in the high court. Nevertheless, in our opinion the exclusion of the two classes of murder from capital crime status does not offend the principles laid down in Furman and its progeny. The exclusion of prior convictions and heinousness as essential elements of capital murder is rationally based on the necessity of preventing the jury from being misled in deciding the question of guilt or innocence by extremely prejudicial evidence or by a highly subjective and vague statutory crime definition. The removal of the two categories of murders from capital offenses does not appear in any way to increase the risk that the death penalty would be imposed on a capriciously selected group of offenders, or to frustrate the requirement that the decision to impose it must be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant. See, Gregg v. Georgia, 428 U.S. at 199, 96 S.Ct. 2909.

Por the reasons assigned, the judgment of the trial court is set aside, the statutes pertaining to first degree murder, second degree murder and capital sentences, as construed herein, are upheld against the instant constitutional attacks, and this case is remanded for further proceedings consistent with the views expressed in this opinion.

SUMMERS, J., dissents.

PER CURIAM.

We granted a limited rehearing in this case to consider an oversight in our original opinion. Defendant contends that in addition to La.C.Cr.P. Art. 905.4(c) and (g), that we also should have declared that Art. 905.-4(f) is to be excluded from the first degree murder definition. Upon further reflection, we conclude that he is correct in arguing that the rationale of our original opinion requires this result. Art. 905.4(f) is directed to a determination of the character and propensities of the offender, i. e. whether the offender at the time of the offense was imprisoned after sentence for the commission of an unrelated forcible felony. It does not focus on aggravating circumstances with which the killing is accomplished. Art. 905.4(f), therefore, is to be distinguished from the elements of capital crime definitions approved in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), such as murder committed while escaping from a prison, or murder of a prison employee by an inmate.

Accordingly, we conclude that the legislature did not intend to incorporate by reference Article 905.4(f) as part of the first degree murder definition, and our original opinion is amended in order to declare that Article 905.4(f) is excluded from the first degree murder definition.

For the reasons assigned, our original opinion and decree, as amended, are reinstated, reserving unto the State the right to apply for a rehearing with respect to the amendment only.

SUMMERS, J., dissents.

      . La. R.S. 14:30.1(A); the other lesser included offense is manslaughter, La. R.S. 14:31. La. C.Cr.P. art. 814(A)(1).

      . La. C.Cr.P. art. 905.3.

      . La. C.Cr.P. art. 905.3. La. C.Cr.P. art. 905.5 provides:
      “The following shall be considered mitigating circumstances:
      “(a) The offender has no significant prior history of criminal activity;
      (b)The offense was committed while the offender was under the influence of extreme mental or emotional disturbance;
      (c) The offense was committed while the offender was under the influence or under the domination of another person;
      (d) The ó'ffense was committed under circumstances which the offender reasonably believed to provide a moral justification or extenuation for his conduct;
      (e) At the time of the offense the capacity of the offender to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication;
      (f) The youth of the offender at the time of the offense;

        (g) The offender was a principal whose participation was relatively minor;
      (h) Any other relevant mitigating circumstance.”

      . La. C.Cr.P. art. 905.7.

      . La. C.Cr.P. art. 905.9.

      . La. Supreme Court Rules, rule XXVIII(2), (3) and Appendix B.

      . La. C.Cr.P. art. 905.9; La. Supreme Court Rules, rule XXVIII(l).

      . La. R.S. 14:30.

      . La. C.Cr.P. arts. 905, 905.3, 905.6.

      . While it is true that criminal laws ordinarily should be literally construed, this rule is not to be applied with such unreasonable technicality as to defeat the purpose of all rules of statutory construction, which purpose is to ascertain and enforce the true meaning and intent of the statute. State v. Bonner, 193 La. 402, 190 So. 626 (1939). The history of the legislation, as well as other statutes in pari materia, may weigh heavily upon the issue of the meaning to be given a criminal statute. State v. Jewell, 345 So.2d 1166 (La.1977); State v. Davis, 208 La. 954, 23 So.2d 801 (1945); see, Sutherland, Statutes and Statutory Construction, § 59.08 (Sands ed. 1974).
      As defendant is forced to acknowledge, the definition of a lesser offense by reference to the definition of a more serious crime is not unknown to Louisiana criminal law. For exam-pie, simple burglary, La.R.S. 14:62, is defined as the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or theft therein, other than as set forth in La.R.S. 14:60, the aggravated burglary definition.

