author: WALKER, Justice, for the Court:

text:
    METHODIST HOSPITAL, a Tennessee General Welfare Corporation v. Ann SLACK et al.
    No. 48515.
    Supreme Court of Mississippi.
    April 20, 1976.
    Rehearing Denied May 11, 1976.

      Holcomb, Dunbar, Connell, Merkel & Tollison, Clarksdale, for appellant.
    John S. Holmes, Yazoo City, for appel-lees.
    Before GILLESPIE, C. J., and WALKER and BROOM, JJ.
   WALKER, Justice, for the Court:

This is an appeal from the Chancery Court of Yazoo County, Mississippi, which overruled appellant’s general demurrer to appellees’ bill of complaint seeking to remove the Methodist Hospital’s claim to Chicora Plantation as a cloud on their title.

The Methodist Hospital (appellant) is the primary beneficiary named in the will of Miss Mamie M. Thomas who died testate November 18, 1958.

The appellees (complainants below) are the heirs at law of Miss Thomas.

Involved is the interpretation to be placed on the constitutional and statutory mortmain provisions of our law.

Section 270 of the Mississippi Constitution provides:

No person leaving a spouse or child, or descendants of child shall, by will, bequeath or devise more than one-third of his estate to any charitable, religious, educational or civil institutions, to the exclusion of such spouse or child, or descendants of child, and in all cases the will containing such bequest or devise must be executed at least ninety days before the death of the testator, or such bequest or devise shall be void.
Provided, however, that any land devised, not in violation of this section, to any charitable, religious, educational, or civil institution may be legally owned, and further may be held by the devisee for a period of not longer than ten years after such devise becomes effective, during which time such land and improvements thereon shall be taxed as any other land held by any other person, unless exempted by some specific statute. (Emphasis added).

Section 270 of the Constitution is codified verbatim in Mississippi Code Annotated section 91-5-31 (1972) with the'addition of the following paragraph:

Provided further, that within said period of ten years during which such land may be held, the charitable, religious, educational, or civil institution holding the same shall have the power and right to sell and convey the said lands so held, or any part thereof; and its deed of conveyance may be treated as passing such title thereto as was possessed by the testator, or the said land, or any part thereof, may be leased for a length of time not extending beyond the expiration of the period during which it may be legally held by the lessor institution. If such land be not sold and disposed of within the said period of ten years, then in that event, at the expiration of the said period of ten years, it shall revert to the heirs at law of the testator under whose will it was devised to the institution holding it, or to the devisees under such will, as the case may be. (Emphasis added).

The specific question presented is: May the constitutional and statutory proscription against certain institutions holding for more than ten years land devised to them be avoided by devising the land.in trust to a non-proscribed institution for the benefit of a proscribed institution? The answer is no.

Mortmain in Mississippi has an interesting history, first appearing in the Code of 1857. These sections were dropped from the Code of 1880 but were included as sections 269 and 270 of the Constitution of 1890. These two sections remained both as statutory and constitutional law until repealed in 1940 and replaced by what is now section 270 of the Constitution and section 91-5-31 of the Mississippi Code of 1972. The history of mortmain in Mississippi may be found in the editor’s note under sections 269 and 270, repealed, of the Constitution of the State of Mississippi and the historical references found in cases construing the law. There are thirteen Mississippi cases dealing with the subject, Blackbourn v. Tucker, 72 Miss. 735, 17 So. 737 (1895); Hailey v. McLaurin’s Estate, 112 Miss. 705, 73 So. 727 (1916); Maas v. Sisters of Mercy of Vicksburg, 135 Miss. 505, 99 So. 468 (1924); Greely v. Houston, 148 Miss. 799, 114 So. 740 (1927); Ander son v. Gift, 156 Miss. 736, 126 So. 656 (1930) ; National Bank of Greece v. Savarika, 167 Miss. 571, 148 So. 649 (1933); Wright v. Mary Galloway Home for Aged Women, 186 Miss. 197, 187 So. 752 (1939); Old Ladies’ Home Assn. v. Grubbs’ Estate, 191 Miss. 250, 199 So. 287 (1940); Coleman v. Whipple, 191 Miss. 287, 2 So.2d 566 (1941) construing the old law; and, Bell v. Mississippi Orphans Home, 192 Miss. 205, 5 So.2d 214 (1941); Mississippi School for the Blind v. Armstrong, 216 Miss. 348, 62 So.2d 369 (1953); Mississippi College v. May, 235 Miss. 200, 108 So.2d 703 (1959), and Crosby v. Alton Ochsner Medical Foundation, 276 So.2d 661 (Miss. 1973) construing the new law.

Early mortmain statutes had as their purpose the prevention of various evils and abuses, actual or imagined, connected with devises and bequests to charities and churches. Since such corporate bodies have perpetual existence, forfeiture and escheats were lost to the crown, taxes were lost and many feudal dues were avoided. An excellent discussion of the early purposes of mortmain (deadhand) statutes is found in Coleman v. Whipple, supra. In this country and more recently, one of the purposes of mortmain is to prevent one who would not be charitable at his own expense to be so at the expense of his heirs, Blackbourn v. Tucker, supra, another is to prevent the accumulation of excessive quantities of land in such institutions, Mississippi College v. May, supra, and another is to protect a testator’s heirs from improper influences when he is in extremis, Bell v. Mississippi Orphans’ Home, supra.

In 1940, when the old sections, 269 and 270 of the Constitution of 1890 and sections 3564 and 3565 of the Mississippi Code of 1930 were repealed and replaced by the present section 270 of the Mississippi Constitution and section 91-5-31 of the Code of 1972, the Legislature was, in this writer’s opinion, attempting to establish a neutral ground which would prevent the so-called evils that the original mort-main laws were designed to eliminate, yet at the same time allow a testator an opportunity to aid and promote religious, educational, charitable and civil institutions by devises and bequests within certain limitations and conditions.

The present mortmain provisions of our constitution and statute contain three limitations :

(1) No more than one-third of an estate (land and personal) can be left to these institutions if the testator leaves a spouse or descendant;

(2) The will must be executed at least ninety days prior to the death of the testator if a devise or bequest to such an institution is contained therein and the testator had a spouse or descendants; and

(3) Land devised to such institutions may not he held for more than ten years.

We are not here concerned with the first two provisions, the testatrix having violated neither.

THE FACTS

Miss Mamie M. Thomas died testate in Memphis, Tennessee, on or about November 18, 19S8, leaving an estate after specific bequests valued (in 1963) at $2,000,000 including a 167/216 undivided interest in Chicora Plantation in Yazoo County, Mississippi. Her interest amounted to approximately 500 acres.

After itemizing numerous specific bequests, Miss Thomas, in Item XXII of the will left her 167/216 interest in Chi-cora Plantation to the Union Planters National Bank of Memphis, Tennessee, as trustee. The trust was for a period of fifteen years and the trustee was directed to rent out Miss Thomas’ interest in the Plantation, pay taxes and other expenses and further provided that any net revenue was to become part of the residue of her estate and pass under the terms of the will with reference to the residue. At the end of the fifteen-year trust period, Miss Thomas’ interest in Chicora Plantation was to “become part of the residue of my estate and pass under the provisions of this will.” (The same paragraph of the will provided for an early termination of the trust in the event that oil was discovered; however, it is undisputed that oil was not discovered on the property).

The trust contained no power in the trustee to sell testatrix’s interest in Chi-cora.

Item XXIII of Miss Thomas’ will then provided:

As a memorial to my beloved brother, William Green Thomas, but subject to the conditions and limitations hereinafter set forth, I offer to make over to the Methodist Hospital of Memphis, Shelby County, Tennessee ... all the rest, residue and remainder of my estate, real, personal and mixed, wherever located. . The conditions and limitations on which this offer is made are as follows:
(1) The Methodist Hospital shall have ten (10) years from the date of my death within which to decide whether it will accept my offer . . . it is not required to wait the full ten years, but may accept my offer at any time it desires within the ten year period after my death. . .
(2) In the event the Methodist Hospital accepts my offer, then it shall notify my Executors in writing of this fact and in such writing it shall acknowledge receipt of my estate and agree to faithfully carry out all the terms and provisions herein imposed upon it by this will, and as of the date of such acceptance my estate is to be valued and the Hospital shall contribute an amount equal to the value of my estate.
(3)The entire residue of my estate and the amount to be contributed by the Methodist Hospital as indicated in the preceding paragraph shall be used by the Methodist Hospital in the erection and equipping of a hospital building to be devoted to the care of the sick and to the relief of pain and suffering of humanity [and to be named after Miss Thomas’ brother, William Green Thomas].

Item XXIV then provided for an alternate devise if the hospital refused to accept her offer.

The Methodist Hospital accepted the offer upon the terms contained in the will on or about September 19, 1963.

On January 25, 1974, after the expiration of the fifteen-year trust period, Union Planters National Bank of Memphis conveyed the 167/216 undivided interest in Chicora Plantation to the Methodist Hospital.

Pertinent dates are: (1) Mamie M. Thomas died on November 18, 1958; (2) The trust, according to the terms of the will was to exist for a period of fifteen years from Miss Thomas’ death which made the expiration date November 18, 1973; (3) The Methodist Hospital accepted the offer contained in the will on or about September 19, 1963, by matching with $2,000,000, the then value of the estate ; and (4) The trustee conveyed title to testatrix’s interest in Chicora Plantation to the Methodist Hospital on January 25, 1974, and the hospital continues to hold title.

