author: MARCUS, Justice.

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, et al. RYDER TRUCK RENTAL, INC. v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS. Walter L. MULL v. Robert L. DAVIS et al. STANDARD BRANDS, INC. v. DEPARTMENT OF HIGHWAYS, State of Louisiana, et al.
    Nos. 57993, 58001, 58020, 58022 and 58021.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearings Denied Dec. 10, 1976.

      Philip K. Jones, Marshall W. Wroten, Robert J. Jones, Doran & Kivett, William J. Doran, Jr., Sp. Asst, to Gen. Counsel, La. Dept, of Highways, Baton Rouge, for defendant-respondent in 57993, 58001, 58020, 58022 and 58021.
    Judith Atkinson Chevalier, Dale, Owen, Richardson, Taylor & Mathews, Baton Rouge, for U. S. F & G., plaintiff-applicant in 57993 and for defendants-respondents in 58021, 58020, 58001 and 58022.
    David S. Bell, Durrett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, for in-tervenor-applicant in 58020 & plaintiff-applicant in 58021, for intervenor-respondent in 58022 and 57993 and for defendant-respondent in 58001.
    John B. Noland, Breazeale, Sachse & Wilson, Baton Rouge, for Robert E. Wilson, respondent in 58020, 58021, 58022, 57993 and 58001.
    Robert J. Vandaworker, Taylor, Porter, Brooks & Phillips, Baton Rouge, for plaintiff-applicant in 58001 and for defendant-respondent in 58020, 58021, 57993 and 58022.
    Bernard Kramer, Law Offices of Bernard Kramer, Alexandria, for plaintiff-applicant in 58022 and for defendant-respondent in 58001, 58020, 58021 and 57993.
   MARCUS, Justice.

This case involves four tort suits arising out of a single highway accident in which two trucks traveling in succession were struck by a highway headache bar spanning the roadway at a height lower than the posted maximum clearance. The owner-lessor and lessee of the trucks seek damages for cost of repair, loss of use and rental of substitute vehicles; the insurer of the cargo of one of the vehicles seeks compensation for amounts paid to the cargo owner. One of the drivers seeks damages for personal injuries sustained in the accident, and his employer’s workmen’s compensation insurer intervenes for benefits paid to the injured driver.

The suits were consolidated for trial below, whereupon the trial judge rendered judgment in favor of all defendants stating in his written reasons that he found no demonstration of negligence. With regard to the alleged liability of the Louisiana Department of Highways, the trial judge concluded that the condition of the headache bar was not patently or obviously dangerous and that the Highway Department had no notice, actual or constructive, of a defect in the structure. Accordingly, he found no negligence on the part of the department, citing Laborde v. Louisiana Department of Highways, 300 So.2d 579 (La.App.3d Cir.1974).

Judgments of the trial court were affirmed on appeal to the First Circuit in separate judgments. The appeals court noted its disagreement with the lower court’s finding of “no actual or constructive notice” but declined to find manifest error in the holding that the condition complained of was not patently or obviously dangerous to a reasonably careful and prudent driver. We granted certiorari to review this decision. 333 So.2d 238, 239 (La.1976).

FACTS

At about 8:30 a. m. on November 2, 1972, Robert L. Davis, an employee of R. L. Smith Manufacturing Company, was driving a 1971 Ford truck and trailer (leased to R. L. Smith by Ryder Truck Rental) within the speed limit in an easterly direction on U.S. Highway 190. The truck was carrying a cargo of mobile home doors and windows manufactured by R. L. Smith and insured by United States Fidelity & Guaranty Company. Before the Smith truck could cross the old Atchafalaya River Bridge at Krotz Springs, it was necessary to first pass under a highway height marker pole, commonly referred to as a headache bar. This structure consisted of a steel I-beam spanning the width of the roadway and mounted atop two upright steel H-beams encased in concrete on either side of the highway. The headache bar was erected at a height of fourteen feet, six inches, the same height as the bridge itself, so that vehicles exceeding the' maximum bridge height clearance would strike the headache bar rather than strike and damage the bridge. The height of the truck driven by Davis was well below the posted clearance height; it was marked as being thirteen feet, six inches high from the surface of the roadway and measurements taken by a state trooper after the November 2 accident confirmed that the truck did not exceed thirteen feet, eight and one-half inches. Davis testified that he had driven the Highway 190 route and passed under the headache bar with the same rig on numerous occasions without encountering any difficulty. The last occasion was about a week before the accident. On November 2, 1972, Davis noticed nothing unusual about the headache bar as he traveled toward it. When his truck and trailer had partially cleared the crossbar, however, he heard a loud noise and saw through the rear view mirror that the headache bar was ripping through the roof and sides of the trailer, causing extensive damage to the vehicle and cargo.