      . Defendant also argues that the first degree murder statute imposes a lesser burden on the state with regard to proof of specific intent, than does the second degree murder statute because the latter requires specific intent to kill whereas capital murder includes either specific intent to kill or to inflict great bodily harm. The defendant has ignored the full text of the second degree murder statute’s requirement of specific intent, viz., “a specific intent to kill, under circumstances that would be first degree murder under Article 30 .” Although the second degree murder definition does not specifically include a homicide with a specific intent to inflict great bodily harm, this conduct is reasonably encompassed within “[t]he killing of a human being . . . under circumstances that would be first degree murder under Article 30 . . . .” La. R.S. 14:30.1(B).

      . The potential for abuse is great in all cases where material objects, e. g., morgue photographs, bloody clothing, and weapons are exhibited to the jury. The sight of deadly weapons and cruel injuries tends to overwhelm reason and to associate the accused with the atrocity without sufficient evidence. 4 Wigmore, Evidence, § 1157 (Chadbourne rev. ed. 1972); State v. Gilmore, 332 So.2d 789 (La.1976). More safeguards are needed in capital cases, rather than exacerbation of the potential for abuse by making the heinous manner in which the offense was committed an essential element of the crime.

      . La. Const.1974, Art. I, §§ 2, 13, 16.

      . State v. Green GMC Van, 354 So.2d 479 (La.1977); State v. Johnson, 343 So.2d 705 (La.1977).


author: TATE, Justice. SANDERS, Chief Justice MARCUS, Justice

text:
    William A. ROE, Vernon Dowdy and Jerry Blanchard, Plaintiffs-Appellees-Respondents, v. Dallas Arnold PICOU, Jr., Defendant-Appellant-Relator.
    No. 62816.
    Supreme Court of Louisiana.
    Aug. 18, 1978.

      George M. Strickler, Jr., New Orleans, for defendant-appellant-relator.
    Chalin 0. Perez, New Orleans, Michael Kirby, Port Sulphur, Luke A. Petrovich, Buras, for plaintiffs-appellees-respondents.
   TATE, Justice.

By certain proceedings in district court, the defendant Picou’s notice of candidacy for a school board election was held to be deficient, and he was disqualified as a candidate. The court of appeal affirmed. 361 So.2d 1328 (La. 4th Cir., 1978). We granted Picou’s application for certiorari to review that judgment and also for certain supervisory relief. 361 So.2d 879.

Picou, a resident of Belle Chasse in Plaquemines Parish, filed his notice of candidacy for the office of school board, La. R. S. 18:463 (1976), with the parish clerk of court, La. R. S. 18:462, a proper qualifying official for local candidates. The notice of candidacy was held to be deficient because he designated the ward number of the school board position he sought in accordance with a parish regulation which had been invalidated by the federal courts. However, in the light of the federal invalidation of the parish regulation, a different ward number for the Belle Chasse district would be correct.

The true issue of this litigation is whether the defendant Picou had, therefore, “failed to qualify for the primary election in the manner prescribed by law.” La. R. S. 18:492(1).

La. R. S. 18:463 requires that the notice of candidacy shall, among other particulars, state “the office he seeks.” Arguably, by this incorrect designation of candidacy for the wrong-numbered ward, the candidate did not state such office, as required by the cited statute.

I.

Prior to June 11,1970, the school board of Plaquemines Parish was composed of ten members, elected from ten single-member districts. Under the ten -ward system, the relator Picou is a resident of Ward 6, in which Belle Chasse is situated.

On July 11, 1970, the school board adopted a resolution by which the school board was composed of five members elected par-ishwide, but with one member to be a resident of five wards earlier created for parish-government purposes. Under the five -ward system, Belle Chasse is situated in Ward 5.