The appellant argues: (a) that mort-main laws are not applicable here asserting that by the terms of the will the title to testatrix’s interest in Chicora did not vest and could not vest in the Methodist Hospital until fifteen years from the date of the testatrix’s death or until petroleum was discovered on the land devised; that it merely had a beneficial interest in the land after its acceptance of the offer in 1963; that it had no legal title to, possession of, or right of disposition of the property until November 18, 1973, when the trust terminated, and that the devise did not become effective within the meaning of the Constitution and the statute until such date; (b) that a devise in trust to a non-proscribed institution for the benefit of a proscribed institution is not within the prohibitions of the Constitution or the statute; and that (c) The Methodist Hospital would be more aptly described as a purchaser than a devisee.

As stated earlier, the specific question presented is: May the constitutional and statutory proscription against certain institutions holding for more than ten years land devised to them be avoided by devising the land in trust to a non-proscribed institution for the benefit of a proscribed institution?

An analogous situation is found in Mississippi College v. May, 235 Miss. 200, 108 So.2d 703 (1959). There the heirs at law of Dr. J. V. May filed a bill of complaint against Mississippi College and others to remove Mississippi College’s claim to certain property as a cloud on their title. In that case, Item IV of Dr. May’s will provided :

“To Mississippi College, Clinton Mississippi, I devise and bequeath my 465 acre farm in district two Claiborne County, Mississippi, at the proper time the same is to be converted into cash and held as a perpetual trust fund or endowment, and the proceeds therefrom shall annually go to the support of Christian Education in that institution, . . .” (235 Miss, at 209, 108 So.2d at 706).

Dr. May died in 1940, and ten years expired in 1950, but Mississippi College within that time did not sell or convey the land. Hence it was charged that, upon expiration of the ten years, the lands immediately reverted to the complainants, the heirs of Dr. May.

The college argued that Dr. May’s will designated Mississippi College as a mere trustee to hold the land and proceeds from it for scholarships to students within designated categories; that the devise was not within Section 270 arguing that the section refers only to a devise of land directly to certain institutions; and, that the conveyance to the college as trustee for the benefit of others was not such a prohibited direct conveyance of title to the college, and that it held only a legal title for the benefit of others. In answer to their contention, the Court said:

We do not think that a bequest or devise to an eleemosynary corporation in trust for the very purposes for which it is organized prevents operation of the provisions of Sec. 270. Hastings v. Rathbone, 1922, 194 Iowa 177, 188 N.W. 960, 23 A. L.R. 392 ; 76 C.J.S. Religious Societies § Sic; 11 C.J., Charities, Sec. 68, page 351; 14 C.J.S. Charities § 45, page 498.
One purpose of Constitution Sec. 270 was to prevent the undue accumulation of excessive quantities of land in the hands of prohibited types of institutions. Since this objective could not be accomplished by the creation of a trust with the institution being the trustee and beneficiary, as the College is here, the purpose of Sec. 270 could and would be effectively nullified. .
Former Sec. 269, repealed in 1940, was expressly applicable to every devise or bequest of lands to religious corporations or any person or body politic, ‘in trust, either express or implied, secret or resulting.’ The second paragraph of the present Constitution Sec. 270 does not expressly so state, but we hold that its terms are necessarily applicable to a trust of the present type which is created to promote the very purposes for which the trustee is organized. (235 Miss. 216-217, 108 So.2d at 709).

In a specially concurring opinion in Mississippi College v. May, supra, Justice Hall, speaking out strongly against using a trust to circumvent the effect of Section 270 of the Constitution said: “I am unwilling to give my assent to any subterfuge whereby the effect of Sec. 270 can be nullified, especially on the theory that the land is merely held in trust and may be held indefinitely. If we should ever accept such a theory, we would simply be repealing Sec. 270 in toto, which I am unwilling to do.” (235 Miss. at 229, 108 So.2d at 715.)

In deciding the case now before the Court, it must be kept in mind that under the terms of Miss Thomas’ will when the Hospital accepted the bequest to it in 1963 by matching the value of the entire estate with $2,000,000, the Hospital immediately became entitled to all of the assets of the estate with the exception of Miss Thomas’ interest in Chicora Plantation which was devised in trust to the Union Planters National Bank. However, it is pertinent to note that once the Hospital accepted the bequest in 1963, it became entitled, by virtue of the residuary clause of the will, to any profits resulting from the trustee’s management of Chicora Plantation; and, by the terms of the will, at the end of the fifteen-year trust period, Miss Thomas’ interest in Chicora would pass to the Hospital. After accepting the conditions of the will, the Hospital was the sole beneficiary of the trust and was also to be the recipient of the corpus of the trust at the expiration of fifteen years. The trustee had no power to sell Chicora. It is therefore evident that the trustee’s role was for the sole purpose of delaying the Methodist Hospital from taking title to Chicora, yet allowing it to receive the profits therefrom, in an apparent attempt to prevent the running of the ten-year period of limitation during which a proscribed institution may legally own real property as provided for in Section 270 of the Constitution.

This Court has held that one purpose of Section 270 of the Constitution is to prevent the undue accumulation of lands in certain classes of institutions. Mississippi College v. May, supra. That purpose cannot be defeated by devising lands in trust to a non-proscribed institution to be held in excess of ten years for the sole benefit of one or more proscribed institutions. For us to hold otherwise would nullify what the Court has declared to be one of the fundamental purposes of Section 270 of the Constitution.

We do not speculate as to whether the Hospital could have successfully invoked the aid of a court of equity to have the trust terminated under the theory of equitable approximation since no such effort was made in that respect by the appellant Hospital.

Without deciding the question, it appears that once the Hospital accepted the terms of the will, that it had a beneficial interest in Chicora which it could have disposed of within ten years of Miss Thomas’ death and thereby prevented a reverter of the property to Miss Thomas’ heirs.

The appellant Hospital’s contention that it would be more aptly described as a purchaser than a devisee is unsupported by authority, and we deem it to be without merit.

We are of the opinion that the lower court correctly overruled the appellant’s demurrer to appellee’s bill of complaint, and this cause is therefore affirmed.

This case was considered by a conference of the Justices en banc.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, SUGG and BROOM, JJ., concur.

LEE, J., took no part as this case was considered before his appointment.

      . [Text of the Repealed section 269 of the Constitution of 1890].
      Section 269. Every devise or bequest of lands, tenements, or hereditaments, or any interest therein, of freehold or less than freehold, either present or future, vested or contingent, or of any money directed to be raised by the sale thereof, contained in any last will and testament, or codicil, or other testamentary writing, in favor of any religious or ecclesiastical corporation, sole or aggregate, or any religious or ecclesiastical society, or to any religious denomination or association of persons, or to any person or body politic, in trust, either express or implied, secret or resulting, either for the use and benefit of such religious corporation, society, denomination, or association, or for the purpose of being given or appropriated to charitable uses or purposes, shall be null and void, and the heir at law shall take the same property so devised or bequeathed, as though no testamentary disposition had been made.

      . [Text of the Repealed section 270 of the Constitution of 1890],
      Section 270. Every legacy, gift, or bequest of money or personal property, or of any interest, benefit, or use therein, either direct, implied, or otherwise, contained in any last will and testament or codicil, in favor of any religious or ecclesiastical corporation, sole or- aggregate, or any religious or ecclesiastical society, or to any religious denomination or association, either for its own use or benefit or for the purpose of being given or appropriated to charitable uses, shall be null and void, and the dis-tributees shall take the same as though no such testamentary disposition had been made.

      . 3564 (Repealed). Statutes of mortmain.— Every devise or bequest of lands, tenements, or hereditaments, or any interest therein, or freehold or less than freehold, either present or future, vested or contingent, or of any money directed to be raised by the sale thereof, contained in any last will and testament, or codicil, or other testamentary writing, in favor of any religious or ecclesiastical corporation, sole or aggregate, or any religious or ecclesiastical society, or to any religious denomination or association of persons, or to any person or body politic, in trust, either express or implied, secret or resulting, either for the use and benefit of such religious corporation, society, denomination, or association, or for the purpose of being given or appropriated to charitable uses or purposes, shall be null and void, and the heir at law shall take the property so devised or bequeathed, as though no testamentary disposition had been made.

      . 3565 (Repealed). Statutes of mortmain— bequests. — Every legacy, gift, or bequest, of money or personal property, or of any interest, benefit, or use therein, either direct, implied, or otherwise, contained in any last will and testament, or codicil, in favor of any religious or ecclesiastical corporation, sole or aggregate, or any religious or ecclesiastical society, or to any religious denomination or association, either for its own use or benefit, or for the' purpose of being given or appropriated to charitable uses, shall be null and void, and the dis-tributees shall take the property as though no such testamentary disposition had been made.

