author: DIXON, Justice. MARCUS, Justice DENNIS, Justice,

text:
    James S. ARCENEAUX v. Drew DOMINGUE, Jimmy Bearb and Allstate Insurance Company.
    No. 62446.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    Rehearing Denied Jan. 26, 1979.

      L. Lane Roy, Davidson, Meaux, Sonnier & Roy, Lafayette, for defendant-respondent.
    Raleigh Newman, Lake Charles, for plaintiff-applicant.
   DIXON, Justice.

This damage suit arose when plaintiff’s car was struck from the rear by a car owned by Jimmy Bearb and driven by Drew Domingue. There was a jury verdict for the defendants, which was affirmed by the Court of Appeal in an unpublished opinion. We granted writs (359 So.2d 1303 (La. 1978)), and reverse.

Arceneaux, on November 22, 1975, pulled up to stop behind a line of traffic, heard the squeal of tires, as if brakes were being applied, and was struck from the rear by Domingue. The impact drove his car into the vehicle ahead of him. Domingue admitted fault to Arceneaux, but told the police investigator that his brakes had failed, the pedal going to the floor when he tried to use them. The police found nothing wrong with the brakes, could not push the pedal to the floor, and found that they operated properly. Domingue’s passenger, a Mr. Forestier, was not called to testify for Do-mingue, although he had offered on the day before trial.

The police charged Domingue with a traffic violation, but, when defendants objected, plaintiff was not permitted to adduce evidence that Domingue had pleaded guilty.

No effort was made to repair the brakes after the Arceneaux accident. Several days later Bearb had an accident in the same car, testifying that, while trying to park the car, “I was going approximately five miles an hour, and my brakes gave out and I bumped the back of a Volkswagen.” Bearb then parked his car until he could have his brakes fixed.

Defendants’ expert witness (the only one to testify; plaintiff claims his expert was not in court when defendants closed, and the judge denied a brief recess to obtain him. The record before us is silent) testified that “anything can happen to an automobile,” and that sudden brake failure is attributable to a failure of a plunger device in the master cylinder or a loss of brake fluid. Defendants’ expert was the one who had repaired Bearb’s car, but did not remember what had been done. However, a repair ticket or invoice made at the time of the repair showed that nothing had been done to either master. There were three charges: a brake light switch was replaced; a brake cylinder on a wheel was repaired; some brake fluid was placed in the system.

The brake expert testified that Bearb’s car had two master cylinders — one for the front and one for the rear brakes. If one master cylinder failed, the car would still have brakes on the other wheels. There was no evidence of a sudden loss of brake fluid, such as might have been caused by a ruptured hydraulic line.

There is nothing in the record to support the “latent defect” defense except the testimony of Domingue that the brake pedal suddenly and without forewarning went to the floor when he tried to stop, and the testimony of Bearb noted above.

The Court of Appeal assumed that the jury verdict for defendants “was predicated upon the existence of a latent defect in the defendant vehicle.” Then the Court of Appeal purported to apply the rationale of Canter v. Koehring Co., 283 So.2d 716 (La. 1973), and found that, considering the testimony of Bearb, Domingue and the brake expert, there was “no manifest error or abuse of discretion by the jury.”

Standard of Appellate Review of Facts

There seems to be widespread misunderstanding of the holding of Canter v. Koehring Co., supra, concerning the appellate review of facts in Louisiana. It was never our intention to hold that a factual determination of the district court is to be sustained by the Court of Appeal if there is some reasonable evidence to support the finding of the judge or jury. That is the standard for review in criminal cases in this state, where the appellate court does not have the jurisdiction to review facts on the question of guilt or innocence, and it is the standard of review in many common law jurisdictions, where the appeal can be taken on questions of law alone. Robertson, Appellate Review of Facts, 21 La.L.Rev. 402 (1961). In Louisiana courts of appeal have full and complete jurisdiction to review facts.

The Constitution of 1974 provides in Article 5, § 10(B):

“(B) Scope of Review. Except as limited to questions of law by this constitution, or as provided by law in the review of administrative agency determinations, appellate jurisdiction of a court of appeal extends to law and facts.”

As an aid to the exercise of the appellate function of review of facts in civil cases, we attempted to explain, in Canter v. Koehr-ing, supra, without great detail, the appropriate standard. We said that “even though the appellate court may feel that its own evaluations and inferences are as reasonable,” it should not disturb reasonable findings of the trial court when there is conflict in the testimony. We prefaced this observation: “When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.” 283 So.2d 716, 724. (Emphasis added).

We did not foresee that this explanation would be misunderstood to mean that: “There is no manifest error when the evidence before the trier of fact furnishes a reasonable basis for its finding.” We said the appellate court should not disturb this factual finding in the absence of manifest error. The difference is important. “Manifestly erroneous,” in its simplest terms, means “clearly wrong.” We said, then, that the appellate court should not disturb such a finding of fact unless it is clearly wrong. Therefore, the appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong (manifestly erroneous).

Here the jury, if indeed it did predicate its verdict on the existence of a latent defect, was clearly wrong. Not only was the testimony of Domingue and Bearb not supported by other evidence in the record, it was contradicted by all the other evidence on the point. Arceneaux heard the squeal of brakes being applied; the police found the brakes working perfectly; the passenger, available to the defendants, was not produced; plaintiff was prevented from asking Domingue whether he pleaded guilty to a charge of negligent operation of the vehicle; the brake repair revealed nothing indicative of sudden, unexpected failure, or of a latent defect; except for a statement that “anything can happen to an automobile,” defendants’ expert did not support the claim of latent defect.

If the Court of Appeal had applied the proper standard for the review of facts on appeal, it would have concluded that, in spite of the presence of some evidence in the record which, if believed, would have supported the jury verdict, the verdict was clearly wrong (manifestly erroneous).

A lower standard of review in this state would be destructive of the right to appeal in civil cases. This court seldom has occasion to note the practice, but writs are almost never granted by this court on'a contention by the applicant that the Court of Appeal was mistaken in its finding of fact. The record is not before us when we receive an application for writs, and there is never enough time for us to determine facts from a record, at any rate. This court necessarily relies on the factual findings of the Court of Appeal, in most cases, in deciding whether or not to review a judgment of the Court of Appeal. If the Court of Appeal should decide, on an appeal of right from the district court, only that there is some evidence to support the judgment, without determining whether the district court judgment is clearly wrong considering all the evidence, the Louisiana system of review breaks down. The losing litigant may never obtain actual review of the district court judgment, if the issue is factual.

Jury Instructions

Ordinarily, having examined the record and having found the defense of latent defect to be unsupported, the matter would be ended. Here, however, the trier of fact was a jury. The plaintiff complained of the instructions to the jury, and of the denial of his requested instructions, but the Court of Appeal found no error. Because these issues were erroneously decided by the Court of Appeal, it is necessary to discuss them to prevent a repetition of errors in other appeals of jury cases.

The jury was charged that the burden of proof was on the plaintiff to establish by a preponderance of the evidence that the defendants were negligent and that if the plaintiff failed to establish negligence, the defendants could not be held liable. The jury was further instructed that the defendants alleged the proximate cause of the accident to be a failure in the braking system. The trial judge then charged that if the jury found a “latent or unknown defect in the braking system” to be the proximate cause of the accident, and found that the defendants “exercised reasonable care in having the automobile inspected and had no reasonable prior notice of the defective condition,” and were not otherwise at fault, the jury was to return a verdict in favor of the defendants.

The trial judge did not, as requested by the plaintiff, instruct the jury that the burden of proof was upon the defendant when the defense in a case such as this one is latent defect in the braking system. Not since Cartwright v. Firemen’s Insurance Co. of Newark, New Jersey, 254 La. 330, 223 So.2d 822 (1969), has this court had occasion to examine the “latent defect” defense in rear end collision cases. In the Cartwright case there was proof of a broken hydraulic line just before the accident, which allowed the brake fluid to escape, and satisfactory evidence of adequate maintenance and repair to justify a belief on the part of the owner that the brakes would not suddenly fail. This court affirmed the Court of Appeal’s finding that the district court judgment for the defendant was correct. The Court of Appeal opinion stated that “[Hjowever, for latent defects to constitute a valid defense, the proof must be exceptionally strong so as to satisfy certain jurisprudential requirements.” Cartwright v. Firemen’s Insurance Co. of Newark, New Jersey, 213 So.2d 154, 155 (La.App.1968).

Following the Cartwright decision, the Court of Appeal for the Third Circuit in 1971 stated;

“In order for latent defects to constitute a valid defense, the proof must be strong enough to exclude any other reasonable hypothesis as to the cause of the accident except that it resulted from the alleged defects. Cartwright v. Firemen’s Insurance Company of Newark, New Jersey, 213 So.2d 154 (La.App. 3rd Cir., 1968), affirmed at 254 La. 330, 223 So.2d 822 (1969); Towner v. Milligan, 234 So.2d 500 (La.App. 3rd Cir., 1970); Delahoussaye v. State Farm Mutual Automobile Insurance Co., 202 So.2d 287 (La.App. 4th Cir., 1967).” Keck v. Yocum, 250 So.2d 468, 469 (La.App.1971).