Immediately behind the Smith truck driven by Davis was another tractor-trailer unit driven by Walter L. Mull for Standard Brands, Inc. Mull testified that he was traveling at about 30 miles per hour and had been following the truck ahead at a distance of about one hundred and fifty to two hundred feet when, without warning, he heard a loud noise and saw part of the Smith trailer “turn up into the road.” Fearing that he might hit the yehicle ahead, Mull pulled the emergency brake valve and dove for the floor of the truck’s cab to protect himself. Davis, who had proceeded ahead a short distance to get out of the way of the following truck, noted that the headache bar had been bent eastward and observed through his rear view mirror that the crossbar just cleared the hood of the Standard Brands vehicle before it crashed through the windshield and driver compartment, sheering off the top of the cab. As a result of the accident, Mull received personal injuries including contusions and lacerations about his face and upper torso. These injuries prevented him from working for several weeks, during which time he was compensated under a policy for workmen’s compensation furnished by Commercial Union Assurance. The truck, trailer, and refrigeration unit driven by Mull, for which Standard Brands was responsible as lessee, was severely damaged in the accident.

In an effort to establish that the headache bar had been hit and damaged by a third party prior to the November 2, 1972 accident, testimony was adduced concerning an incident which occurred on October 28, 1972. On that date, Robert E. Wilson, a driver for Eagle Trucking Company, was traveling east on Highway 190 in a vehicle measured at fourteen feet, four inches high, for which a permit had been issued. As he passed through the headache bar at the west approach to the Atchafalaya Bridge, he was stopped from behind by a following automobile, the occupants of which claimed that a small piece of angle iron had fallen from atop the truck causing damage to the car’s windshield. Without difficulty, Wilson backed down under the crossbar to discuss the problem. Sgt. R. L. Montgomery III and Krotz Springs Chief of Police, Fred J. Soileau, investigated the accident and testified that, while it was unclear if or why the piece of metal had fallen from the Eagle truck, it was certain that no damage whatsoever had been suffered by the headache bar as a result of this incident. Upon completion of the investigation, Wilson was escorted by Sgt. Montgomery through the headache bar and safely across the bridge. The Eagle truck experienced no difficulty in clearing either structure.

The Louisiana Department of Highways apparently received information concerning the October 28, 1972 incident to the effect that there had (been damage to the headache bar. During his testimony, James H. Drake, Chief Maintenance and Operations Engineer for the Department of Highways, identified a letter written by himself and dated November 1, 1972 — the day before the accident. While Drake could not recall the source of the information which prompted the letter and while he insisted that he did not consider the matter urgent, the communication nevertheless indicated an awareness of a defect in the headache bar structure inasmuch as it noted that the department would “plan on removing and replacing this clearance bar at the earliest possible date. . . No effort was made, however, to determine whether or not the height of the crossbar had been affected nor was any attempt made to warn oncoming truck traffic of a possible obstruction. Had an on-the-spot investigation of the condition of the crossbar been conducted in conjunction with the November 1, 1972 letter, the reduced vertical clearance of the headache bar would probably have been discovered. Trooper J. C. Bertrand, Jr., one of the officers who investigated the accident, testified that one or two days before the accident he passed under the bar and noticed that it was leaning eastward.