      . ITEM XXII OF THE WILL. To the Union Planters National Bank of Memphis, Tennessee as Trustee I make over ■ my 167/216ths interest in Chicora Plantation located about nine miles from Pickens, Mississippi in Yazoo and Holmes Counties of that State. Oil companies from time to time have secured rights to bore wells for the purpose of determining whether there is petroleum on the property, and in the event petroleum is found, the property will become very valuable. I direct the Trustee to rent out my interest in the plantation, pay taxes and other expenses and any net revenue is to become part of the residue of my estate and pass under the terms of this will with reference to the residue. I direct the Trustee from time to time to grant the privilege to responsible oil companies to bore wells on the land for the purpose of determining whether there is petroleum beneath. This trust shall continue for the period of fifteen (16) years from the date of my death at which time the trust shall cease and my interest in this farm shall become part of the residue of my estate and pass under the provisions of this will. In the event petroleum is found upon the property during the said period of fifteen (15) years, then at the date of the finding of the petroleum, this trust shall cease and the property shall pass under the provisions relative to the residue of my estate under this will.

      . ITEM XXIII OF THE WILL. As a memorial to by [sic] beloved brother, William Green Thomas, but subject to the conditions and limitations hereinafter set forth, I offer to make over to the Methodist Hospital of Memphis, Shelby County, Tennessee, located on the south side of Union Avenue between South Bellevue Street on the west and South Claybrook Street on the east, all the rest, residue and remainder of my estate, real, personal and mixed, wherever located, including my annuity policies in the Penn Mutual Life Insurance Company and the Prudential Life Insurance Company and including any policies which hereafter may be taken out by me in which an interest to me is reserved. The conditions and limitations on which this offer is made are as follows:
      (1) The Methodist Hospital shall have ten (10) years from the date of my death within which to decide whether it will accept my offer and until such acceptance the Executors of my will hereinafter named shall keep my estate intact and invest and reinvest the funds for the purpose of receiving income which they shall accumulate. While the Methodist Hospital is given the period of ten (10) years within which to decide whether it will accept my offer, it is not required to wait the full ten years, but may accept my offer at any time it desires within the ten year period after my death.

        (2) In the event the Methodist Hospital accepts my offer, then it shall notify my Executors in writing of this fact and in such writing it shall acknowledge receipt of my estate and agree to faithfully carry out all the terms and provisions herein imposed upon it by this will, and as of the date of such acceptance my estate is to be valued and the Hospital shall contribute an amount equal to the value of my estate.
      (3) The entire residue of my estate and the amount to be contributed by the Methodist Hospital as indicated in the preceding paragraph shall be used by the Methodist Hospital in the erection and equipping of a hospital building to be devoted to the care of the sick and to the relief of pain and suffering of humanity. This building shall be called The William Green Thomas Hospital and on the outside thereof above the main entrance there shall be installed in large letters cut in stone reading “THE WILLIAM GREENE THOMAS HOSPITAL Erected in Loving Memory by his Sisters” and the date of erection. .

      . ITEM XXIV OE THE WILL. In the event the Methodist Hospital does not accept my offer as above pointed out, then my executors shall cause to be created a charitable corporation to be organized under the laws of the State of Tennessee and to be known as THE WILLIAM GREENE THOMAS FOUNDATION with its situs in the City of Memphis, Tennessee, and after the corporation has been duly organized and proper officers elected, the Executors of my will shall transfer to such corporation all the funds and property, real, personal and mixed, belonging to my estate. My Executors in organizing the corporation shall select Mr. John R. Flip-pin, Mr. Holmes Sherard of Mississippi and Mr. Robert N. Lloyd, Jr., of Memphis, Tennessee as the incorporators and the first Board of Directors, As the directors die or resign, I request that the remaining directors shall fill such vancancies [sic] with suitable men of outsatnding [sic] character and business ability.
      The corporation when so created shall invest and reinvest the funds belonging to it until a sufficient amount has been accumulated to erect, equip and maintain the hospital which shall be built on a suitable lot in the City of Memphis, Shelby County, Tennessee which shall be bought and the hospital shall be known and designated as The William Greene Thomas Hospital.
      The lot to be so selected on which to erect the hospital shall not be on what is known as the Medical Center but it must be in a conspicuous and desirable location where it may be seen by all passers-by.
      After the hospital building has been erected and equipped, it shall be operated by the corporation to be formed as above provided for the benefit of the sick.


source: Caselaw Access Project

author: MARCUS, Justice. SUMMERS, Justice

license: Public Domain

text:
    Mrs. Patsy W. TEMPLE, Ind., etc., et al. v. LIBERTY MUTUAL INS. CO. et al.
    Nos. 56803, 56928.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    Rehearing Denied May 14, 1976.

      Arthur B. Haack, Walker P. Macmurdo, Baton Rouge, for plaintiff-applicant in No. 56803 and for plaintiff-respondent in No. 56928.
    Robert J. Vandaworker,. Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendant-applicant in No. 56928 and for defendant-respondent in No. 56803.

       Dixon and Dennis, .TJ., were of the opinion that a rehearing should be granted.

   MARCUS, Justice.

Mrs. Patsy W. Temple, individually, as administratrix of her husband’s succession, and as tutrix of their three minor children, instituted this action against defendants for damages arising out of an automobile accident in which her husband was fatally injured. After trial by jury, a verdict was returned in favor of plaintiffs, who were awarded, in the aggregate, a total sum of $741,000.00 in damages. The trial judge signed a judgment in accordance with the verdict and subsequently denied defendants’ motion for a new trial. Defendants appealed. The court of appeal affirmed the trial court’s judgment insofar as it held defendants liable, but reversed the awards of damages in favor of plaintiffs and remanded the case to the trial court for a new trial on the issue of damages only. 316 So.2d 783 (La.App. 1st Cir. 1975). We granted the applications of both parties for certiorari. 320 So.2d 555, 556 (La.1975).

The court of appeal gave two reasons for its decision to remand the case for a new trial on the question of quantum. First, the court stated that the trial judge instructed the jury erroneously regarding the damages plaintiffs could recover for the decedent’s pain and suffering resulting from the accident. It concluded that this could have improperly influenced the jury in making its awards for damages. Second, it felt that the closing argument of plaintiffs’ counsel was so prejudicial and inflammatory that it was reasonably calculated to incite the jury to award damages in excess of those the jury might have awarded in the absence of such argument.

We are of the opinion that the court of appeal erred in remanding the case for a new trial on the issue of quantum. In Gonzales v. Xerox Corp., 320 So. 2d 163 (La.1975), we stated that an appellate court, if it has a complete record of all the necessary evidence before it, has a constitutional duty to review the facts of a case as well as the law and to render a judgment on the merits. The court of appeal was in possession of the necessary evidence adduced at trial. Indeed, it reviewed this evidence and affirmed the jury’s finding of liability on defendants’ part. It should also have rendered a judgment on the question of quantum. An appellate court, even if it believes that errors committed at trial influenced the jury’s verdict, must undertake an independent evaluation of the facts and adjudicate the controversy before it. Gonzales, supra.

When a court of appeal has erroneously remanded a case for a new trial on account of jury trial irregularities, upon granting certiorari it has been our practice, following our holding in Gonzales, to remand summarily such a case to the court of appeal for further consideration of the trial record and for decision on the merits. See, e. g. Couto v. Oms, 323 So.2d 128 (La.1975); Reeves v. Gulf States Utilities Co., 320 So.2d 902 (La.1975). Rather than follow that procedure herein, we chose to hear arguments in this case because of our doubt as to the correctness of the appellate court’s conclusion that the jury charge regarding pain and suffering, and the rebuttal argument of plaintiffs counsel, improperly influenced the jury’s damage awards.

I.

The Trial Judge’s Instruction to the Jury on Pain and Suffering

With regard to the damages recoverable for the decedent’s pain and suffering, the trial judge instructed the jury as follows:

As to Mrs. Temple, the widow, you must consider * * * the physical pain and suffering, if any, experienced by her husband between the time of the accident and his death;
As to each of the three children * * * you must consider * * * the physical pain and suffering, if any, experienced by the father between the time of his accident and his death. In this latter regard, I instruct you that should you find that the decedent did in fact experience pain and suffering you are to award one-fourth of any monetary value placed thereon to each of the plaintiffs herein.

Defendants objected at trial that the foregoing charge was abstract in that there was no evidence that the decedent regained consciousness between the time of the accident and his death. They contend, and the court of appeal agreed with their cotention, that this instruction should not have been submitted to the jury and that the trial judge should have even instructed the jury that no award could be made for pain and suffering in this case.

In our view, the trial judge’s instruction on pain and suffering was proper. Although the decedent in this case apparently survived for only a matter of minutes after the accident, he was not killed instantaneously. Thomas L. Tyler, who heard the collision from nearby and went to the scene of the accident, testified that the decedent showed signs of life and that he “was making a gagging sound.” Upon being questioned by defense counsel as to whether decedent showed any signs of life or made any noise immediately after the accident, defendant driver, George A. Kuntz, testified that decedent made “a snoring noise.” During cross-examination by defense counsel, Officer Ray Farris testified that Trooper Shirley had told him that decedent “had moved or had a sound, or something to that effect. . . . ” Mrs. Temple testified that when she saw her deceased husband at the morgue several hours after the accident his face had a grimace on it much like ones she had seen on his face when he was in pain. Several cases in our jurisprudence have awarded damages for a decedent’s pain and suffering when there is evidence that the decedent made noises and movements indicating that he was sensitive to and aware of pain. Crisman v. Shreveport Belt Ry. Co., 110 La. 640, 34 So. 718 (1902); Caldwell v. United States Cas. Co. of New York, 129 So.2d 813 (La.App. 2d Cir.), cert. denied (1961); Langenstein v. Reynaud, 13 La.App. 272, 127 So. 764 (La.App.Orl.1930). In Andrus v. White, 101 So.2d 7 (La.App. 1st Cir.), rev’d in part on other grounds, 236 La. 28, 106 So.2d 705 (1958), it was stated that damages for pain and suffering are not precluded if there is “a scintilla of evidence of any suffering or pain on the part of the deceased by his actions or otherwise during his unconscious hours from the time he was injured until his death. . ” Since there was some evidence the decedent uttered sounds that the jury could reasonably construe to be manifestations of pain, the trial judge did not err in submitting the issue of the decedent’s pain and suffering to the jury for its consideration. The existence and extent of such pain and suffering was a question for the jury to determine.