R.S. 32:341 requires that “every motor vehicle, other than a motorcycle or motor-driven cycle, when operated upon a highway of this state, shall be equipped with brakes adequate to control the movement of and to stop and hold such vehicle, including two separate means of applying the brakes, each of which shall be effective to apply the brakes to at least two wheels.” This statute imposes a strong duty on every motorist who operates a motor vehicle to do so only with adequate brakes. The normal burden of proof in a personal injury case is upon the plaintiff. However, in exceptional cases when a plaintiff-motorist is without fault (such as when he is in his own lane and is struck head-on by an oncoming motorist, as in Simon v. Ford Motor Co., 282 So.2d 126 (La.1973)), “the driver is required to exculpate himself of any fault, however slight, contributing to the accident.” Simon v. Ford Motor Co., 282 So.2d 126, 133.

Simon v. Ford Motor Co., supra, followed the rationale of Rizley v. Cutrer, 232 La. 655, 95 So.2d 139 (1957), which was based on a presumption of negligence arising when one left his own traffic lane and struck another. The burden of proof on such a motorist was to show that he was not guilty of any dereliction, however slight. This burden of proof was imposed in Rizley v. Cutrer because “it seems only reasonable . . . that a motorist owes . the duty of remaining in his own lane . . . ” 232 La. 655, 663, 95 So.2d 139, 142. It might also be said in this case that it seems only reasonable that a motorist should not run into an automobile ahead of him, when the driver of that automobile is without fault. It is more appropriate, however, to resort to the standards established in the Civil Code. Civil Code article ¿317 states in part:

“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. .. . ”

In Loescher v. Parr, 324 So.2d 441 (La.1975), we examined the principle of fault in Louisiana covered by Civil Code articles 2315 — 2322. There is was found that delictual responsibility did not necessarily depend upon negligent acts, but upon fault, and that the owner or custodian of an instrumentality which causes unreasonable risk of injury to others is at fault. Turner v. Bucher, 308 So.2d 270 (La.1975); Holland v. Buckley, 305 So.2d 113 (La.1974). Once the injured person proves damages from an unreasonable risk of harm to others of the offending instrumentality, “the owner or guardian responsible for the person or thing can escape liability only if he shows the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.” Loescher v. Parr, 324 So.2d 441, 447.

Therefore, the plaintiff, Arcen-eaux, who was without fault in the accident, satisfied the requirements of C.C. 2317 by proving that his damages were caused when he was struck from the rear by defendants’ automobile. Defendants were the custodians of the automobile, and were therefore responsible for the damages it caused. The burden of proof shifted to defendants, who might have escaped liability only by proving that “the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.” Loescher v. Parr, supra. In a genuine case of brake failure, the owner, charged with the responsibility of maintenance, should not escape liability merely because another person was driving the car. However, the record is convincing that the accident in question was caused by Do-mingue’s negligence and not by any mechanical failure. Bearb, therefore, has sustained his burden of proving that the harm was caused by the fault of a third person.

The Court of Appeal erred when it approved the jury charges.

Other Errors

Plaintiff also complains that the jury instructions placed a heavier burden on him to prove his damages than is required by the law. The charge complained of seems to conclude that the plaintiff must prove to a reasonable certainty that each item of damages was sustained from and caused by the accident. The charge was probably intended as an explanation that only actual damages, and not punitive damages, are recoverable in Louisiana. However, the jury was instructed that plaintiff could not recover “if he only shows that it is possible or even probable that the item of damage exists, or would exist, or that it is possible or even probable that the item of damage was caused by the accident in question.” See Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971). The charge as given was not correct.

The trial court also erred in prohibiting the plaintiff from testifying as to his earnings before the accident. The evidence, however, is included in the record in an offer of proof, and will be before the Court of Appeal on remand. The trial court also refused to inform the jury about the contents of a stipulation which plaintiff’s and defendants’ counsel made concerning the liability policy and its limits. In a jury trial, the jury is entitled to know all the evidence. We know of no statute or jurisprudence which, in the absence of agreement of the litigants, would permit admissible evidence to be withheld from the jury.

Plaintiff also complains because the trial judge would not permit him to question the defendant to determine if he had pleaded guilty to a traffic charge involving the negligent operation of an automobile as a result of striking Arceneaux’s car. The trial judge erred. A plea of guilty is an admission against interests by the driver, and is admissible as relevant evidence to show fault. Moore v. Skidmore, 301 So.2d 428 (La.App.1974); Davis v. Bankston, 192 So.2d 614 (La.App.1966); The Work of the Louisiana Appellate Courts for the 1966-1967 Term — -Evidence, 28 La.L. Rev. 312, 436 (1968); see also, Louisiana State Bar Association v. Funderburk, 284 So.2d 564 (La.1973).

For these reasons, the judgment of the Court of Appeal is affirmed insofar as it exonerates Jimmy Bearb, and is reversed otherwise; there is now judgment in favor of James S. Arceneaux, plaintiff, and against Drew Domingue and Allstate Insurance Company, defendants; the case is remanded to the Court of Appeal to fix the amount of damages, all at the cost of Drew Domingue and Allstate Insurance Company.

SANDERS, C. J., concurs in the decree.

SUMMERS, J., concurs.

MARCUS, J., concurs, and assigns reasons.

DENNIS, J., concurs and assigns reasons.

MARCUS, Justice

(concurring).

I agree with this opinion except that part dealing with fault based on La. Civil Code art. 2317, as interpreted in Loescher v. Parr, 324 So.2d 441 (La.1975). See my dissent in Loescher v. Parr, supra. Accordingly, I respectfully concur.

DENNIS, Justice,

concurring in part.

Although I join in the opinion of the court in all other respects, I do not agree fully with the Court’s application of Loescher v. Parr, 324 So.2d 441 (La.1976) and Article 2317 of the Civil Code.

Loescher v. Parr imposed strict liability on the owner of an apparently healthy, but 90% rotten, magnolia tree which fell onto a neighbor’s Cadillac. In Loescher, this Court outlined the requisites for the application of Article 2317 strict liability as follows:

“In the present case, the plaintiff neighbor has proved (a) that the thing (tree) which caused the damage was in the care (custody) of the defendant owner, (b) the defect or vice of the tree, and (c) that his damage occurred through this defect or vice. The owner-guardian of the defective tree is therefore liable for his legal fault in maintaining the defective tree and in preventing its vice from causing injury, unless he prove that the damage was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.” Id. p. 449.

Loescher limited the concept of “things” which would form the basis of Article 2317 strict liability to defective things which “create an unreasonable risk of harm to others.” See, Note, 37 La.L.Rev. 234, 239-240 (1976).

Accordingly, an individual is liable for his legal fault in maintaining a defective vehicle which creates an unreasonable risk of harm to others, such as an automobile with defective brakes, which causes injury unless he proves that the damage was caused by the fault of the victim, by the fault of a third person, or by an irresistible force. Consequently, an individual who lends his properly maintained automobile to a friend who negligently injures another is not liable either because the injury was caused by a “third person” or because it did not result from a vice or defect in the vehicle. However, if the cause of the injury was due to a defect or vice in the automobile, the owner, who has custody or care of the vehicle even while it is in his friend’s possession, is liable unless he proves that the damage was caused by the victim’s fault, by a third person’s fault, or by an irresistible force.

Insofar as the language of the Court’s opinion seems to depart from these principles, I disagree with the verbiage. Otherwise, I agree with the result and the reasons stated in the opinion of the Court.

      . There must be a clear and careful distinction between the standard of review of facts on appeal, here discussed, and the “much discretion” granted the trier of fact in fixing damages, established by C.C. 1934(3). For the proper application of the “much discretion” rule, see Coco v. Winston Industries, 341 So.2d 332 (La. 1976); Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971).

      . This case will be remanded to the Court of Appeal for decision, and not to the trial court for another jury trial with a properly instructed jury. Gonzales v. Xerox Corp., 320 So.2d 163 (La. 1975). The author of this opinion dissented in Gonzales v. Xerox Corp., but is unable to distinguish it from the case before us. There is sufficient evidence in the record for the Court of Appeal to decide the case.


source: Caselaw Access Project

author: TATE, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Michael Lovell ALEXANDER.
    No. 62526.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    Rehearing Denied Jan. 26, 1979.
    James D. Sparks, Jr., Monroe, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Par-kerson, Dist. Atty., Steven A. Hansen, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Alexander was convicted of armed robbery, La.R.S. 14:64, and sentenced to fifteen years imprisonment at hard labor. His seven assignments of error on appeal present two principal issues: (1) the admissibility of his confession; and (2) the denial of a motion to suppress his identification by the victim of the robbery, as based upon allegedly unduly suggestive pretrial identification methods.

We find no factual merit to most of the contentions urged and see no need to detail the factual evidence with regard to them. However, an arguable issue is presented in connection with the admissibility of the confession (Assignment 1) which in our view requires note.

The defendant’s counsel contends he was retained (consulted) by the accused shortly after the day of his arrest (Friday, November 18) and that he had instructed the defendant not to consent to questioning except in the presence of his lawyer. He further suggests that the record shows that state officers knew of this instruction, if only through the jailer deputy, but (it is argued) also because of reasonable indications to the interrogating deputies that counsel had been retained.

The defendant’s counsel therefore forcefully argues that the continued questioning of the accused on Tuesday, November 22, at which a confession to the instant crime was secured, was in violation of the accused’s constitutional right to the effective assistance of counsel, and that the confession to the present crime obtained on that day was inadmissible. See: State v. Weedon, 342 So.2d 642 (La.1977); Brewer v. Williams, 430 U.S. 387, 97 So.2d 1232, 51 L.Ed.2d 424 (1977), noted 38 La.L.Rev. 239 (1977).