On the morning of the accident, Henry Delrie, State Bridge Maintenance Supervisor for the Highway Department, passed under the west Atchafalaya Bridge headache bar at approximately 5:30 a. m. He noted that one of the upright support beams for the crossbar had been knocked out of plumb and was leaning about four to six inches toward the bridge in an easterly direction. He further observed that the crossbar itself was somewhat lower than it was supposed to be. Although Mr. Delrie testified that he did not consider the condition of the crossbar to constitute an immediate traffic hazard, he admitted that he reported the situation in an effort to avoid an accident. He radioed the information to the Highway Department’s Lafayette District Office where the call was received by a night watchman, whose duty it was to relay such reports to Gerald L. Trahan, an engineering specialist in charge of bridge maintenance and inspection. According to the testimony of Mr. Trahan, the message he received was simply that there was a problem in the Krotz Springs area. It is unclear whether or not Mr. Delrie gave his name to the night watchman. At any rate, he was not contacted to give further details concerning the difficulty. Trahan called the Louisiana State Police to check on possible problems and was informed that there was no trouble in the Krotz Springs area. Based on this information, Trahan concluded that the call to the watchman must have been a prank. No one from the Highway Department was dispatched to investigate the Delrie report.

Between 7:00 and 7:30 a. m., an equipment specialist for the Highway Department, Charles R. Graves, passed under the headache bar and noted that it was leaning eastward. About one mile beyond the bridge, he met with another equipment specialist, Roy Gilbert, concerning an unrelated matter and mentioned the defective condition of the headache bar. Gilbert then drove slowly past the headache bar in both directions in order to investigate the situation. He verified that the south end of the structure appeared bent and was leaning toward the east about four to six inches. As soon as he cleared the highway traffic, Gilbert radioed Mr. Trahan reporting the situation and stating his opinion that the situation should be attended to. Again, no attempt was made to determine whether or not or to what extent the height of the crossbar had been altered. No efforts were made to dispatch a crew to set up warnings as to the defective structure. Nor did anyone call for assistance from the state police, although they apparently could have reached the scene in fifteen minutes or less and were available to aid the Highway Department with traffic security problems. Although Mr. Trahan proceeded to assemble a crew to repair the defective condition, unfortunately, the crew did not arrive until after the accident had occurred.

LIABILITY

La. Civil Code art. 2315 provides in relevant part:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

It is elementary that, within the contemplation of article 2315, fault is the breach of a duty owed by one party to another under the particular facts and circumstances of a given case. The issues presented in the instant case for our consideration are: (1) whether any of the parties to this litigation were legally at fault in causing the November 2, 1972 accident; and (2) if so, what is the proper quantum of damages to be awarded.

After a careful examination of the record, we are in agreement with the finding of both trial and appeal courts as to the liability of all parties except the Louisiana Department of Highways.

There is no evidence in the record to indicate that the incident involving the Eagle truck driven by Robert E. Wilson contributed in any way to the November 2, 1972 accident. The testimony of the investigating officers clearly indicates that, whether or not anything on the truck made contact with the headache bar, there was no damage to the upright supports or the crossbar itself. Nor, under the facts established in the record, can we find any negligence attributable to R. L. Smith or Ryder Truck Rental. Had the headache bar been maintained at the posted height of fourteen feet, six inches, the truck owned by Ryder and leased to Smith (whether measuring thirteen feet, six inches or thirteen feet, eight and one-half inches) would have easily cleared the crossbar. Davis, who had driven the same rig through the headache bar on previous occasions, had no reason to suspect that the headache bar was lower than its usual and posted height or that he would otherwise have any difficulty in passing underneath it. Approaching as he did from the west, with the headache bar leaning away from him, he did not perceive that the structure had been damaged. The general rule has been recognized in our jurisprudence that a motorist using a public highway has a right to presume, and to act upon the presumption, that the highway is safe for usual and ordinary traffic, either in daytime or at night, and that he is not required to anticipate extraordinary danger, impediments, or obstructions, to which his attention has not been directed and of which he has not been warned. Jacobs v. Jacobs, 141 La. 272, 74 So. 992 (1917); Referee v. Crowe, 272 So.2d 399 (La.App.2d Cir. 1973), writ refused 274 So.2d 709 (La.1973); Falgout v. Falgout, 251 So.2d 424 (La.App.1st Cir. 1971); Kilpatrick v. State, 154 So.2d 439 (La.App.2d Cir. 1963); Reeves v. State, 80 So.2d 206 (La.App.2d Cir. 1955). Accordingly, we find no negligence on the part of Davis. Moreover, once Walter Mull realized what was happening to the truck just ahead of him, we are satisfied that he did everything possible and prudent to avoid the accident. By pulling the emergency brake valve and diving for the floor of the cab, he averted what otherwise might have been a fatality.