II.

The Rebuttal Argument of Plaintiffs’ Counsel

Plaintiffs’ counsel, during the course of his rebuttal argument to the jury, made outright appeals to prejudice against defendant insurer, characterizing it as soulless and devoid of feeling, charging unfairness and oppression in its dealing with plaintiffs, and even suggesting to the jury that it could punish the insurer through its verdict. We agree with defendants and with the court of appeal that such argument was improper.

We believe, however, that corrective measures were taken by the trial judge that served to counteract the effect of plaintiff’s rebuttal argument upon the jury. The trial judge, in his instructions to the jury, cautioned that it could award no damages for punishment, that defendant insurer and plaintiffs should be treated as equals, and that the argument of counsel was not evidence.

We also note that defense counsel made only two objections, the first of which was sustained, to the remarks of plaintiff’s counsel. He entered both objections toward the close of the rebuttal argument. Defense counsel’s failure to object to several other statements that he alleges were also prejudicial constitutes a waiver of his right to complain of them on appeal. See Luquette v. Bouillion, 184 So.2d 766 (La.App. 3d Cir. 1966).

Moreover, counsel has great latitude in argument before a jury, subject, however, to regulation and control by the court, whose duty it is to confine argument within proper bounds. The trial judge denied defendants’ motion for a new trial, which alleged, inter alia, that the prejudicial argument of plaintiffs’ counsel warranted the granting of a new trial. The trial judge is in a better position than an appellate court to determine possible prejudicial effects resulting from counsel’s argument before a jury. Therefore, his finding that counsel for plaintiffs’ argument was not so prejudicial as to warrant the granting of a new trial should be accorded much weight.

In view of the circumstances set forth above, we find that the court of appeal erred in concluding that the rebuttal argument of plaintiffs’ counsel was so prejudicial as to be reversible error.

Conclusion

We therefore remand this case to the court of appeal and direct it to review the trial record and render judgment on the issue of quantum. Because defendants’ contention that the jury was improperly influenced by the jury charge regarding pain and suffering and the rebuttal argument of plaintiffs’ counsel is without merit, the court of appeal is not to disturb the awards on this account. It should exercise its constitutional duty to review the law and facts and thereafter render a judgment on quantum based upon the merits, determining whether the jury has abused the “much discretion” that the law accords it in awarding damages. La.Const. art. 5, § 10(B) (1974); La.Civil Code art. 1934(3).

We express no opinion concerning the liability of defendants in this case or the correctness of the jury’s damage awards. Either party has the right to have us consider these issues should he apply to this court for a writ of certiorari from a final judgment of the court of appeal.

DECREE

For the reasons assigned, that portion of the judgment of the court of appeal reversing the awards for damages made in favor of plaintiffs by the trial court and remanding the matter for a new trial on the issue of damages is reversed, and the case is remanded to the court of appeal for further proceedings not inconsistent with the views herein expressed. The costs of this proceeding are assessed equally against the parties; further assessment of costs is to await the outcome of the litigation.

SUMMERS, J., concurs with reasons.

DIXON, J., concurs.

SUMMERS, Justice

(concurring).

Without evidence to support the conclusion, I cannot agree that the unconscious Mr. Temple suffered pain while in that state.

      . La.Const. art. 5, § 10(B) (1974).

      . It should be noted that the jury did not apportion its award to each plaintiff into items of damage. It therefore cannot be determined how much, if any, of its awards are attributable to its calculation of the decedent’s pain and suffering.

      . See 75 Am,Jur.2d § 280 et seq., at 356-63 and cases cited therein.


author: DENNIS, Justice. DIXON, J.,

text:
    STATE of Louisiana v. Cedric HARGROVE.
    No. 57176.
    Supreme Court of Louisiana.
    March 29, 1976.
    Rehearing Denied May 14, 1976.

      James D. Sparks, Jr., Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant Hargrove was charged by bill of indictment with aggravated rape in violation of La.R.S. 14:42. After trial by jury he was convicted and sentenced to death. This appeal is founded on nine assignments of error.

The rape victim was employed as a cashier at a convenience store on July 27, 1974. Shortly after 11:30 P.M., a man entered the store, brandished a pistol and demanded money from the cash register. After receiving the money he asked the victim if she had a car at the store and when she replied affirmatively he ordered her to accompany him outside. As they were leaving, a young woman, Pauline Parker, entered the store. The robber ordered her into the store, and he and the cashier departed in the victim’s vehicle. Another witness, Wendell Kennedy, drove up at about this time and saw the two get into the car. The victim testified that her assailant forced her to drive to a sand and gravel pit and to perform sexual intercourse with him. Afterward he had her drive back into the city and let him out of the vehicle. Then the victim went immediately to the police station and reported the crime. By this time the two witnesses had already informed the police of what they had observed at the convenience store.

ASSIGNMENT OF ERROR NO. 1

Defense counsel moved during trial for an examination and hearing on defendant’s mental capacity to proceed. La.C.Cr.P. art. 641 et seq. The court denied the motion after hearing the testimony of defense counsel and a judicial probation officer called by the State. The attorney testified that defendant had been of no assistance to him in the case because he persisted in clinging to an irrational and incredible story exculpating himself from the crime. The probation officer, who had known the defendant for about eight years, in essence indicated that defendant, although of below average intelligence, was capable of understanding the proceedings and communicating with others.

After conviction but prior to sentence the defendant again moved for a mental examination, and the State concurred. Two psychiatrists who examined the defendant testified that, although he was of dull intelligence, he possessed the mental capacity to proceed and that there was no reason to believe he had ever lacked the ability to understand the proceedings or to assist in his defense.

Our test for mental incapacity to proceed is whether the defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense. La.C.Cr.P. art. 641. Mere weakness of mentality or subnormal intelligence does not of itself constitute legal insanity. State v. Edwards, 257 La. 707, 243 So.2d 806 (1971). Under La.C.Cr.P. art. 643 as written at the time of defendant’s trial, the trial judge within his discretion could order a mental examination of the defendant if he had reasonable ground to doubt the defendant’s mental capacity to proceed. Based upon the evidence in the record we are unable to say that the trial judge abused his discretion in finding no reasonable ground to doubt this defendant possessed the mental capacity for proceeding with trial or in refusing to order such an examination during trial.

This assignment of error has no merit.

ASSIGNMENTS OF ERROR NOS. 2, 3, 4, 6, 7 AND 8

The main thrust of these assignments is directed at two pre-trial line-ups, one being a photographic line-up, and at out-of-court confrontations between the accused and the prosecution’s eyewitnesses. Defense counsel objected to the in-court identification of defendant and to the introduction of exhibits on the ground that all of this evidence was derived from unconstitutional out-of-court identification procedures.

After talking with the victim and witnesses the investigating police officers formed a suspicion that defendant Har-grove had committed the offense. They obtained his picture from the sheriff’s photograph file and displayed it to the victim and two witnesses along with the pictures of four other persons. Each viewer of the photographs identified the defendant as the man who robbed the convenience store. Defendant was arrested and a search under warrant was made of his home during which certain tangible evidence was seized. He was placed in a line-up with four other persons and identified as the robber by the two witnesses. The victim was unable to identify anyone at the line-up. She testified this was due to exhaustion and emotional disturbance caused by her experience and lack of sleep for twenty-four hours.

First, defendant argues that he was entitled to the presence of an attorney at the line-up. However, the presence of defense counsel at a line-up is required only after the initiation of formal prosecu-torial proceedings. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); State v. Lawrence, 294 So.2d 476 (La.1974). Because the line-up in the instant case was conducted within two hours of defendant’s arrest and before the filing of a formal charge this argument is without merit.

Next, defendant argues that the line-up and photographic display were unduly suggestive and that the in-court identifications and evidence obtained from the search of defendant’s house were consequently tainted. We have inspected the photographs used in the display and a group picture of the participants in the line-up. From these exhibits and the testimony of the witnesses describing the lineup procedures we find they were conducted fairly and without suggesting to the viewers that a particular participant was under suspicion. All of the participants were of the same race and had similar physical characteristics. It is true the defendant appeared in coveralls in contrast with the others who wore a motley assortment of clothing. However, the coveralls resembled the jumpsuits worn by many as casual attire todáy and did not bear any markings visible to the viewers which would indicate defendant was dressed in prison apparel.

. Thus, we reject defendant’s argument that the identification procedures were unfair because, looking at the totality of the circumstances, the photographic and lineup identification procedures were not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L. Ed.2d 1247 (1968); State v. Jackson, 259 La. 957, 254 So.2d 259 (1971).