Within a proper credibility evaluation, the trial court accepted the testimony of the interrogating police officers that they had no knowledge that the defendant Alexander, a 17 year old black youth of low intelligence (IQ 75) had actually consulted a lawyer or that he had been instructed by an attorney not to consent to interrogation in the absence of his lawyer. Nor is there evidence that any other state officer so knew, so that such imputed knowledge should have inhibited questioning in derogation of the effective assistance of counsel.

The testimony of both Alexander, his grandmother, and the testifying police officers agree that:

The defendant Alexander was arrested on Friday for another armed robbery (of a washerteria), to which he orally confessed. He and the interrogating officers agreed that the confession would be reduced to writing on Monday. On Monday, however, Alexander requested that he first speak to his grandmother. He telephoned her, and she came to the place of interrogation. She advised her grandson to tell what he knew. A confession to the washerteria robbery was then taken in writing. On the following day, the police officers again questioned Alexander concerning two other robberies (including the present one), in which he had reportedly been involved. He then made first oral and then written confessions to each of them. Before the start of each interrogation period, as well as before securing his written confessions, the officers had informed Alexander of his Miranda rights and (before the written confessions) had secured written acknowledgement from him of this circumstance.

With regard to the issue of whether the police officers violated his constitutional right to the effective assistance of counsel, the police officers testified that they knew Alexander had a “family lawyer” whom he had used in the past, and that Alexander’s grandmother was investigating the possibility of retaining him for the instant case, with the intention of doing so. Their evidence does not reveal that they knew Alexander had actually consulted his lawyer or that, as yet, any firm arrangements had been made to retain him; at most, they knew there was a possibility that Alexander might retain him.

In fact, however, Alexander’s (later-retained) lawyer had earlier seen him at the jail on Saturday morning, had left his card, and had written instructions to Alexander not to consent to questioning. On the other hand, on Monday, Alexander’s grandmother (who intended to look into retaining the lawyer) advised Alexander to tell the officers all he knew about the charges against him.

The evidence as a whole supports the trial court’s finding that the police officers did not have knowledge of facts to put them on reasonable notice that Alexander was represented by counsel. We find no merit to the contention, therefore, that they questioned Alexander in the absence of his counsel or without first consulting his counsel. See State v. Hebert, 356 So.2d 991, 995 (concurring opinion) (La.1978). Additional credence is lended to their testimony to such effect by the circumstances (a) that they immediately sent for Alexander’s grandmother when he requested consultation with her before reducing his oral confessional to writing, and (b) that they honored the request of his counsel to the jailers, when actually retained after the Tuesday confessions, to conduct no more questioning of Alexander concerning various other crimes of which he was suspected, Tr. 78-79.

Decree

Finding no merit to the assignments of error, we affirm the conviction and sentence.

AFFIRMED.

      .Under evidence properly accepted by the district court as credible and preponderating, we find no factual merit to the defendant’s contentions that (1) his confession to the instant robbery should be suppressed as the product of an illegal arrest, or as not free and voluntary (in the main because of allegedly unrebutted testimony by him as to specific misrepresentations and inducements) (Assignments 1, 5, 6); and (2) that the victim’s pre-trial identification of the accused as her robber should be suppressed, as tainted by impermissibly suggestive procedures and as not independently based upon her observation of him at the time of the robbery (Assignments 2, 3, 4, 7).

      . That is, pretermitting an earlier confession to another crime, which we find to have been voluntarily made, see Footnote 1 above.

      . Officers had been so informed by a female friend of his, and by a confessing confederate to one of them.

      . We have previously noted (see Footnote 1) that we find no error in the trial court’s finding that no inducements nor misrepresentations had been made to Alexander to secure these confessions, despite Alexander’s testimony to the contrary. Nor do we find error in the trial court’s rejection of the grandmother’s testimony that Alexander had informed the officers that he had a lawyer.


author: CALOGERO, Justice. TATE, Justice,

text:
    STATE of Louisiana v. Lee UNDERWOOD.
    No. 62528.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    Rehearing Denied Jan. 26, 1979.

      Paul Henry Kidd, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Johnny C. Parkerson, Dist. Atty., Brian E. Crawford, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Lee Underwood was convicted after a jury trial of three counts of distribution of marijuana and sentenced to terms of imprisonment of seven, eight and ten years, respectively, the terms to run consecutively. On appeal we affirm the defendant’s convictions but vacated the sentences and remanded for re-sentencing because information brought to light at the time of an earlier limited remand indicated that the severe sentences imposed were possibly based on false information contained in the pre-sentence report. 353 So.2d 1013 (La. 1978). We determined that the trial court erred in denying Underwood access to the relevant and non-confidential portions of the pre-sentence report and in failing to afford the defendant an opportunity to rebut as false any derogatory information in the report. On remand for re-sentencing the trial judge imposed sentences which included four, six and ten year terms of imprisonment, respectively, and decreed that the sentences imposed are to be served consecutively, in effect decreeing a five year reduction. The defendant timely objected to the sentences imposed on the ground that they are excessive, and now seeks the Court’s review of that claim.

In connection with Underwood’s original appeal it was noted that the three instances of distribution took place within a two month time period and that the sale in each case was to the same undercover officer, Weems. The first sale was of ten lids of marijuana (less than one pound), the second involved twenty lids and the third, which culminated in Underwood’s arrest, was of fifty-three pounds. After the arrest, as a result of the execution of a search warrant, three large cellophane bags of marijuana were seized from Underwood’s residence.

In setting forth reasons for the sentences imposed in the instant case, the trial judge unequivocally stated that he did not use the prejudicial pre-sentence report originally prepared by the division of probation and parole which contained the offending data highlighted in our original opinion. His reasons expressly recognized a joint stipulation that the state had no evidence in support of this prejudicial matter contained in the original pre-sentence report other than the evidence adduced at trial. The lengthy reasons for sentence filed in the record in support of the sentences imposed clearly set forth that the trial testimony of the undercover officer and inferences which the trial judge drew therefrom were the bases for the determination that none of the mitigating factors of Article 894.1 B of the Code of Criminal Procedure are present to an extent which would militate in favor of suspension of sentence or probation. The trial judge expressed the view that incarceration for a substantial period of time is appropriate on each count, for the reason that a lesser sentence would both enhance the risk of future drug dealings and grossly deprecate the seriousness of the defendant’s crimes.

Defendant relies heavily upon the observations made by this Court in its earlier opinion that on their face the consecutive sentences totalling twenty-five years appear excessive, absent some further explanation not found in the record. The original opinion set forth the view that in the case of a defendant with a settled family and no previous record who made three sales to the same agent over a short time span, consecutive sentences totalling twenty-five years are excessive. The Court reported that concurrent sentences are the usual rule in the case of a defendant without a previous record, absent a showing that the public safety requires a longer sentence, and noted that except in the case of a defendant with a previous record, concurrent sentences should normally not exceed the maximum for the most serious offense tried. National studies were said to indicate a usual range of sentence for a nondangerous first offender as not exceeding from five to ten years as a maximum, absent exceptional circumstances such as extended criminal activity which had not theretofore led to conviction.

The state in brief notes the proscription set forth in Article 878 of the Code of Criminal Procedure and argues that the Court’s reviewing authority in this matter is strictly limited to a review of the statute (R.S. 40:966) in order to determine its constitutionality. Because the sentences imposed in the instant case do not exceed the statutory maximum and do not violate the procedures set forth for sentencing in the Code of Criminal Procedure, the state urges that Underwood’s appeal is without merit.

A majority of the Court has indicated its agreement that Article I, § 20 of the Louisiana Constitution of 1974 renders the issue of excessiveness of individual sentences a subject of appellate review. In State v. Segers, 355 So.2d 238 (La.1978), without addressing the issue of the scope of appellate review of sentences in light of that constitutional provision, the Court affirmed the sentences imposed, a majority agreeing that they were not excessive. Three judges merely concurred in Segers, two for the articulated reasons that the Court could not properly review the excessiveness of the sentences imposed. But see State v. Walker, 328 So.2d 87, 89 (La.1976), in which the judges who lately in Segers and other cases expressed or intimated the view that the excessiveness of individual sentences cannot properly be reviewed joined without reservation in the opinion which reviewed the length of an individual sentence and found it not to be excessive. However, this Court has never heretofore expressly held that Article I, § 20 of the 1974 Constitution confers upon this Court the authority, nor imposes upon it the duty, to determine whether sentences imposed are excessively severe. See State v. Kemp, 359 So.2d 978 (La.1978). Therefore, members of the Court continue to author opinions viewing the matter as an undecided issue, in which even members of the Court who consider the matter settled in favor of appellate review of individual sentences for exces-siveness join. See, e. g., State v. Johnson, 363 So.2d 458 (La.1978). It is not necessary in this opinion to squarely meet the issue of the scope of the authority conferred by the 1974 Constitution’s prohibition against excessive punishment, since, under either interpretation of Article I, § 20, the facts and circumstances present in the instant case establish that the trial judge did not abuse his discretion in imposing sentence upon the defendant.