The relator Picou, stating that he was domiciled in Belle Chasse (and was a duly qualified elector of Ward 5, Section 3B, Parish of Plaquemines), stated in his notice of candidacy that he qualified as “a candidate in the Primary Election to be held on the 16th day of September, 1978, for election to the office of School Board Member, Ward 5, Plaquemines Parish.” (Italics ours.)

If the five-ward system were still in effect, this notice of candidacy of July 14, 1978 undoubtedly complied with legal requirements for qualifying as a candidate for the school board from the district (Ward 5) which included Belle Chasse, the relator’s place of domicile.

However, before the qualifying date, the federal courts had invalidated the June 11, 1970 resolution for at large-elections for the five-ward system and had enjoined implementation of any method of electing school board members other than from the ten-ward system in effect prior to June 11, 1970. Broussard v. Perez, 416 F.Supp. 584 (E. D. La. 1976), affirmed 572 F.2d 1113 (C.A. 5 1978). By virtue of this decree, as to which no stay order has been issued, Belle Chasse is in Ward 6 (not Ward 5, his designated ward in his notice of candidacy) for school board election purposes.

Because the federal court order applied only to school board elections, Belle Chasse was situated in Ward 5 for certain local-government election purposes (Parish Council, for instance) where the five-ward system applied, and in Ward 6 for other purposes (the school board, for instance) where the ten-ward system applied.

The relator Picou filled out his notice of candidacy by reference to the registration certificate which had been issued to him by the parish registrar of voters. This shows that he is registered to vote in Ward 5. He and a companion testified that they asked the clerk of court, with whom they qualified, if the ward reflected by the registration certificate was correct for the notice of candidacy. That official did not recall the query and did not think it had been made.

II.

In this court, the relator Picou concedes that — since no stay order was obtained of the federal court appellate decree of May 12, 1978 invalidating the five -ward system —, the ten -ward system applies to the primary election of September 16, 1978, for which he qualified as a candidate for the school board for the ward (incorrectly designated by him as Ward 5) in which Belle Chasse, his domicile is located.

He argues, however, that in view of his unmistakable intent to qualify for the Belle Chasse school board position, as well as of the understandable confusion as to the correct numerical designation of that district, his notice of candidacy should be held to be in substantial compliance with the requirements of La. R. S. 18:463; and he requests supervisory relief so decreeing.

The record reflects the official confusion and the lack of official information available to the public concerning the correct designation of the ward-number for the school board election scheduled to be held September 16, 1978.

The two incumbent school board members up for reelection had, on July 12 (the same date as Picou qualified, who testified he qualified for the “Ward 5” position in reliance upon this), registered in accordance with their ward numbers under the five-ward system. The clerk of court testified that he had not seen the federal decree enjoining election under any other system than the ten-ward system until 4:45 p. m. on July 14, fifteen minutes before the qualifying time closed. The president of the board of election supervisors (who was also president of the parish governing body) stated that, when the incumbent Kent brought his notice of candidacy to him after he had first qualified on July 12, he became concerned because of his knowledge of the federal-court decree (in the proceedings to which he was a party); therefore, he consulted the school board attorney and advised Kent to re-qualify under the ten-ward system. We note that both the clerk of court and the president of the board of election supervisors (along with the secretary of the latter) are the election officials with whom local candidates must qualify for election. La. R. S. 18:462(B).

Additionally, because of conflicting application of the five-ward and the ten-ward systems to various local offices, a parish voter is in effect registered in each system’s ward classifications. The registrar’s certificate issued to the relator Picou shows him to be registered in Ward 5, Precinct 3B (i. e., under the five-ward system). Nevertheless, the registrar’s certificate introduced in evidence (but not issued to Picou) shows that he is a registered voter in both Ward 5 of the five-ward system and Ward 6 of the ten-ward system.