Nevertheless, defense counsel contends that the in-court identifications of defendant by the victim and two witnesses were improperly admitted because they were allowed to view the accused in the hallway of the courthouse before giving their testimony at trial. The record reflects that these witnesses were sworn at the beginning of the trial and instructed to remain outside the courtroom until called. The physical characteristics of the court building were such that the most convenient place for the witnesses to sit while waiting was in the only hallway leading to the courtroom. The witnesses observed the defendant seated at the counsel table when they were originally placed under oath. They also saw him being taken to and from the courtroom in handcuffs and shackles on several occasions. Although defense counsel was aware of this situation, he did not object until the afternoon of the second day of the trial when he unsuccessfully moved to suppress the identification testimony.

An out-of-court confrontation between witness and suspect raises questions similar to those presented by an impermis-sibly suggestive line-up or photographic identification. In adapting federal jurisprudence concerning improper identification procedures to a confrontation situation, the United States Fifth Circuit Court of Appeal in United States v. Johnson, 461 F.2d 1165 (5th Cir. 1972), stated:

“In Stovall v. Denno, 1967, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, the Supreme Court recognized that a confrontation between witness and suspect may be ‘so unnecessarily suggestive and conducive to irreparable mistaken identification that [the witness] was denied due process of law’. 388 U. S. at 302, 87 S.Ct. at 1972. In assessing a due process denial in the context of a confrontation, courts must consider ‘the totality of the circumstances surrounding it’. 388 U.S. at 302, 87 S.Ct. at 1972. See Foster v. California, 1969, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402; Simmons v. United States, 1968, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; Ward v. Wainwright, 5 Cir. 1971, 450 F.2d 409.” 461 F.2d at 1168.

In a similar vein we have previously indicated that, even if impermissible suggestions were made to a witness as to the identity of the suspect, due process does not mandate a reversal of the conviction if the record reveals that there existed an independent and untainted basis for the witness’ in-court identification. State v. Moore, 300 So.2d 492 (La. 1974).

We find, from a totality of the circumstances surrounding the confrontations, that, although they were undoubtedly suggestive, there existed an independent and untainted basis for each witness’ in-court identification.

All three witnesses positively identified the defendant during the pre-trial ■ photographic display. Two of the witnesses positively identified him at the pre-trial line-up, and the victim’s failure to identify any one at that time in her physical and emotional condition was certainly understandable. The victim frankly admitted that seeing the defendant in the courthouse hallway refreshed her recollection, but she also testified that she felt she could have identified him without the confrontation. During the time she was forced to spend with the defendant at the store, in her vehicle, and during the act of sexual intercourse, there was ample opportunity for her to become familiar with his characteristics. Although she testified that she did not look at his face many times, considering his proximity to her for an extended period, we conclude she was able to observe him sufficiently to enable her to identify him at the trial, which was held a little over four months after the offense occurred.

The other two witnesses’ in-court identifications were based on observations of the defendant at the convenience store rather than upon what they saw at the courthouse. Both of these witnesses had seen defendant before the crime and were somewhat familiar with his appearance. One of them had recognized the defendant on the night of the crime as a person with whom she had attended school. These witnesses never wavered in their identification of the defendant and maintained that the confrontation had not refreshed their recollection.

Furthermore, we are convinced from the evidence that the confrontations between the witnesses and the accused at the courthouse were not contrived by the prosecution for purposes of aiding their identification testimony. The conduct of the prosecution in each case must be considered as part of “the totality of the circumstances surrounding [the confrontation].” See Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967); United States v. Johnson, supra. The fact that the confrontations here were not arranged or planned by the State weighs in favor of our conclusion that the in-court identifications were properly admissible.

The last issue raised by these assignments is whether defendant’s confrontations with the witnesses at the courthouse requires reversal of his conviction because of the “absence” of counsel on these occasions. We note that defendant had an attorney who, being aware of his scheduled trips to and from the courtroom, could have been at his side. However, we pretermit the question of whether defendant was without counsel during the confrontations because we have concluded that the holding of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. (1967) that the defendant has a right to counsel at post-indictment line-ups, does not apply to an inadvertent confrontation between a witness and an accused. See United States v. Seader, 440 F.2d 488 (5th Cir. 1971).

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 5

The defendant complains that the trial court erred in admitting the testimony of an assistant chief of police regarding statements made by the victim at the line-up. However, we find no reference to such statements in his testimony. In fact, he testified he was not present during her observance of the line-up.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 9

In this assignment defendant contends that, as sought to be inflicted here, the death penalty is cruel and unusual punishment. United States Constitution, Eighth and Fourteenth Amendments. We have consistently held that the death penalty for aggravated rape does not constitute cruel and unusual punishment even where no life was placed in jeopardy or no violent beating occurred. State v. Myers, 261 La. 100, 259 So.2d 27 (1972); State v. Selman, 300 So.2d 467 (La.1974).

This assignment of error lacks merit.

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

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

DIXON, J.,

dissents from the sentence, believing the death penalty in Louisiana is unconstitutional under decisions of the U. S. Supreme Court, but otherwise concurs.


author: DENNIS, Justice. DIXON, J., SANDERS, Chief Justice MARCUS, Justice SUMMERS, Justice

text:
    STATE of Louisiana v. William August MORA, Jr.
    No. 54884.
    Supreme Court of Louisiana.
    March 29, 1976.
    Rehearing Denied May 14, 1976.

      Guy J. D’Antonio, Reed, Reed & D’Antonio, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Bernard E. Boud-reaux, Jr., Walter J. Senette, Jr., Asst. Dist. Attys., for plaintiff-respondent.
   DENNIS, Justice.

William August Mora, Jr. was charged by bill of information with possession of marijuana in violation of La.R.S. 40:-966(C). He was found guilty as charged and subsequently sentenced to six months’ imprisonment. We granted defendant’s application for certiorari, 295 So.2d 808 (La. 1974), and reversed the conviction and sentence, finding merit in defendant’s contention that the trial judge committed error in denying his motion to suppress the marijuana. 307 So.2d 317 (La.1975). The Supreme Court of the United States grant- ■ ed the petition of the state for certiorari : and thereupon vacated our judgment and • remanded the case to this Court, issuing the following mandate:

ON CONSIDERATION WHEREOF, it was ordered and adjudged on October 6, 1975, by this Court that the judgment of the Supreme Court of Louisiana in this cause be vacated, and that this cause be remanded to the Supreme Court of the State of Louisiana to consider whether its judgment is based upon federal or state constitutional grounds, or both. See California v. Krivda, 409 U. S. 33 [93 S.Ct. 32, 34 L.Ed.2d 45] (1972).
NOW, THEREFORE, THE CAUSE IS REMANDED to you in order that such proceedings may be had in the said cause, in conformity with the judgment of this Court above stated, as accord with right and justice, and the Constitution and laws of the United States, the said writ notwithstanding.

Pursuant to the mandate set forth above, we have considered whether our opinion in this cause was based on federal or state constitutional grounds, or both, and certify as follows:

Our opinion reflects that we fol-. lowed three steps in concluding that the trial court erred in failing to suppress the marijuana seized from the defendant. First, we determined that the instructor and the school principal who effected the search and seizure were functioning as governmental agents. This decision was reached solely by an analysis of Louisiana law. La.R.S. 17:416. Next we decided that the warrantless search of defendant’s duffel bag was unreasonable and in violation of both federal and state constitutional prohibitions against unreasonable searches and seizures. Fourth Amendment of the United States Constitution; Article I, § 7 of the Louisiana Constitution of 1921. Consequently, we concluded that suppression of the seized marijuana was mandated under the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 2d 1081 (1961).

Thus, we acted on both federal and state constitutional grounds, as well as state statutory law, in reaching our decision in this case.

DIXON, J.,

concurs, but would note that the exclusionary rule, at the time of the search, was embodied in C.Cr.P. 703, and is now contained in Art. 1, § 5, La.Const. 1974.

SANDERS, C. J,., dissents with written reasons.

MARCUS, J., dissents and assigns reasons. s

SUMMERS, J., dissents for the reasons assigned.

SANDERS, Chief Justice

(dissenting).

On January 20, 1975, a divided Court reversed defendant’s conviction of possession of marijuana, holding that public school principals and instructors are bound by the search warrant requirements of the Fourth Amendment to the United States Constitution. La., 307 So.2d 317 (1975). The majority stated:

“ . . . Because of the function of these school officials and their strict accountability to the State, we must conclude that these school officials, insofar as they are discharging their duties by enforcing State policies and regulations, are within the purview of the Fourth Amendment’s prohibition; therefore, their students must be accorded their constitutional right to be free from war-rantless searches and seizures.”

The United States Supreme Court vacated the judgment and remanded the case to this, Court for us to consider whether the judgment is based upon federal or state grounds or both.

The majority has concluded that “we acted on both federal and state constitutional grounds, as well as state statutory law.” In so announcing, the majority has placed an unwarranted barrier in the path of appellate review by the United States Supreme Court.

The constitutional question is whether school teachers must secure warrants to search for weapons, narcotics, and other prohibited items in gym lockers, desks, or in a student’s possession in school buildings.

I had the definite opinion when the decision was handed down that the majority held that such a search did not fall within the “specifically established and well-delineated exceptions” to the warrant requirement of the Fourth Amendment. My opinion in this regard is fortified by the citation of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) as authority for the holding.

The only Louisiana case cited at any point in the decision is State v. Tant, La., 287 So.2d 458 (1973). That decision, however, dealt solely with the Fourth Amendment to the United States 'Constitution.