When we originally considered Underwood’s appeal we did not have before us the testimony of the undercover officer, Weems, upon which the trial judge relied so heavily in determining the sentences he imposed. Weems’ unrebutted testimony recounted that when the officer first approached the defendant at his home, telling a story accepted by defendant that a man he met in jail had sent him to deliver $42.00 owed Underwood for marijuana, Underwood responded to a complaint by Weems that he was unable to obtain work by inquiring whether Weems was interested in purchasing quantities of marijuana from him at $7.00 per package for re-sale at a profit. To assuage Weems’ feigned apprehensions about detection in the event he would undertake marijuana sales, Underwood assured that there was no cause to “. . . worry about the heat around here” because “[t]hey can only get the little guys and not the big guys.” On the occasion of their first meeting Underwood sold Weems ten packages of marijuana, which he retrieved from a shed beside his home, accepting $60.00 in payment and “fronting” Weems the additional ten dollars. Underwood explained to the officer at this time that he normally sold marijuana in bundles of thirty packages each (totalling one pound) for the price of $210.00, but agreed to break down a bundle for Weems. He represented to Weems that he could supply any amount of marijuana desired because he grew his own, and stated that he could establish Weems as a seller in one of several surrounding areas.

A month later Weems again contacted Underwood, relating that he had visited friends in Little Rock, Arkansas during a recent visit to that city who expressed an interest in buying marijuana in 75 to 100 pound quantities. Weems recounted that Underwood told him a week’s notice would be required before he could supply such amounts and it was agreed that there would be further contact regarding this tentative arrangement. At this second meeting Underwood inquired whether Weems wished to purchase more marijuana and the two men agreed to a transaction involving twenty packages, sold for a total of $140.00. Underwood secured the marijuana from the bed of his pick-up truck an hour later when Weems returned to Underwood’s residence to receive the substance, as instructed.

Approximately two weeks after the second transaction undercover officer Weems notified the defendant that his friends in Little Rock desired to purchase 100 pounds of marijuana. Underwood and Weems met at a shopping center to discuss the possibility of such a sale and Underwood confessed that he could only supply 53 pounds because of the time of year. The meeting terminated and Underwood drove Weems to an apartment complex, from whence the defendant was noted to surreptitiously observe the building which Weems entered for a time. A quantity price of $140.00 a pound had been finally agreed upon (which would render the total price of $7,420.), and Weems telephoned defendant and represented that he had arranged to meet the buyers at the airport late at night, and obtain from them the money. He sought to then meet Underwood for a transfer of the marijuana.

Law enforcement officials involved in efforts to apprehend drug offenders arranged to land an airplane at an appointed airfield and Weems pretended to meet the buyers and receive from them money and containers in which to place the marijuana to be purchased. While going through the motions of this pretended receipt of money Weems noted a vehicle identical to one he had before observed at Underwood’s home drive by the airport area several times, as if conducting a surveillance of the scene. Weems contacted Underwood by telephone, then proceeded to the church lot where he had agreed to meet Underwood and soon thereafter the defendant arrived. Before actually approaching Weems, Underwood remained parked across the street from Weems’ vehicle and cautiously observed the area for a period of time. When the two men met, Underwood proposed that they proceed to another unspecified location in the area to consummate the sale. When Weems refused to accompany Underwood, the defendant then used his citizens band radio to call and order delivery of the marijuana to the church lot. The delivery vehicle, the same one observed by Weems driving around the airport area earlier in the evening, soon arrived and a young girl exited along with the man who was driving.

Underwood retrieved bags unloaded from the bed of the delivery vehicle and placed them in Weems’ car. After Weems opened the bags to assure that they contained marijuana, he announced his identity and advised Underwood that he was under arrest. Underwood dived to the ground after hearing Weems’ announcement but made no effort to use the gun that was there.

From Weems’ uncontradicted account of his dealings and conversations with Underwood the trial judge concluded that Underwood was a substantial supplier of an illegal drug. In support of this conclusion, the trial judge pointed to the testimony relating defendant’s urging of Weems’ purchases, intended for re-sale, on three separate occasions and the precautions he took in preparing for the large, final sale. From defendant’s assertions to Weems the trial judge inferred that Underwood had some kind of profit-seeking organization which employed assistants whom Underwood continually sought, that he was a grower and supplier who was totally familiar with street prices and disdainful of police efforts against distributors of his stature.

Our review of the testimony of Officer Weems establishes that the conclusions of fact and inferences of the trial judge were adequately supported by the record. Based on the facts found, we cannot say that the imposition of four, six and ten year terms of imprisonment to be served consecutively was an abuse of the trial judge’s discretion in determining the appropriate sentences available from the statutory range of sentences.

The trial judge painstakingly outlined his consideration of the sentencing guidelines set forth in Article 894.1 of the Code of Criminal Procedure, concluding that defendant’s circumstances and his attitude did not satisfactorily persuade that he was unlikely to commit another crime during the period of a suspended sentence or probation, in light of his admission that he would not have undertaken his activities had he realized the severity of the penalties. This representation, the trial judge found, merely indicated an expectation that he would be undetected or be afforded leniency if apprehended. The judge also opined that a lesser sentence would not only enhance the risk of future drug dealings but would grossly deprecate the seriousness of the defendant’s crimes. The trial judge stressed that Underwood acted of his own volition and reasoned that while Underwood had no prior criminal record, it could not be learned how long he had pursued his drug enterprises without detection prior to his contact with Officer Weems. The trial judge noted his consideration of the updated pre-sen-tence report prepared by the Division of Probation and Parole, which indicated that Underwood had resumed his legitimate business operations and devoted significant time to religious and family affairs, as well as to work, since the previous pre-sentence report filed more than eighteen months before. However, the trial judge stated that the defendant’s behavior was exactly what one might expect of a person awaiting re-sentencing after vacation of previous, lengthy sentences and was considered to be as consistent with a desire to influence judicial leniency as with a desire to truly repent and a resolution to refrain from further illegal conduct. Because his re-evaluation of all the features of the sentencing guidelines prompted a conclusion that he may have given slightly less weight to the fact that these were legally Underwood’s first offenses than he should have when initially imposing sentences, the trial judge reduced the term of years imposed upon Underwood’s convictions for the distribution of the two smaller amounts of marijuana from seven and eight years to four and six years, respectively, determining to re-impose the ten year sentence for the distribution of the large quantity and the consecutive mode of service of the three sentences.

We do not necessarily agree with the trial judge that Underwood’s claimed lack of awareness of the seriousness of the crimes and the penalties indicates that there exists an undue risk» that leniency would lead to the commission of other crimes. However, we are in agreement with the trial judge’s assessment of the other factors considered in connection with application of the sentencing guidelines of Article 894.1 to the extent that we cannot say that the sentences imposed reflect an abuse of the sentencing judge’s large discretion. There is no reversible merit in defendant’s claims of excessiveness of sentence.

Dec "ee

For the reasons stated hereinabove, we affirm the sentences imposed.

SENTENCES AFFIRMED.

SANDERS, C. J., concurs in the decree.

SUMMERS, J., concurs.

TATE, J., dissents and assigns written reasons.

MARCUS, J., concurs.

TATE, Justice,

dissenting.

The majority makes a strong case for the maximum ten-year sentence on the most serious of the three marijuana-distribution counts. Also, if the evidence indicated that the defendant had been engaged in marijuana distribution over an extended period of time (rather than just for a few months), without having been caught before, the consecutive sentences of an additional ten years might be justified.

However, the consecutive additional sentences were imposed for minor transactions arising out of the course of criminal conduct for which the maximum ten-year sentence was appropriate. The defendant is a previously law-abiding citizen, albeit in the few months prior to his arrest engaging in marijuana-distribution of a substantial nature.

Therefore, under the sentencing principles noted in our original opinion, 353 So.2d 1013 (La.1978), concurrent instead of consecutive sentences should have been imposed, since the conduct arose out of the same contained (non-extended) course of conduct. The ten-year maximum penalty for distribution of marijuana legislatively contemplated that this substantial penalty was appropriate for this course of conduct — the legislature could not have intended, for instance, one hundred years of imprisonment for a person who sold ten marijuana cigarettes to the same or different persons on the single day of his life in which he violated the law.

One of the strongest reasons advanced for permitting joinder of separate offenses for trial in a single proceeding is to facilitate the imposition of concurrent rather than consecutive sentences for what, in effect, is a single course of conduct. Commentary, Standard 1.1, ABA Standards of Criminal Justice Relating to Severance and Joinder (1968). This purpose is thwarted, when consecutive sentences are imposed merely because several counts of the same course of conduct have been joined for trial in a single proceeding. Prior to permission of such joinder by recent legislation, in all probability the state, satisfied with its conviction and maximum sentence on one charge, would not have for a first offender also prosecuted him and secured additional sentences on the other minor charges here joined for trial.

I therefore respectfully dissent from the consecutive sentences as excessive. La. Const, of 1974, Art. 1, Section 20.

      . After the appeal was ordered by the trial court, but before the record was lodged in this Court, Underwood sought a limited remand, alleging that the exceptionally heavy sentence imposed on him under the circumstances indicated that it was based on prejudicial and inaccurate information in a pre-sentence report. Request for inspection was denied by the trial judge, notwithstanding the judge expressed he had no objection to inspection, on the basis that the report compiled in this case had been returned to the parole and probation department. We granted a remand for consideration by the trial judge of Underwood’s request for pre-sentence report data. 345 So.2d 904 (La. 1977).

      . The portion of the report which prompted complaints set forth the following:
      “According to information received from the Narcotic Strike Force, the offender was probably the largest distributor of marijuana that they have apprehended in this area. He was bringing it in large quantities, and at times using at least one of his employees that worked for him in his construction business to make deliveries for him.”