The official confusion that surrounded the issue is illustrated by the actions of the incumbent, Robert Kent, a school board member for twelve years, who wished to qualify for re-election, and whom the relator Picou intended to oppose in the election of September 16,1978. Likewise, a resident of Belle Chasse (who similarly had different ward-numbers applicable to his registration, depending upon which local office was involved), the veteran official initially also qualified to run for the Belle Chasse position under the “Ward 5” designation. It was only after the president of the parish board of election supervisors had secured legal advice from the parish school board attorney, a process apparently taking nearly two days, that this incumbent was advised to re-qualify under the ten-ward system (i. e., for the Belle Chasse district under the “Ward 6” designation). He was able to do so only ten minutes before qualifications closed.

We need not detail Picou’s efforts to secure from election officials information as to the correct designation of the office he sought as a candidate for the member of the school board representing Belle Chasse. It is sufficient to note that substantial evidence reflects the lack of public notice or knowledge of the effect of the federal-court decree and that election officials were unable to or did not furnish clarifying information of such effect.

III.

Thus, Belle Chasse was variously officially classified as being both in Ward 5, Precinct 3 a and b (under the five-ward system) and also in Ward 6, Precinct 1 (under the ten-ward system). Under these circumstances, a notice designating the candidacy by reference either to Ward 5 or Ward 6, which unmistakably shows that the candidate intended to qualify for the district in which Belle Chasse is located, substantially complies with the requirement of La. R. S. 18:463 that such notice of candidacy by a candidate state “the office he seeks.”

In reaching this conclusion, we also take into consideration Picou’s unmistakable intent manifested to election officials that he intended to be a candidate for the school board from the district including his residence at Belle Chasse, as well as the understandable public confusion and the lack of official information by election officials available to the public concerning the correct designation of the Belle Chasse school district.

As was stated under somewhat similar circumstances in Rousseau v. Democratic Parish Executive Committee, 164 So. 175, 182 (La.App. 1st Cir. 1935): “The declaration informed the [qualifying officers] of all that they were required to know under the statute in order to certify the candidacy of the party and properly allocate him as a candidate for office from that particular ward.”

In Rousseau, the court rejected the attempt to disqualify candidates and to deprive the people of a choice in an election, based solely upon technical and non-confusing alleged technical inadequacies (omissions of ward-number designations) in the notices of candidacy. The Rousseau court held that any ambiguity in the designation of the office for which the candidates sought to qualify was explained by the candidates’ declarations of residence, since these candidates could only run from the ward of their respective residences. 164 So. 181-182.

As in Rousseau, we reject any disqualification of a candidate because of technical alleged inadequacies in the description of the office sought, where both the candidate and his opponent were clearly aware of his intent to qualify for the office he sought, which was described with sufficient particularity as unmistakably to designate it as the sole position available for candidacy to a resident of Belle Chasse, such as relator described himself.

In similarly rejecting technical objections to the sufficiency of a notice of candidacy, we stated long ago that the election laws do not “indicate that it was the purpose of the law makers to obstruct with mere technical difficulties, the exercise of the right, which every citizen has, to seek the approval of his political associates, or of the public at large. To the contrary, the whole spirit of the legislation is to encourage the multiplication of worthy candidates for nominations to public office, in order that the body of voters constituting a political party, or constituting the electorate at large, may have the benefit of a choice, and not be compelled to accept candidates chosen by the minority or thrust upon them in some other way.” Langridge v. Dauenhauer, 120 La. 450, 452-53, 45 So. 387, 388 (1908).

Decree

For the reasons assigned, we reverse the judgments of the previous courts disqualifying the defendant Picou as a candidate in the primary election to be held on September 16, 1978 in the Parish of Plaquemines, State of Louisiana, for the office of school board member, and ordering that his name shall not be printed on the ballot; and we order, adjudge, and decree that there be judgment in favor of the defendant, Dallas Arnold Picou, Jr., and against the plaintiffs.