The analysis of our- state school statute, LSA-R.S. 17:416, was directed to the general status of teachers. The statute, itself, does not deal with search and seizure. Hence, the statutory analysis is collateral and cannot serve as an adequate state ground for resolution of the overriding constitutional issue.

Hence, I conclude that the Court acted under what was conceived to be the compulsion of the Fourth Amendment to the United States Constitution as interpreted by the Supreme Court of the United States. See Department of Mental Hygiene of California v. Kirchner, 380 U.S. 194, 85 S.Ct. 871, 13 L.Ed.2d 753 (1965). This conclusion, of course, makes the decision reviewable by the United States Supreme Court.

If there is any doubt about the interpretation of the decision, however, it should be resolved in favor of reviewability. Here, the majority has fastened upon the school officials of our state an onerous search warrant requirement at a time when violence and lawlessness in some of our schools are acute.

The great weight of authority is contrary to the decision. See State v. Baccino, Del.Super., 282 A.2d 869 (1971); In Re Donaldson, 269 Cal.App.2d 509, 75 Cal.Rptr. 220 (1969) ; Mercer v. State, 450 S.W. 2d 715 (Tex.Civ.App., 1970); People v. Overton, 20 N.Y.2d 360, 283 N.Y.S.2d 22, 229 N.E.2d 596 (1967); State v. Stein, 203 Kan. 638, 456 P.2d 1, cert. denied 397 U.S. 947, 90 S.Ct. 966, 25 L.Ed.2d 120 (1969); People v. Jackson, 65 Misc.2d 909, 319 N.Y.S.2d 731 (1971); In Re State in the Interest of G. C., 121 N.J.Super. 108, 296 A .2d 102 (1972); In Re C., 26 Cal.App.3d 320, 102 Cal.Rptr. 682 (1972).

The Louisiana Teachers’ Association, in my opinion, correctly maintains:

“ . . . [I]t is indeed unfortunate that Louisiana, by this Honorable Court’s decision, has not only aligned itself with a minority of states in this area, but has established far more stringent requirements for school officials in discharging their obligations to protect the interest of all of the students than any other State.”

For the reasons assigned, I respectfully dissent.

MARCUS, Justice

(dissenting).

Although the previous opinion of this court contains a reference to art. 1, § 7 of the 1921 Constitution of the State of Louisiana, the language of which is similar to the fourth amendment to the United States Constitution, I am unable to conclude, after analyzing the opinion in its entirety, that the judgment rested on an adequate, independent, nonfederal ground. In holding that the search of defendant’s wallet by the school official was unlawful, this court relied, in my view, on the decisions of the United States Supreme Court interpreting the fourth amendment to the United States Constitution. These decisions declare that a search conducted without a warrant is per se unconstitutional unless it falls within one of the “specifically established and well-delineated exceptions” to the warrant requirement of the fourth amendment. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, (1971) (cited and quoted in our previous opinion). This court found that the warrantless search in this case did not come within one of these exceptions, and stated:

We hold that a search on school grounds of a student’s personal effects by a school official who suspects the presence or possession of some unlawful substance is not a ‘specifically established and well-delineated’ exception to the warrant requirement and that the fruits of such a search may not be used by the State prosecutorial agency as the basis for criminal proceedings.

Therefore, in my opinion, this court acted either solely on federal, constitutional grounds; or, in construing our state constitution, acted under what this'court conceived to be the compulsion of the fourth amendment to the United States Constitution, as interpreted by its ultimate arbiter, the Supreme Court of the United States. Department of Mental Hygiene of California v. Kirchner, 380 U.S. 194, 85 S.Ct. 871, 13 L.Ed.2d 753 (1965). Accordingly, I respectfully dissent.

SUMMERS, Justice

(dissenting).

In my view this Court’s opinion (307 So.2d 317) is based upon the all-pervading influence of decisions of the United States Supreme Court interpreting the Fourth Amendment of the United States Constitution, as made Obligatory on the States by the Fourteenth Amendment. These citations relied upon in the majority opinion made this fact evident: Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 t.Ed.2d 564 (1971); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 108 (1961); Burdeau v. McDowell, 256 U.S. 465, 41 S. Ct. 574, 65 L.Ed. 1048 (1921).

The sole Louisiana case referred to in the majority opinion, State v. Tant, 287 So.2d 458 (La.1974), is one based almost entirely upon the authority of decisions of the United States Supreme Court. Thi_s can hardly be considered sufficient to classify this decision as one based upon a state constitutional ground.

Until Mapp v. Ohio, Louisiana’s Constitution had never been interpreted to require the exclusion of evidence obtained as a result of a violation of the search and seizure standards of Article I, Section 7, of that constitution. State v. Martines, 220 La. 899, 57 So.2d 888 (1952), cert. denied, 344 U.S. 843, 73 S.Ct. 58, 97 L.Ed. 656 (1952); State v. Long, 161 La. 250, 108 So. 471 (1926), error dismissed, 273 U.S. 653, 47 S.Ct. 334, 71 L.Ed. 823 (1927); State v. Eddins, 161 La. 240, 108 So. 468 (1926); State v. Fleckinger, 152 La. 337, 93 So. 115 (1922). So far as I can ascertain, all of our decisions invoking the exclusionary rule have been based upon the compulsion of Mapp v. Ohio.

The determination that the school instructor and school principal were functioning as state agents was a necessary element of any decision applying standards established by decisions of the United States Supreme Court which require that state officials or agents be involved before the Fourth Amendment’s proscriptions can be made obligatory upon the states by the Fourteenth Amendment. The opinion resolution of this fact, therefore, does not, standing alone, demonstrate that the decision is grounded to any extent upon the state constitution. To the contrary, this approach to the problem more properly indicates the majority’s effort to establish state participation in order that the federal constitutional standards could be made applicable.

On the facts of this case no decision was intellectually feasible in total disregard of the principles of the Fourth, Fifth and Fourteenth Amendments and the decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). This Court could not find that the Fourth Amendment was not violated but that Article I, Section 7, of the Louisiana Constitution was violated and then invoke an exclusionary rule without overruling the long line of Louisiana decisions holding that the evidence obtained as a result of a violation of Article I, Section 7, was nevertheless admissible. By invoking the exclusionary rule of Mapp v. Ohio the majority necessarily grounded its decision upon a violation of the Fourth Amendment, for there was no state constitutional or decisional authority which standing alone would support the exclusion of the evidence.

Aside from State v. Baccino, 282 A.2d 869 (Del.Super.1971), the defense brief relied entirely upon decisions of the United States Supreme Court interpreting the Fourth, Fifth and Fourteenth Amendments, implying that the same interpretation should be placed upon- like state constitutional provisions because of their similarity. See Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). It is pertinent to observe also that State v. Baccino, supra, was decided by the Superior Court of Delaware upon the authority of the Fourth Amendment as interpreted by the United States Supreme Court and other courts applying those interpretations.

While purporting to decide this case upon standards established by the United States Supreme Court, the majority has misunderstood and misapplied those standards. The decision fails to recognize the all-important doctrine that school environment presents “special characteristics” which must determine the light in which constitutional principles are applied. Tinker v. Des Moines Independent Community School District, supra.

By declaring now that the decision is based in part upon state grounds, the majority seeks to shield this decision from the review to which it should rightfully be subjected by the Highest Court. Founded, as the decision purports to be, upon pronouncements of the United States Supreme Court interpreting federal constitutional principles obligatory on the states, its impact will be far-reaching, not only upon the schools of Louisiana, but upon all the schools of America, if review is denied by our Nation’s Highest Court.

It should be noted, moreover, that the author of the original opinion in this matter no longer sits on the Court, and the- author of this remand opinion did not participate in the application for writs, the hearing, the rendition of the opinion, the application for rehearing or the decision denying a rehearing in this case. When the views of the author of this remand opinion are not considered, this Court is evenly divided on the case.

I am of the opinion that the original majority opinion was based upon federal constitutional grounds.

I respectfully dissent.

      . The author of this dissent also dissented from the previous judgment of this court. 307 So.2d 317 (La.1975).

      . The 1921 constitution was in effect at the time of the trial of this case.

      . La.Const. art. I, § 7 (1921) provides:
      “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no such search or seizure shall be made except upon warrant therefor issued upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”


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

text:
    STATE of Louisiana v. Tye Phillips MIMS.
    No. 57073.
    Supreme Court of Louisiana.
    March 29, 1976.

      Lloyd F. Love, Ferriday, E. H. Fitzpatrick, Jr., Natchez, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen.; W. C. Falkenheiner, Dist. Atty., John Sturgeon, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Tye Phillips Mims was charged by bill of information with possession of a controlled dangerous substance, to-wit: marijuana, in violation of La.R.S. 40:966C and D(l). After trial by judge on Febru- • ary 26, 1975, he was found guilty as charged and sentenced to pay a fine of five hundred dollars plus costs and to be imprisoned in the parish jail for ten days. An appeal was taken to this court. A case is apealable to this court if the defendant has been convicted of a felony or a fine exceeding five hundred dollars or imprisonment exceeding six months actually has been imposed. Defendant was not convicted of a felony, nor did the fine or term of imprisonment actually imposed exceed five hundred dollars or imprisonment for six months. Hence, the case is not ap-pealable to this court. However, we will consider the appeal as an application for a writ of review under our supervisory jurisdiction. Relator asserts four assignments of error for the granting of this writ and reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant filed a motion to suppress the evidence seized from his car on the ground that it was recovered as a result of an illegal search and seizure. After a hearing, the motion was denied. Defendant contends that the trial court erred in this ruling.