      . C.Cr.P. art. 878 provides:
      “A sentence shall not be set aside on the ground that it inflicts cruel or unusual punishment unless the statute under which it is imposed is found unconstitutional.”

      . See e. g., State v. Gambino, 362 So.2d 1107 (La.1978).

      . The controversy which exists is well expressed in State v. Progue, 350 So.2d 1181 (La. 1977) in the following language:
      “La.Const. art. 1, § 20 provides in pertinent part:
      . No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment . . . (Emphasis added.)
      Some members of this court, including the author of this opinion, are of the view that this constitutional provision only gives to this court the judicial power to declare as unconstitutional laws which provide for excessive sentences rather than extending the judicial power to appellate review of sentences imposed in individual cases. Other members of the court interpret the provision as conferring upon this court constitutional authority to review sentences imposed in individual cases.”

      . R.S. 40:966 provides the penalty for distribution of marijuana. It stated, in pertinent part:
      “Any person who violates Subsection A [prohibiting distribution] with respect to:
      Any other controlled dangerous substance classified in Schedule I [including marijuana] shall, upon conviction be sentenced to a term of imprisonment at hard labor for not more than, ten years and pay a fine of not more than fifteen thousand dollars.”

      . Article 894.1 of the Code of Criminal Procedure provides in full as follows:
      “A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:

        (1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
      (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
      (3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
      B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
      (1) The defendant’s criminal conduct neither caused nor threatened serious harm;
      (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
      (3) The defendant acted under strong provocation;
      (4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
      (5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
      (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      (8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      (10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.”


author: MARCUS, Justice.

text:
    Stanley J. SMITH v. DELTA EXPRESS, INC.
    No. 62529.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    Rehearing Denied Jan. 26, 1979.

      John G. Williams, Natchitoches, for defendant-respondent.
    Jeff McHugh David, Denham Springs, for plaintiff-applicant.
   MARCUS, Justice.

On January 5, 1970, Stanley J. Smith and Delta Express, Inc. entered into three separate written agreements. The first was a purchase agreement whereby Smith sold to Delta Express certain vehicular equipment along with motor carrier operating rights issued by the Interstate Commerce Commission and the Louisiana Public Service Commission. Pursuant to a second agreement, entitled personal services employment contract, Smith was to receive $4,200 annually for a period of five years in return for his services. A third instrument, an amendment to the purchase agreement, specified that the buyer, Delta Express, would not sell, transfer or encumber the operating rights until Smith had received all sums due him under the personal services contract.

In due course, Smith received four of the five annual payments for his services, but the fifth and final payment was never made. Smith brought this action against Delta Express for rescission of the sale of the vehicular equipment and operating rights for non-payment of the purchase price which he alleged included the full compensation due him under the personal services contract. He further sought judgment declaring him to be the rightful owner of the operating rights free and clear of any encumbrances placed upon them subsequent to their sale to Delta Express.

After trial on the merits, judgment was rendered in favor of Smith and against Delta Express declaring the sale by Smith to Delta Express dated January 5, 1970, null and void. Smith was further declared to be the true and lawful owner of the operating rights in question, free and clear of all mortgages, liens or encumbrances attaching to them on or after January 5,1970.

Delta Express filed a motion for a new trial and an exception to the jurisdiction of the court over the subject matter of the action. The trial judge denied the motion and overruled the exception. Delta Express appealed. The court of appeal first addressed itself to the issue of whether a state court has jurisdiction to decide the ownership of the motor carrier operating rights issued by the Interstate Commerce Commission. Feeling bound to follow the ruling of this court in Graziani v. Elder & Walters Equipment Co., Inc., 209 La. 939, 25 So.2d 904 (1946) and finding it squarely on point, the appeals court held that “the trial court was without authority to award the ownership to plaintiff [Smith] of the operating authorities regulated by the Interstate Commerce Commission. Plaintiff’s remedy, according to Graziani, lies with the Interstate Commerce Commission.” Accordingly, the appeals court did not reach the merits of the appeal except to affirm that portion of the trial court’s judgment adjudicating the ownership of the operating rights issued by the Louisiana Public Service Commission and vehicular equipment described in the agreement of purchase dated January 5, 1970, because appellant (Delta Express) had not put it at issue, either in brief or oral argument, before that court. On Smith’s application, we granted certio-rari to review the correctness of this decision.

The sole issue presented for our consideration is whether a state court has jurisdiction to determine who is the owner of operating rights issued by the Interstate Commerce Commission.

In Graziani v. Elder & Walters Equipment Co., supra, plaintiff sued to recover the unpaid balance on a sale of certain vehicular equipment together with an operating right issued by the Interstate Commerce Commission. A third party intervened, claiming to be the true and lawful owner of the operating right by virtue of an agreement existing between him and plaintiff. Although acknowledging the merits of the intervenor’s claim, this court nevertheless declined to award him the operating right, stating that it had no authority to do so:

“By reason of his written agreement (above described) with plaintiff, intervener (sic) Tedesco, it appears, has a claim to the permit or certificate in question superior to that of plaintiff. But the state courts, we think, are without authority to award it to him. The regulation of motor carriers engaged in interstate or foreign commerce is vested in the Interstate Commerce Commission, and the issuance of carrier permits or certificates is within its discretion. No certificate may be transferred or granted without its consent. 49 U.S.C.A. §§ 306, 312(b); Rulings of the Interstate Commerce Commission, Federal Carrier Service, pages 1585, 3251; United States v. Resler, 313 U.S. 57, 61 S.Ct. 820, 85 L.Ed. 1185. Moreover, appeals from the rulings or decisions of the Commission are to the federal courts, not the state courts. Hence for us to judicially recognize intervenor as the legal owner of the instant certificate would not be binding on the Commission; such a judgment would be without force and effect. It follows logically that the intervention should be dismissed as of non-suit.”

We are of the opinion that the Graziani case was wrongly decided; therefore, we feel constrained to overrule it.

Transfers of operating rights originally issued by the Interstate Commerce Commission are specifically authorized by the Federal Motor Carrier Act, 49 U.S.C.A. § 312(b). No restrictions are imposed upon the types of transfers permitted under the act, but all transfers are subject to the approval of the Commission. The court in Graziani apparently reasoned that, prior to this approval by the Commission, operating rights are not property susceptible of transfer but are mere licenses personal in nature. The majority view is to the contrary, i. e., operating rights are property, the transfer of which passes title to the transferee. The transferee does not, however, thereby acquire the authority to use the rights. This authority can come only upon application to the Commission, which grants or withholds its permission to operate after a consideration of the various factors prescribed by the federal rules and regulations. The Commission, as an administrative body, is concerned only with the regulation of the use of operating rights; it has no interest in resolving legal disputes arising from conflicting claims of ownership to the rights. Such disputes, governed by state law, are matters for the courts (state courts would have jurisdiction), not for an agency that has responsibility in the realm of regulating transportation systems. Moreover, a determination of the ownership of the operating rights by the court will in no way impinge upon the Commission’s authority to withhold or grant its consent to the use of the rights.

Accordingly, we conclude that a state court has the authority to determine who is the true and lawful owner of the operating rights issued by the Interstate Commerce Commission. The court of appeal erred in holding otherwise. We must therefore reverse its decision and remand the case to that court for a determination of the merits of the appeal.

DECREE

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

      . 359 So.2d 1066 (La.App. 3d Cir. 1978).

      . 360 So.2d 1179 (La. 1978).

      . 49 U.S.C.A. § 312(b) provides:
      Except as provided in section 5 of this title, any certificate or permit may be transferred, pursuant to such rules and regulations as the Commission may prescribe.

      . Although private sales by contract are the usual method of transfer, it is apparent from the regulations of the Interstate Commerce Commission that transfers effected by operation of law through judicial proceedings are also contemplated. This is evidenced by 49 C.F.R. 1132.7 which reads as follows:
      If any proposed transfer presented to the Commission for approval shall also require the authority or approval of any court, applicants shall file with the Commission, at the time of filing their application, a certified copy of the order of the court authorizing the transfer of the operating rights involved,

      . Chandler Trailer Convoy, Inc. v. Rocky Mt. Towing Services, Inc., 37 Colo.App. 520, 552 P.2d 522 (1976); Lennon v. Habit, 216 N.C. 141, 4 S.E.2d 339 (1939); Royal Blue Coaches v. Delaware River Coach Lines, 140 N.J.Eq. 19, 52 A.2d 763 (1947); Costello v. Acco Transport, 33 Tenn.App. 411, 232 S.W.2d 297 (1950); Brown v. Smith, 32 Tenn.App. 622, 225 S.W.2d 91 (1949); Walker v. Central Freight Lines, Inc., 382 S.W.2d 125 (Tex.Civ.App.1964).

      . See U. S. v. I. C. C., 396 U.S. 491, 90 S.Ct. 708, 24 L.Ed.2d 700 (1970); Watson Bros. Transp. Co. v. Jaffa, 143 F.2d 340 (8th Cir.1944); Texas & N. O. R. Co. v. Brotherhood of Railroad Trainmen, 307 F.2d 151 (5th Cir.1962).


text:
    STATE of Louisiana v. Johnny G. McINTYRE.
    No. 62539.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    Rehearing Denied Jan. 26, 1979.