It is further ordered, adjudged, and decreed that, under the circumstances shown, the notice of candidacy of Dallas Arnold Picou, Jr., Belle Chasse, Louisiana, is in substantial compliance with the requirements of La. R. S. 18:463 and, accordingly, that Allen LoBrano, Clerk of Court, and Paul Hardy, Secretary of State, are ordered to accept this timely notice of candidacy as qualifying Dallas Arnold Picou, Jr. of Belle Chasse as a candidate in the primary election to be held on the sixteenth day of September, 1978, for the office of member, Plaquemines Parish School Board, Ward 6 of the Ten-Ward System in effect prior to the adoption of Plaquemines Parish Ordinance #81 and prior to June 11,1970, with said officials being also ordered to accomplish all ministerial duties requisite to effectuate this order.

The plaintiffs-respondents are cast with all costs of these proceedings.

JUDGMENTS OF PREVIOUS COURTS DISQUALIFYING CANDIDATE ARE REVERSED; CANDIDATE IS ORDERED TO BE QUALIFIED FOR PRIMARY ELECTION FOR SCHOOL BOARD MEMBER TO BE HELD ON SEPTEMBER 16, 1978.

SANDERS, C. J., dissents and assigns reason.

SUMMERS, J., dissents for the reason set forth in the opinion of the Court of Appeal, see 361 So.2d 1328.

MARCUS, J., dissents and assigns reasons.

SANDERS, Chief Justice

(dissenting).

Relator, Picou, qualified as a candidate for School Board in Ward 5 of Plaquemines Parish. On a disqualification petition, both lower courts disqualified him as candidate in that ward. The courts found that he was not a resident of Ward 5 under the 10-ward system and that the 5-ward system had been invalidated. In my opinion, that judgment is correct, and all courts agree.

In this Court, the majority, instead of affirming the judgment, undertakes to reform the qualification document so that it operates as a qualification for school board in Ward 6. This judicial action is unprecedented. In my opinion, it opens the door to future abuses of our election procedures.

The Court of Appeal correctly disposed of the case, and I would affirm its judgment. See Roe et al. v. Picou, 361 So.2d 879 (1978).

For the reasons assigned, I respectfully dissent.

MARCUS, Justice

(dissenting).

Majority rejects disqualification of a candidate because of technical inadequacy in the description of the office sought, i. e., qualifying as a candidate for school board from Ward 5 instead of Ward 6. Majority finds this to be “substantial compliance” with the law. I disagree. Adequate information was available to Mr. Picou well pri- or to time for qualification that he should have qualified as a candidate for the school board from Ward 6 under the ten-ward system rather than from Ward 5 under the five-ward system. Moreover, there was no showing of bad faith on the part of any of the election officials. Mr. Picou simply mistakenly qualified for the wrong position. In my view, reformation of a candidate’s application for public office by the courts establishes a dangerous precedent. Accordingly, I respectfully dissent.

      . Under the ten-ward system, since Belle Chasse is not in Ward 5, Picou did not possess the qualifications for candidacy to serve Ward 5. School board candidates must be domiciled in the ward or district from which he seeks election. La. R. S. 17:52(1) (1977). The ground of the objection to Picou’s candidacy was that he was not qualified to serve as a school-board member from Ward 5 (i. e., under the ten -ward system), see La. R. S. 18:492(3) (1976), in which he did not reside.

      . I. e., by which the incumbent and Picou were in Ward 6, instead of Ward 5 of the five-ward system.

      . Kent testified that the president informed him he would have the school board attorney check the matter. Two days later (i. e., on July 14, the last day of qualifying), the president telephoned him and advised him to re-qualify on the basis of the ten-ward system (i. e., for the school board position for Ward 6 instead of for Ward 5). He did so at 4:50 p. m., ten minutes before termination of the qualification period.

      . The registrar’s certification of July 24, 1978 states as follows:
      “I hereby certify that Dallas Arnold Picou, Jr. is currently registered in Plaquemines Parish, La. in Ward 5, Precinct 3-B of the five (5) ward system in effect after the adoption of the Plaquemines Parish Ordinance #81 and after June 11, 1970; and of Ward 6, Precinct 1 in the Parish of Plaquemines of the ten (10) ward system in effect prior to the adoption of Plaquemines Parish Ordinance #81 and prior to June 11, 1970.”