We cannot agree, however, with the finding of the trial and appeal courts that the Louisiana Department of Highways was not negligent. The appellate courts of this state have on frequent occasions articulated principles which govern the liability of the Highway Department for accidents which occur on public highways. The law is settled that the Department of Highways is not responsible for every accident which may occur on the state highways, nor is it a guarantor of the safety of travelers thereon, or an insurer against all injury which may result from obstructions or defects in such highways. Wilkinson v. American Insurance Co., 311 So.2d 584 (La.App.3d Cir. 1975); Doucet v. State, Department of Highways, 309 So.2d 382 (La.App.3d Cir. 1975), writ refused 312 So.2d 340 (La.1975); Laborde v. Louisiana Department of Highways, 300 So.2d 579 (La.App.3d Cir. 1974), writ refused 303 So.2d 182 (La.1974). Generally, it is the duty of the Highway Department to construct and maintain the highways in a condition reasonably safe for persons exercising ordinary care and reasonable prudence. Coleman v. Houp, 319 So.2d 831 (La.App.3d Cir. 1975). In the performance of this duty, the character of the road and the probable traffic must be kept in view, as the requirement of reasonable safety implies reasonable safety for any lawful or proper purpose. Kilpatrick v. State, 154 So.2d 439 (La.App.2d Cir. 1963). In order to hold the Department of Highways liable for an accident caused by an unsafe or hazardous condition it must be shown that the Highway Department had prior notice, either actual or constructive, of the dangerous condition and had sufficient opportunity to remedy same or at least to alert and warn motorists of its presence and failed to do so. Coleman v. Houp, 319 So.2d 831 (La.App.3d Cir. 1975).

It can hardly be disputed from the testimony in the record that the Highway Department had actual knowledge that a defect existed in the headache bar at the west end of the Atchafalaya Bridge. The letter dated November 1,1975 and the independent observations of four different highway employees adequately established this fact. Common sense dictates that damage to a horizontal bar spanning the width of a roadway at a posted height of fourteen feet, six inches must constitute a serious hazard to overheight trucks which have a right to rely on the posted height unless the actual height is patently different from that represented. Yet, the record reflects that neither in response to the November 1, 1972 letter nor the 5:30 a. m. report of Henry Delrie was any consideration given to sending Highway Department personnel to the bridge site in order to evaluate the situation and/or warn oncoming truck traffic of the lowered crossbar. The testimony at trial revealed that the state police were available for traffic security and could have responded to a call for assistance within fifteen minutes. Hence, even as late as 7:30, when Roy Gilbert radioed the district office concerning the damaged structure, a call to the state police might have averted the ensuing accident which did not occur until approximately 8:30 a. m. Moreover, the testimony reflects that someone from the Highway Department itself could probably have reached the scene prior to the accident if prompt action had been taken. In sum, no efforts were directed toward determining the exact extent of the damage to the structure nor was any attempt made at warning oncoming truck traffic of the obstruction in spite of the knowledge that Highway 190 is heavily traveled by large trucks for which the state routinely issues cargo permits at least up to fourteen feet, four inches in accordance with La.R.S. 32:388 and although, as revealed by the testimony, a truck’s striking the headache bar is not an infrequent occurrence. Under the facts and circumstances of the instant case, we conclude that the failure of the Highway Department to heed the warnings of its own employees, to investigate and evaluate the hazardous condition, and to take measures to secure assistance in providing traffic security, proximately caused the November 2, 1972 accident and the consequent damages suffered by the plaintiffs in this case. Our finding of negligence and liability under Civil Code art. 2315 makes it unnecessary for us to consider the applicability of La.Civil Code art. 2317 as applied in our decision in Loescher v. Parr, 324 So.2d 441 (La.1975).