      Wellborn Jack, Jr., Jack & Jack, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., James M. Johnson, First Asst. Dist. Atty., for plaintiff-appel-lee.
   MARCUS, Justice.

Johnny G. McIntyre was indicted by the Webster Parish Grand Jury for aggravated rape in violation of La.R.S. 14:42. At arraignment, defendant entered a plea of not guilty and not guilty by reason of insanity to the indictment. After trial by jury, defendant was found guilty and sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. On appeal, defendant relies on nine assignments of error for reversal of his conviction and sentence. He also alleges an error patent on the face of the record. Finding merit in Assignment of Error No. 3, we need not consider the others.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in denying his challenge for cause of prospective juror, Donald Ray Veitch. He argues that, because of this erroneous ruling, he was compelled to exercise one of his peremptory challenges to excuse Mr. Veitch and was thereby deprived of one of his twelve peremptory challenges.

During voir dire, defendant questioned Mr. Veitch and established that he was a retired captain with the state police by whom he had been employed as a state trooper for twenty years, thirteen of which he had been assigned as a resident trooper in Minden. He had retired four years prior to the date of trial. His wife had worked as the personal secretary to a former district attorney from 1960 to 1969. During his employment as a state trooper, he appeared in court, both civil and criminal, on many occasions as a witness for the state. On one occasion, Mr. Veitch served as a witness in a civil trial in which his investigation was attacked by the same attorney representing defendant in this case. The prospective juror indicated that his investigation had been hindered by defense counsel. He also admitted that defense counsel had angered him at the time. Mr. Veitch was additionally questioned concerning his knowledge of defendant and his family. He stated that during the course of his duty as a state trooper, he had had several encounters with defendant’s father and brother. In particular, he recalled being involved in a situation where defendant’s father had become violent, burned down his own house, threatened to commit suicide, attempted to outrun the police and holed up in the woods for eleven hours before being apprehended. In the course of answering whether this incident would affect his judgment in this case, Mr. Veitch expressed reservation concerning the defense of insanity: “And while I’m ■ at it, if I may be candid about this thing, the very plea bugs me and he pleads not guilty, then he pleads not guilty because of insanity. Now in one breath he says I didn’t do this act or I’m not guilty of a criminal act and in the next breath he says well, if you can find that I did then I was insane. Now this is hard for me to accept.” Upon further questioning about the plea of insanity,, the prospective juror responded: “And this is what’s going to bug me about this whole thing because I can’t quite comprehend — You may show me but as it stands right now I can’t understand this plea.” The witness also recalled having had some trouble on a parking lot with defendant’s brother. At first, he was uncertain as to whether this trouble had involved defendant or his brother. He further mentioned that he had recently heard that either defendant or his brother was charged with resisting arrest and assaulting a state trooper.

Further questioning revealed that Mr. Veitch had maintained long-standing professional relationships with most of the deputies subpoenaed by the state as witnesses for the trial. When asked how this would affect his judgment, defendant admitted that he would tend to believe the testimony of those officers he knew as opposed to that of witnesses he did not know. Mr. Veitch repeatedly insisted, however, throughout the questioning, that he was aware of his responsibilities as a juror, that he would weigh the evidence presented fairly and impartially and that his past relationship with law enforcement would not interfere with his ability to be impartial. Finally, upon being questioned as to whether his experience in law enforcement had been a pleasant one, Mr. Veitch replied: “Yes, sir, I loved it.” Based on this examination, defendant challenged Mr. Veitch for cause, arguing that “it is reasonable to conclude that his relationship with various people in the case . . . would influence him in reaching a verdict.” The trial judge denied defendant’s challenge for cause, stating that Mr. Veitch’s answers indicated that he would be an impartial juror. Defendant objected to the ruling of the trial judge and peremptorily challenged Mr. Veitch.

La.Code Crim.P. art. 797 provides in pertinent part:

The state or the defendant may challenge a juror for cause on the ground that:
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;
(4) The juror will not accept the law as given to him by the court; .

La.Code Crim.P. art. 800 provides in pertinent part:

A defendant cannot complain of a ruling refusing to sustain a challenge for cause made by him, unless his peremptory challenges shall have been exhausted before the completion of the panel.

Where an accused has exhausted all of his peremptory challenges before completion of the panel, he is entitled to complain on appeal of a ruling refusing to maintain a challenge for cause made by him. State v. Qualls, 353 So.2d 978 (La.1977); State v. Ballard, 337 So.2d 481 (La.1976). The trial judge is vested with broad discretion in ruling on a challenge for cause which ruling will not be disturbed on appeal absent a showing of abuse of that discretion. State v. Drew, 360 So.2d 500 (La.1978). However, service on a criminal jury by one associated with law enforcement duties must be closely scrutinized and may justify a challenge for cause; such association does not automatically disqualify a prospective juror. State v. Robinson, 353 So.2d 1001 (La.1977); State v. Madison, 345 So.2d 485 (La.1977). A juror who will unquestionably credit the testimony of law enforcement officers over that of defense witnesses is not competent to serve as a juror. State v. Nolan, 341 So.2d 885 (La.1977); State v. Jones, 282 So.2d 422 (La.1973) (on rehearing). In State v. Breedlove, 199 La. 965, 7 So.2d 221 (1942), this court held that three requirements were necessary before the ruling of a trial judge refusing to sustain a defendant’s challenge for cause constituted reversible error: (1) an erroneous ruling refusing to sustain the defendant’s challenge for cause; (2) exhaustion of all of the defendant’s peremptory challenges; and (3) the defendant was forced to accept an obnoxious juror, either the one that should have been excused for cause, or, if the juror was peremptorily challenged, a subsequent juror that defendant would have peremptorily challenged but for the fact that he had already exhausted his peremptory challenges. Chief Justice O’Neill strongly dissented.

The Louisiana Code of Criminal Procedure (Acts 1966, No. 310) became effective January 1, 1967. Article 800 was intended, as the Official Revision Comment notes, to change the law by legislatively overruling the Breedlove decision and adopting the dissenting opinion of Chief Justice O’Neill. Thus, defendant now need only show two things to obtain reversible error: (1) that the trial judge erred in refusing to sustain a challenge for cause by the defendant; and (2) that the defendant exhausted all of his peremptory challenges. He need no longer make an additional showing of injury resulting from the court’s action by forcing him to accept an obnoxious juror. La.Const. art. 1, section 17 provides that the accused has a right to challenge jurors peremptorily; the number of challenges to be fixed by law. La.Code Crim.P. art. 799 provides that in trials of offenses punishable by death or necessarily by imprisonment at hard labor, each defendant shall have twelve peremptory challenges. Therefore, an erroneous ruling of a trial judge which deprives a defendant of one of his peremptory challenges constitutes a substantial violation of a constitutional or statutory right requiring reversal of his conviction and sentence. La.Code Crim.P. art. 921.

In the instant case, defendant’s peremptory challenges were exhausted before completion of the panel; therefore, his objection to the ruling refusing to sustain his challenge for cause is properly before us. During voir dire, defendant established that Mr. Veitch had been employed as a state trooper for twenty years prior to his retirement four years earlier. His wife had previously worked for nine years as personal secretary to a former district attorney. Mr. Veitch also stated that he had difficulty accepting the law relative to a plea of not guilty and not guilty by reason of insanity (the plea entered in this case). Additionally, he had had an unpleasant experience with defense counsel. During the course of his employment as a state trooper, he had had contact with defendant’s father and brother in connection with law enforcement. Finally, Mr. Veitch commented to the effect that he would tend to believe the testimony of deputies with whom he had worked over that of witnesses with whom he was not acquainted. Due to the totality of these circumstances and particularly his long relationship with law enforcement, we do not consider that it is reasonable to conclude that Mr. Veitch was capable of serving as an impartial juror despite his manifestations to the contrary. Hence, we find that the trial judge abused his discretion in refusing to sustain defendant’s challenge of Mr. Veitch for cause. As a result of this erroneous ruling, defendant exercised a peremptory challenge on Mr. Veitch and was thereby deprived of one of the twelve peremptory challenges to which he is entitled by law. This constituted a substantial violation of a constitutional or statutory right. Accordingly, we must reverse.

DECREE

For the reasons assigned, the conviction and sentence are reversed, and the case is remanded to the district court for a new trial.

SUMMERS, J., dissents.

      . Defendant expressly abandons Assignments of Error Nos. 5, 6, 7 and 9.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Charles Allen TURNER, Jr. and Mitchell Charles Mallett.
    No. 62549.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    Rehearings Denied Jan. 26, 1979.

      James Miguez, Lake Charles, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., James E. Stainback, Asst. Dist. Atty., Lake Charles, for plaintiff-ap-pellee.
   DENNIS, Justice.

Defendants, Charles Allen Turner, Jr. and Mitchell Charles Mallett, were tried jointly on charges of armed robbery, La. R.S. 14:64. A jury of twelve persons found Mallett guilty as charged and Turner guilty of simple robbery. Turner was sentenced to five years at hard labor. After being adjudged a multiple offender, La.R.S. 15:529.1, Mallett was sentenced to thirty-five years at hard labor.

On the night of December 5, 1977 Turner and Mallett, co-defendants herein, were riding in an automobile with Charles Bertrand and Lisa LeBleu. They stopped at the Wizard Fas-Stop convenience store in Lake Charles. After Bertrand and Turner entered the store Bertrand forced the female store attendant into a storeroom, pulled a pistol from his pants and locked the storeroom door. Cash from the register, liquor and a stereo tape were seized by Bertrand or one of his companions. However, a silent alarm was activated during the robbery, and the police officers who promptly responded arrested, Turner, Mallett, Bertrand and LeBleu.