A bulletin was broadcast over the police radio regarding a complaint that occupants of a particularly described vehicle had purchased cigarette papers from a local store in Ferriday, and one of the occupants had “a strong smell of marijuana” on his person. This bulletin was logged at 5:00 p. m. on August 3, 1974. Shortly thereafter, Trooper James W. Farris of the Louisiana State Police observed a vehicle meeting this description traveling “pretty fast.” He followed the vehicle to where it stopped at the Spokane grocery. The occupants alighted from the car and started walking toward the store. Officer Farris got out of his vehicle and, as he walked past their vehicle in the direction of the store, he observed what appeared to be numerous marijuana seeds on the seats and floorboard of their vehicle. Upon inquiry, relator, Tye Mims, admitted his ownership of the vehicle and identified himself by exhibiting his driver’s license to the police officer. Trooper Farris then radioed Trooper Blunschi, who was in the vicinity, for assistance. Trooper Blunschi arrived at the scene in about five to ten minutes. Relator was presented with a “permission to search” form which he read, acknowledged that he understood, and thereafter signed. This form was executed at 5:25 p. m. A thorough search of the vehicle was then conducted by the police officers who recovered marijuana seeds and gleanings from the front and back seats, under the seats, the floorboard, and the glove compartment of this car. They likewise found a “roach” holder, cigarette papers and a cardboard tube from a coat hanger, that latter of which smelled of marijuana and was burned on one end. Relator was then placed under arrest and advised of his Miranda rights.

Relator admitted stopping at the store in Ferriday but denied purchasing any cigarette papers. He admitted signing the “permission to search” form, stating that he had nothing to hide in his car. However, he explained that he consented to the search and signed the permission form because of representations by the police officers that a search warrant could be obtained if he refused to do so. The' testimony of several of the occupants of the vehicle generally corroborated relator’s testimony except that they admitted that an inquiry had been made at the store in Ferri-day about the purchase of cigarette papers but they denied purchasing any as there was none available.

After hearing the evidence, the trial judge concluded that relator’s consent had been validly obtained.

In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the United States Supreme Court stated:

In Terry this Court recognized that ‘a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.’ [citation omitted] The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his -shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. [citation omitted] A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time, [citations omitted]

See also Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Rogers, 324 So.2d 403 (La.1975); State v. Jefferson, 284 So.2d 882 (La.1973); La. Code Crim.P. art. 215.1(A).

Applying the standards set forth in Adams and Terry, we conclude that Trooper Farris clearly had reasonable cause to ap- . proach and briefly detain relator for investigatory purposes. Trooper Farris had just received a police bulletin describing the vehicle in question as being occupied by persons suspected of possessing marijuana and had personally observed marijuana seeds on the seats and floorboard of said vehicle.

A consent search is one of the specifically established exceptions to the warrant requirement of the fourth amendment. Schneckloth v. Bustamonte, 412 U. S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Hence, a valid search or seizure may be made without a warrant where the accused consents to such a search or seizure. State v. Rogers, supra; State v. Sears, 298 So.2d 814 (La.1974); State v. Comeaux, 252 La. 481, 211 So.2d 620 (1968). Voluntariness of consent is a question of fact to be determined from all the circumstances. Schneckloth v. Busta-monte, supra; State v. Rogers, supra.

After reviewing the evidence adduced at the hearing on the motion to suppress, we find no abuse of discretion in the trial judge’s conclusion that relator’s consent to search the vehicle was freely and voluntarily given. Therefore, the trial judge correctly denied defendant’s motion to suppress the evidence seized from his car. Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant’s motion to suppress his written statement was denied by the trial judge. In brief, defendant asserts that the arresting officers.failed to give him his Miranda warnings prior to questioning and therefore any information obtained cannot be used at trial.-

There is no merit to this contention. As indicated in the facts under the previous assignment of error, immediately after the seizure of the marijuana seeds and gleanings and drug paraphernalia from relator’s car, relator was placed under arrest and orally advised of his Miranda rights by Trooper Farris, who testified that Mims affirmatively acknowledged his understanding of his rights and agreed to cooperate with them. Mims was then taken to the Concordia Parish sheriff’s office in Vidalia where he was again advised of his rights and signed a “waiver of rights” form. This form was executed at 6:55 p. m. Relator then made a statement which was written and signed by him. In the printed portion above the written statement, there is an acknowledgment of his rights and waiver of same. Mims admitted that Officer Farris read the printed portion to him prior to his writing the statement. The statement was started at 6:57 p. m. and completed at 7:12 p. m. While relator denied receiving his rights at the Spokane grocery, he admitted that his rights were read to him and that he signed the waiver of rights form at the courthouse. However, he denies understanding them. At the time of trial (some six months after the date of the alleged crime), relator was seventeen years old and senior in high school. Under the facts of this case, we find that relator was fully advised of his Miranda rights and that he knowingly and intelligently waived same.

Furthermore, we do not find under the facts of this case that relator was under custodial interrogation until after the marijuana seeds and gleanings and drug paraphernalia were seized from his car and he was placed under arrest. At this point, Miranda warnings must and did follow. Prior to this time, questioning by police amounted to only “general on-the-scene questioning as to facts surrounding the crime” during which no Miranda warnings are required. Miranda v. Arizona, 384 U. S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Roach, 322 So.2d 222 (La.1975).

Hence, the trial judge properly denied defendant’s motion to suppress his written statement. Assignment of Error No. 2 is without substance.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that the trial judge erred in denying his motion for a new trial on the ground that there was “no evidence elicited to prove the essential elements of the offense for which defendant was tried.”

Article 858 of the Louisiana Code of Criminal Procedure provides:

Neither the appellate nor supervisory jurisdiction of the supreme court may be invoked to review the granting or the refusal to grant a new trial, except for error of law.

Where a motion for a new trial is grounded on the assertion that there was no evidence at all on which the verdict of conviction can be supported, a question of law is presented for our review. However, it is well settled that where there is some evidence to sustain the conviction, no matter how little, this court cannot pass on the sufficiency thereof. That comes within the exclusive province of the trial judge or jury. It is only where there is no evidence at all of some essential element of the crime charged that we have the right to annul the conviction. City of Monroe v. Barfield, 246 La. 315, 164 So.2d 340 (1964); State v. Vines, 245 La. 977, 162 So.2d 332 (1964); State v. Bueche, 243 La. 160, 142 So.2d 381 (1962); State v. Copling, 242 La. 199, 135 So.2d 271 (1961); State v. Dunnington, 157 La. 369, 102 So. 478 (1924).

La.R.S. 40:966C provides in pertinent part:

It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance classified in Schedule 1 .

The jurisprudence has firmly established that a person may be in “constructive” possession of a controlled dangerous substance if, though not in physical custody, it is subject to his dominion and control. State v. Knight, 298 So.2d 726 (La.1974); State v. Porter, 296 So.2d 302 (La.1974); State v. Smith, 257 La. 1109, 245 So.2d 327 (1971). The jurisprudence has also established that guilty knowledge is an essential ingredient of the crime of possession of a controlled dangerous substance. State v. Knight, supra, and cases cited therein. Although intent is a question of fact, it need not be proven as a fact; it may be inferred from the circumstances of the transaction. La.R.S. 15:-445; State v. Vines, supra.

In the instant case, marijuana seeds and gleanings were recovered from the front and back seats, under the seats, on the floorboard and in the glove compartment. Likewise, a “roach” holder and cigarette papers were found in the car. A cardboard tube, which smelled of marijuana and burned on one end, was also found behind the sunvisor. While the vehicle in question was owned by relator’s father and sometimes used by other members of his family, it was regularly used by relator to go to school. Relator had been driving the vehicle, together with several of his friends, for a couple of hours prior to the search and seizure. There was evidence that one of the boys in the vehicle had entered the grocery in Ferriday about 4:00 or 5:00 p. m. (shortly before the search and seizure) and caused a disturbance by pushing people around in the store. He also had a “strong smell of marijuana” about his person. There was expert testimony to the effect that the tested substance recovered from the vehicle was marijuana. Finally, relator made a written confession to the police. While the statement is subject to various interpretations, the trier of fact could construe it as being partially in-culpatory.

Under the foregoing circumstances, we conclude that the record contains some evidence that Mims knowingly or intentionally possessed the marijuana in question. The numerous seeds and gleanings and drug paraphernalia, although not found on his person, were discovered in areas under his direct control and dominion. This amounts to some evidence of constructive possession. Likewise, the circumstances of this case present some evidence from which guilty knowledge may be inferred. Hence, the conviction will not be disturbed. Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant urges that the trial judge erred in permitting in evidence a bottle of marijuana seeds and gleanings recovered during the search. He alleges that the prosecution did not prove.an unbroken chain of custody from the time the substance was seized until it was admitted in evidence. As proof of the state’s improper storing procedure, he points to Trooper Farris’ admission that he kept the evidence for sixteen days at his residence before transporting it to the crime lab in Baton Rouge.

This argument has no substance. In State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), we stated:

To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it is offered in evidence.
The law does not require that the evidence as to custody eliminate all possibility that the object has been altered. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient, [citations omitted]
The lack of positive identification goes to the weight of the evidence, rather than to its admissibility. Ultimately, connexity of physical evidence is a factual matter for determination by the jury, [citations omitted]

See also State v. Roach, 322 So.2d 222 (La.1975); State v. Freeman, 306 So.2d 703 (La.1975); State v. Flood, 301 So.2d 637 (La.1974); State v. Isaac, 261 La. 487, 260 So.2d 302 (1972).

In the instant case, Troopers Farris and Blunschi conducted the search wherein the marijuana seeds and gleanings and drug paraphernalia were recovered from relator’s car. Some of the seeds and gleanings were placed into an envelope and others into an empty medicine bottle. Trooper Farris then made a list of the items seized. He kept them in a locked filing cabinet at his home from the date of seizure (August 3) until he personally delivered them to the crime lab in Baton Rouge (August 19). The items were tested and kept in the evidence locker there until brought to court on the day of trial by a criminalist from the crime lab. The bottle containing the marijuana was received in evidence.

The chain of custody was • amply established by this testimony. Clearly, it was more probable than not that the marijuana introduced in evidence was related to the case. The trial judge properly permitted its admission in evidence. There is no merit in this assignment of error.

DECREE

For the reasons assigned, the appeal is dismissed, and the application for a writ under our supervisory jurisdiction is denied.

DIXON, J., dissents with reasons.

CALOGERO, J., dissents with reasons.

DIXON, Justice

(dissenting).

I respectfully dissent.

In the absence of reasonable grounds (probable cause) to believe a person is committing or has committed or is about to commit a crime, there is no Louisiana statute or United States Supreme Court jurisprudence which permits the detention of a person by the police.

Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L.Ed.2d 612 (1972), interpreted Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), as permitting a limited protective search for concealed weapons by a policeman “making a reasonable investigatory stop.” The Adams case and Terry v. Ohio cannot be used to support the proposition that suspicion — even reasonable suspicion — will justify a stop and search to discover evidence of crime:

“The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law. So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose. .” Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612.

My understanding of the evidence in the case before us is that the police detained the defendant on nothing more than suspicion. The facts of both Terry and Adams can be interpreted to involve probable cause. The search in Terry and Adams was for weapons only. Here the search was for suspected marijuana.

If my interpretation of the evidence is correct, the search was not a plain-view search, nor one for which there was a valid consent, nor one permitted by the United States and Louisiana Constitutions.

CALOGERO, Justice

(dissenting).

I dissent for the reasons assigned by Justice DIXON and for the following reasons.

I find merit in relator’s assignment of error number three. Mims was charged with possession of marijuana. Although none of the illegal substance was found on Mims or on any of the occupants of his car, the two policemen were able to find, during a thorough, forty-five minute search of Mim’s car, an extremely small amount of material which a state expert was able to identify as marijuana. According to Officer Blunschi, the seized material was found at various places in the car. The seeds and gleanings, and some ashes, were placed in a small medicine bottle. A burnt cardboard coat hanger tube was also found behind one of the two sun visors. Although Officer Blunschi testified that he felt the coat hanger tube smelled of marijuana, and the tube was apparently admitted into evidence, no expert testimony was introduced to indicate that the tube contained any marijuana. Although he said that a “roach clip” was found in the car at an undisclosed location, and it was introduced into evidence, there was no testimony that any particles or gleanings of marijuana were attached to it. The seeds which were seized were not analyzed by the state’s expert, and were not admitted into evidence. The only material tested by the expert was “gleanings of vegetable material” which were placed in a small medicine bottle by the officers along with ashes and seeds which were never analyzed. There is no indication in the officers’ testimony whether all of the vegetable gleanings were found in one location in the car, or whether the amount seized was found in several locations. There is also no indication in the record whether the gleanings of marijuana were discovered in a location hidden from view, such as under a seat, or whether they were found in a more visible location. Although there was no testimony as to how much the marijuana weighed, the expert described the total amount of marijuana as “gleanings” which he defined as “a very small amount.”

But there is clear testimony that no marijuana at all, nor any smoking paraphernalia, was found on the person of the defendant or on any occupant of the car.

The state concedes that the case against Mims is one of constructive possession, more precisely, constructive possession of “gleanings” of marijuana. As we stated in State v. Smith, 257 La. 1109, 245 So.2d 327, 329 (1971), “A person may be in constructive possession of a drug even though it is not in his physical custody, if it is subject to his dominion and control.” In addition to having the requisite dominion and control over the substance, the state must prove that the defendant intended to possess the illegal drug.

The law in this area was first set out by this Court in 1955 in the case of State v. Johnson, 228 La. 317, 82 So.2d 24 (1955) in which we explained:

“The word ‘possession’ means simply the owning or having in one’s power; to have and to hold as property; ownership, whether rightfully or wrongfully; actual personal control and care; the right of exercising acts of dominion, [citation omitted]
“Unlawful possession, where one is invested with some right of dominion, can be defined as a possession which in the ordinary course of human experience necessarily involves knowledge of the fact that one is possessing either rightfully or unlawfully as well as knowledge of the criminal consequences which one should reasonably anticipate to result therefrom. For, no crime can exist without the combination of a criminal act and a criminal intent, or an evil motive, or with a guilty knowledge of its consequences. State v. Howard, 162 La. 719, 111 So. 72.
“Therefore, guilty knowledge is an essential ingredient of the crime of possession of narcotic drugs. The crime of unlawful possession of narcotic drugs as denounced by law cannot exist without proof of guilty knowledge; for, such possession would not be a possession contemplated by the statute.”

The later jurisprudence has firmly established this principle. State v. Alford, 323 So.2d 788 (La.1975); State v. Knight, 298 So.2d 726 (La.1975); State v. Porter, 296 So.2d 302 (La.1974); State v. Williams, 260 La. 1167, 258 So.2d 539 (1972); State v. Kreller, 255 La. 982, 233 So.2d 906 (1970). This element of guilty knowledge has been judicially defined as “the knowing and intentional possession of a drug subjecting the possessor to criminal liability.” State v. Smith, 257 La. 896, 244 So.2d 824 (1971). Thus to sustain a conviction for constructive possession of marijuana the state must introduce some evidence that defendant exercised dominion and control over the illegal drug, and that the accused both knew the substance he possessed was an illegal drug and intended to possess it. See State v. Smith, supra.

I do not feel that the state has produced any proof at all that this defendant knowingly and intentionally possessed the marijuana gleanings found in his car. What evidence the state presented, exclusive of the substance possessed, was of a peripheral and non-conclusive nature, bearing not at all upon the central issue m this case. On that central and significant issue, the substance possessed, I do not believe that the state has produced evidence of defendant’s knowing and intentional, although constructive, possession of marijuana, by its showing that scattered about Mims’ car were gleanings, minute bits of vegetable matter, which, even after forty-five minutes of painstaking gathering, were so miniscule and lacking in substance that they could not be employed to make even one miniature marijuana cigarette. I believe that in a constructive possession case the requisite guilty knowledge is simply not shown where the only evidence of intent is the substance itself and where the substance over which defendant purportedly intentionally and knowingly exercised dominion and control consists merely of gleanings in the minimal quantities which were found in this case.

For these reasons, I respectfully dissent.

      . La.Const. art. V, § 5(D) (1974) provides:

        Appellate Jurisdiction. In addition to other appeals provided by this constitution, a case shall be appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional; (2) the defendant has been convicted of a felony or fine exceeding five hundred dollars or imprisonment exceeding six months actually has been imposed.

      . Penalty for violation of La.R.S. 40:9660 and D(l) (possession of marijuana — first conviction) is a fine of not more than five hundred dollars and/or imprisonment in the parish jail for not more than six months. A felony is defined as an offense that may be punished by death or by imprisonment at hard labor. La.Code Crim.jP. art. 933(3). A misdemeanor is defined as any offense other than a felony, and includes the violation of an ordinance providing a penal sanction. Id. art. 933(4).

      .La.Const, art. V, § 5(,A) (1974).

      . Marijuana is classified as a controlled dangerous substance in Schedule I. La.R.S. 40:964.

      . .

      . Gleanings are defined as “things acquired by gleaning”; to glean means “to pick up or gather together the scattered remainder of grain or other produce dropped or left lying by reapers or other regular gatherers”; “to gradually scrape together . . . material found here and there”; “to pick up or scrape together material in piecemeal fashion”; “to acquire bit by bit from some source.” Webster’s Third New International Dictionary (1971).

      . The evidence which I refer to above as peripheral and non-conelusive included the following: one of the occupants of Mims’ car on whom no marijuana was found had been seen acting in an erratic manner and was said to “smell like he had marijuana on him” when earlier he had sought, unsuccessfully, to purchase cigarette papers; a roach clip was found in the car; a coat hanger tube, not shown to bear marijuana but nonetheless said to “smell” of marijuana, was found behind a sun visor. The state, of course, also produced a “confession” which because of its content is not seriously urged by the state as in fact being that.


text:
    Horace P. LEDET, Jr., Individually and for and on behalf of his minor child, Cheryl Ann Ledet v. FIREMEN’S INSURANCE COMPANY OF NEWARK, NEW JERSEY.
    No. 57860.
    Supreme Court of Louisiana.
    April 30, 1976.
   In re: Horace P. Ledet, Jr., etc., et al applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 327 So.2d 645.

Writ denied. No error of law.

CALOGERO, J., is of the opinion this writ should be granted.