Bertrand pleaded guilty to armed robbery and was awaiting sentencing at the time of the trial in the instant case. The prosecution against LeBleu was severed upon her motion without opposition by the State. Turner timely filed a motion to sever his case from the prosecution against Mallett.

The trial judge conducted a pre-trial hearing on Turner’s motion to sever. Turner and Mallett were represented by the same attorney in the trial court, and Turner’s pleading was treated as a joint motion for severance by both defendants. At the hearing on the motion both Turner and Mallett testified. Turner stated that if called as a witness by Mallett he would testify that Mallett was passed out in the car at the time of the alleged offense. The attorney for Turner and Mallett immediately interjected, however, that he would not put either defendant on the stand if the State’s case failed to develop as he expected. Mallett testified that he did not know anything about the robbery until he was awakened by the arresting officer. The defense attorney also took the stand and outlined the co-defendants’ proposed testimony, adding that Turner would testify he entered the store with Bertrand but was unaware that Bertrand planned a robbery. At the conclusion of the hearing the trial judge denied the severance motion.

At the trial on the merits neither Turner nor Mallett took the witness stand. The female store attendant gave testimony that Turner, Mallett and Bertrand were all inside the store during the robbery. Bertrand testified that, although Turner entered the store with him, neither Turner nor Mallett were aware that he had a gun or planned a robbery, and that they did not participate in the crime. The jury found Mallett guilty as charged and Turner guilty of simple robbery.

ASSIGNMENT OF ERROR NO. 1 BY BOTH DEFENDANTS

Each defendant assigns as error the trial court’s denial of the motion for a severance.

Jointly indicted defendants must be tried jointly unless the state elects to try them separately or the court, after a contradictory hearing, is satisfied that justice requires a severance. La.C.Cr.P. art. 704.

Whether “justice requires a severance” must be determined by the facts of each case. State v. Thibodeaux, 315 So.2d 769 (La.1975). However, it is clear that a severance is necessary if the defenses of co-defendants are mutually antagonistic to the extent that each defendant attempts to place the blame on the other, creating a set of circumstances under which a defendant must defend against his co-defendant as well as the State. State v. Thibodeaux, id.

The defendants failed to demonstrate in the contradictory hearing on the motion to sever that the defenses to be presented were antagonistic. Neither Turner nor Mallett indicated that his trial testimony would be hostile or act in opposition to his co-defendant. The mere allegation that defenses will be antagonistic is not sufficient to require a severance. State v. Hunter, 340 So.2d 226 (La.1976); State v. Jenkins, 340 So.2d 157 (La.1976); State v. Thibodeaux, supra; State v. Medlock, 297 So.2d 190 (La.1974).

Mallett contends, however, that he was prejudiced by the joinder of co-defendants which prevented him from calling Turner as a witness to prove that he was unconscious in the car during the robbery. Where it is clear from the record that a co-defendant would give exculpatory testimony if a severance were granted, the denial of a severance is an abuse of discretion. See, La.C.Cr.P. art. 704, Official Revision Comment (c)(2). However, the burden is on the movant to establish that the co-defendant would, in fact, testify at a separate trial, and the exculpatory nature of his proposed testimony. See, 8 Moore’s Federal Practice, § 14.04[4].

In the instant case, despite Turner’s testimony at the contradictory hearing that he would testify as to Mallett’s unconsciousness if called as a witness, Mallett failed to demonstrate that Turner would, in fact, testify at a separate trial or that his testimony would exculpate him. Because Turner’s proposed testimony, viz., that he left Mallett passed out in the car to enter the store with Bertrand, would have been a highly self-incriminating admission if made during Mallett’s trial, the trial judge was quite justified in showing a healthy skepticism whether Turner would not claim his constitutional privilege even in a separate trial. See, 1 Wright, Federal Practice and Procedure: Criminal § 225 (1969). Furthermore, the judge’s doubt was likely raised to a well founded incredulity when defense counsel added that he would not put anyone on the stand if the State’s case did not materialize as he expected. Accordingly, we are unconvinced that the denial of the severance was prejudicial to Mallett or amounted to an abuse of the trial judge’s discretion.

In support of their motions for a new trial defendants argued that the trial judge’s refusal to sever their cases diminished the effectiveness of defense counsel and thereby denied them their rights to assistance of counsel guaranteed by the Sixth Amendment and the Louisiana Constitution of 1974, Article I, § 13. However, neither defendant was forced to accept the trial attorney as his defense counsel and there was no request by either defendant that separate counsel be appointed. Defendants’ reliance on Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978) in support of the motion for new trial is both belated and misplaced. In that case the co-defendants moved for appointment of separate counsel, both a few weeks before trial and before the jury was empaneled, based on their appointed counsel’s representation that, because of confidential information received from the co-defendants, he was confronted with the risk of representing conflicting interests and could not, therefore, provide effective assistance for each client. The Supreme Court held that upon these facts the trial court’s failure either to appoint separate counsel or to take adequate steps to ascertain whether the risk of a conflict of interests was too remote to warrant separate counsel deprived the co-defendants of the guarantee of “assistance of counsel” under the Sixth Amendment. The instant case is distinguishable in two important respects. Here, the co-defendants did not move for separate counsel before trial, and, for the same reasons that justice did not require a severance, the risk of a conflict of interest as reflected in the pre-trial hearing evidence was too remote to warrant separate counsel.

These assignments of error are without merit.

The remaining assignments of error do not require extensive discussion:

Assignment number two by both defendants concerns their motions for a new trial on the ground that the verdicts are contrary to the law and the evidence. This Court’s review of a trial court’s denial of a new trial motion based on this ground is limited to the question of whether the trial judge has properly exercised his wide discretion. La.C.Cr.P. art. 851; State v. Jones, 288 So.2d 48 (La.1974). The defendants have failed to direct our attention to either a failure to exercise, or an abuse of, discretion by the trial judge in denying a new trial. Accordingly, these assignments are without merit.

Assignment number three by Mal-lett presents a nonmeritorious attack on the constitutionality of the Habitual Offender Statute, La.R.S. 15:529.1. The same arguments urged by defendant were considered and rejected in State v. King, 355 So.2d 1305 (La.1978); State ex rel. Clark v. Martillo, 352 So.2d 223 (La.1977); State v. Madison, 345 So.2d 485 (La.1977); State v. Linkletter, 345 So.2d 452 (La.1977); State v. Badon, 338 So.2d 665 (La.1976); State v. Overton, 337 So.2d 1201 (La.1976); State v. Boatner, 304 So.2d 661 (La.1974).

Another alleged error was not raised by objection in the trial court at the time of the habitual offender hearing, although it is urged in brief here. Mallett contends that the evidence does not show the date of Mallett’s discharge from prison following his first conviction from which the five-year “cleansing” period began. La. R.S. 15:529.1(C). See State v. Anderson, 349 So.2d 311 (La.1977). While the record does not affirmatively establish that the five years had or had not elapsed, the showing indicates that more probably than not it had not elapsed between the crimes. If, in fact, Mallett is able to show that the five years had elapsed, then he can secure appropriate relief upon postconviction proceedings.

For the reasons assigned the convictions and sentences of both defendants are affirmed.

AFFIRMED AS TO BOTH DEFENDANTS.


author: SANDERS, Chief Justice. DENNIS, J.,

text:
    STATE of Louisiana v. David Hill LAWRENCE.
    No. 62550.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    Rehearing Denied Jan. 26, 1979.
    Henry H. Lemoine, Jr., Wilbert J. Saucier, Jr., Lemoine & Saucier, Pineville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., William E. Tilley, First Asst. Dist. Atty., Edwin L. Cabra, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The Grand Jury of Vernon Parish indicted the defendant, David Hill Lawrence, for second degree murder, a violation of LSA-R.S. 14:30.1. He was tried by jury and found guilty as charged. The trial judge sentenced him to life imprisonment, without parole, probation, or suspension of sentence for forty years. The defense preserved twelve assignments of error, eight of which defendant relies upon for reversal of his conviction and sentence.

The State’s theory of the case is that Lawrence and his wife were involved in an altercation at their residence. During the altercation, he repeatedly struck his wife’s head against the floor. The wife died of the injuries received.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

In these assignments of error, the defendant argues that the trial court erred in denying his motion to quash the indictment. This Court granted supervisory writs to review the trial court’s ruling on the motion to quash. State v. Lawrence, La., 345 So.2d 54 (1977). After reviewing the issues, we affirmed the trial court’s ruling. Hence, these assignments are without merit. State v. Lawrence, La., 351 So.2d 493 (1977).

ASSIGNMENTS OF ERROR NOS. 3 AND 4

During the direct examination of Detective James Hagan, the prosecutor questioned the witness concerning the defendant’s refusal to give any statement to the police without the presence of his attorney and defendant’s refusal to sign a waiver of rights form. At trial, defense did object to these questions. He argued that the question relating to the defendant’s refusal to give a statement without the presence of his attorney called for hearsay. When the prosecutor asked questions concerning the waiver of rights form, the defense requested the trial judge to give an admonition to the jury. The trial judge granted the request.

The defense never objected at trial that the questions constituted prejudicial remarks concerning the exercise of defendant’s right to remain silent. Nor did the defense request a mistrial. The only action requested by defendant was granted.

These assignments are without merit.

ASSIGNMENT OF ERROR NO. 5

In this assignment of error, the defendant complains of the admission by the trial judge of a telephone conversation between the defendant and Sergeant John Mahoney. Sergeant Mahoney had been to defendant’s residence, where he found defendant’s wife injured.

Sergeant Mahoney testified, over objection, that the following morning the defendant telephoned him and told him that he thought his wife was dead. The trial judge admitted the testimony, ruling that conversation was part of the res gestae. Because of the lapse of time and the absence of a showing that the statement was uttered “under the immediate pressure of the occurrence,” we agree with defense counsel that it was not part of the res gestae. See LSA—R.S. 15:447, 448. As the prosecutor contended in the trial court, however, we are of the view that the statement was admissible as a declaration against penal interest. See State v. Gilmore, La., 332 So.2d 789 (1976) and the authorities cited.

On this basis, we conclude that the assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 8

The defendant contends that the trial court erroneously overruled his objection to the prosecutor’s questions concerning the defendant’s failure to make statements to law enforcement officers and to testify before the Grand Jury. An examination of the record fails to disclose an overruled objection on these grounds.

Initially, during the State’s cross-examination of the defendant, the defense raised this objection:

“He’s [the prosecutor] not asking a question, they have, the State has not asked any questions to the defendant pri- or to this day and if the State is willing to pinpoint which question they are talking about, which time they attempted to question Mr. Lawrence.”

After clarification, the defense acquiesced in this line of questioning. Subsequently, the defense objected to a question posed by the prosecutor. The trial court sustained the objection, and the defense requested no further action.

We conclude that there is no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 9

The defendant argues that the trial court erred in allowing Detective James Hagan to testify on the State’s rebuttal. During the State’s presentation of its case, Hagan inadvertently violated the court’s sequestration rule. He was present in the trial judge’s chambers when the testimony of a witness, John Mahoney, was allegedly discussed. The trial court ruled that the State could not recall Hagan during the State’s presentation of its case.

During the rebuttal, Hagan was called as a witness. The defense objected, contending that Hagan had violated the sequestration order and thus was precluded from testifying. The trial court noted that the violation of the order was not the witness’s fault. Exercising its discretion under Louisiana Code of Criminal Procedure Article 764, the court allowed Hagan to testify but ruled he could not testify to anything related to Mahoney’s testimony.

Sequestration is designed to prevent the influencing of witnesses by the testimony of prior witnesses and to strengthen the role of cross-examination in developing the facts. State v. Jackson, La., 362 So.2d 1082 (1978); State v. Mullins, La., 353 So.2d 243 (1977). Article 764 permits the trial court to modify its sequestration order in the interest of justice, granting discretion in the trial judge. A review of the record establishes that no undue influence resulted from the inadvertent violation of the sequestration order. The limitation on the witness’s rebuttal testimony adequately protected the defendant’s rights.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 10

During the State’s rebuttal, the prosecutor questioned Detective Hagan about the location of the dining table and chairs in the defendant’s kitchen. After Hagan testified as to the location of these items, the prosecutor elicited testimony concerning a sketch made by this witness. Apparently, Hagan had made a crime-scene sketch on the day he investigated Mrs. Lawrence’s death. The State attempted to introduce this sketch into evidence. The defense objected, arguing that Hagan was not a skilled draftsman and that the sketch was inaccurate. The witness was traversed by the defense, and he testified that the drawing was not to scale and that the sketch was an approximation.

The trial court correctly allowed the State to introduce the drawing. It corroborated the testimony of the witness and was drawn by him on the day he investigated the crime scene. The defense was allowed to elicit testimony which pointed out the inaccuracies of the drawing and the fact that if there were discrepancies between the sketch and the photographs taken of defendant’s home, the photographs would show the correct scene. The lack of skill as a draftsman and the inaccuracies of the drawing go to the weight to be accorded to the sketch but do not defeat its admissibility-

We conclude that the assignment of error is without merit.

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

DENNIS, J.,

dissents, finding that the defense attorney’s objection sufficiently apprised the trial judge of the violation of defendant’s privilege against self-incrimination.

      . The trial court gave the following admonition:
      “The Constitution of the United States guarantees every accused person the right to remain silent; it places an encumbent duty upon the law enforcement officers to go through this business of informing him of his constitutional rights. You’re to draw no conclusions whatsoever if the accused did not agree to sign or agree to say anything, because he was told he didn’t have to.”

      . Defense counsel stated: “Then we’ll let him answer.” [Tr. 462.]


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Jack R. JONES.
    No. 62676.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    Rehearing Denied Jan. 26, 1979.
    J. Stacey Freeman, Freeman & Hall, Shreveport, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., Bobby L. Stromile, Asst. Dist. Atty., for plaintiff-relator.
   SANDERS, Chief Justice.

The State charged the defendant, Jack R. Jones, with possession of marijuana with the intent to distribute, a violation of LSA-R.S. 40:966A. The defendant filed a motion to suppress, and the district court sustained it. We granted the State’s application to review this ruling. State v. Jones, La., 361 So.2d 1213.

On March 4, 1978, Lieutenant Scotty Henderson and Sergeant Ricky Spier executed an affidavit for a search warrant. The affidavit was sworn to and subscribed before the Honorable Monty M. Wyche, Judge, Twenty-Sixth Judicial District Court. Judge Wyche issued the search warrant. The search was executed -the same day, and the officers found four and one-half pounds of marijuana at the scene of the search.

The trial judge granted the defendant’s motion to suppress on the basis that the affidavit failed to state sufficient facts to establish the reliability of the confidential informant. In State v. Paciera, La., 290 So.2d 681 (1974), we set forth the rules for issuance of a search warrant. We held that the affidavit submitted to the magistrate may be based entirely upon hearsay, but, if so, it must set forth the underlying circumstances and details sufficient to provide a substantial factual basis upon which the magistrate can find reliable both the informant and the information given by him.

The defendant contends that the affidavit is insufficient to establish the reliability of the confidential informant. We find that the affidavit states sufficient circumstances and details to establish the reliability of the informant.

Recitations in an affidavit that the informant has previously given information leading to arrests adequately supports the informant’s reliability. State v. Anderson, La., 357 So.2d 547 (1978); State v. Ballansaw, La., 350 So.2d 146 (1977); State v. Culotta, La., 343 So.2d 977 (1976); State v. Sierra, La., 338 So.2d 609 (1976).

The present affidavit recites that the informant, designated by number, has given information in the past concerning narcotics traffic, which, after investigation, proved to b3. true. On several occasions, he has given information leading to narcotics arrests and seizure of drugs. Under the cited decisions, these facts are sufficient to support the reliability of the informant. Hence, the trial judge erred in granting the motion to suppress.

For the reasons assigned, the ruling of the trial judge is reversed, the motion to suppress is overruled, and the case is remanded to the trial court for further proceedings consistent with the views herein expressed.

      . The affidavit in application for the search warrant reads:
      “BEFORE ME, the undersigned authority, personally appeared: Lt. Scotty Henderson and Sgt. Rickey Speir, Bossier City Police Department who, being first duly sworn, deposed and said:
      “That they have good reason to believe that located in the premises described as follows:
      “1617 Cline Street, Bossier City, Bossier Parish, Louisiana there is now located the following property which is evidence of the commission of an offense against the laws of the State of Louisiana: Marijuana.
      “That affiant(s) believe said property to be so located because: On or about March 3, 1978 the affiants were contacted by CI78H111 who stated to them that there is a white male named Jack Jones, who resides at 1617 Cline Street, Bossier City, Bossier Parish, Louisiana who is a dealer of marijuana.
      “CI78H111 further stated to affiants that he has been legally and lawfully within this residence within the past 48 hours and while inside did in fact observe a large quantity of marijuana. CI78H111 stated to affiants that Jack Jones stated to him that he was selling the marijuana for $15. an ounce or $125 a pound.

        “This confidential informant, CI78H111 has been proven reliable to affiants in the past in that he has given them valuable information concerning narcotics traffic that añer having been investigated always proved to be true and accurate. On several occasions C178H111 has given us information that has led to narcotic arrests and the seizure of quantities of drugs.

      “Based upon the above given information, the affiants believe that they have good reasonable and probable cause to believe that now located within the residence at 1617 Cline Street, Bossier City, Bossier Parish, Louisiana there is a quantity of marijuana and request that a search warrant be issued for this address and its curtilage.” [Emphasis supplied.]


author: PER CURIAM.

text:
    STATE of Louisiana v. Polete COUNTY.
    No. 62737.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    Rehearing Denied Jan. 26, 1979.
    James L. Womack, Jim W. Wiley, Winn-field, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Charles B. Bice, Dist. Atty., Kermit M. Simmons, Douglas H. Allen, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Polete County was indicted by the grand jury for the first degree murder of Lewis B. Young in violation of La.R.S. 14:30. After trial by jury, defendant was found guilty as charged. A sentencing hearing was conducted before the same jury that determined the issue of guilt, and the jury unanimously recommended that defendant be sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence. The trial judge sentenced defendant in accordance with the recommendation of the jury. On appeal, defendant relies on two assignments of error for reversal of his conviction and sentence.

We have reviewed the record and find no merit to defendant’s assignments of error. Accordingly, we affirm the conviction and sentence.

DECREE

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