QUANTUM

The record fully supports the claim for damages sustained by Standard Brands, Inc. which we fix as follows: cost to repair trailer-truck in the amount of $5,836.87; cost to repair Fruehauf trailer in the amount of $950.59; cost to repair Thermo-King unit in the amount of $379.02; expense of appraisal in the amount of $117.73; expense for wrecker service in the amount of $88.40; cost of rental of substitute vehicle in the amount of $1,997.68; or a total amount of $9,370.29.

By joint stipulation, the claim of United States Fidelity & Guaranty Company, as subrogee of R. L. Smith Manufacturing Company, was set at $4,595.54. In accordance with said stipulation, we fix damages of United States Fidelity & Guaranty Company at $4,595.54.

The record also supports the fixing of damages sustained by Ryder Truck Rental, Inc. as follows: cost to repair trailer in the amount of $7,153.80; expense for wrecker service in the amount of $75.00; loss of use of trailer in the amount of $1,874.64 ($12.84 per day X 146 days); or a total amount of $9,103.44.

Finally, we must determine the amount of damages for personal injuries sustained by Walter L. Mull as a result of the accident. Mr. Mull was taken by ambulance from the scene of the accident to the Opelousas General Hospital where he was treated in the emergency room by Dr. Emile K. Ventre. According to Mr. Mull, he had lacerations to his face and head and was suffering pain in his jaw and shoulder which extended into his chest. At trial, there was evidence of permanent scarring below the lobe of Mr. Mull’s left ear extending down his jaw and the side of his chin. There was also evidence of a scar extending from behind his left ear down to his left arm pit. He was hospitalized from Thursday (date of accident) until his discharge on the following Sunday. He remained at home about three weeks before returning to work. Mr. Mull stated that he still had some difficulty with his jaw when eating and shaving. Dr. Ventre’s deposition was introduced at trial wherein he stated that Mr. Mull had suffered lacerations to his face and the upper part of his trunk and had sustained numerous contusions and bruises. The laceration to the left jaw was three and one-half inches long and extended into the parotid salivary gland. It was necessary that this would be sutured. Mr. Mull also had a four inch laceration in the left parietal region of the skull which required suturing. Additionally, there were two lacerations of the lower lip which were closed with sutures. Dr. Ventre further testified that Mr. Mull had other multiple deep lacerations of the right arm, face and neck which were cleaned and dressed. The doctor stated that, since Mr. Mull wanted to go home, he was released to his family physician after several days at the hospital and that he had not seen Mr. Mull since that time.

Under the facts and circumstances of this case, we consider that an award of $7,500.00 would be adequate and fair for the personal injuries sustained by Mr. Mull as a result of the accident. However, this amount will be subject to a reduction in the amount of $507.10, representing the stipulated amount of benefits paid by Mr. Mull’s employer’s workmen’s compensation insurer (Commercial Union Assurance) and intervenor in these proceedings.

DECREE

For the reasons assigned:

The judgment in favor of Department of Highways, State of Louisiana, and against Standard Brands, Inc. in Standard Brands, Inc. v. Department of Highways, State of Louisiana, et al., is reversed and set aside and judgment is rendered herein in favor of plaintiff, Standard Brands, Inc., and against defendant, Department of Highways, State of Louisiana, in the full amount of $9,370.29, together with legal interest thereon from date of judicial demand until paid and all costs of these proceedings insofar as permitted by La.R.S. 13:4521. In all other respects, the judgment of the court of appeal affirming the judgment of the district court is affirmed.

The judgment in favor of Department of Highways, State of Louisiana, and against United States Fidelity & Guaranty Company in United States Fidelity & Guaranty Company v. Department of Highways, State of Louisiana, et al., is reversed and set aside and judgment is rendered herein in favor of plaintiff, United States Fidelity & Guaranty Company, and against defendant, Department of Highways, State of Louisiana, in the full amount of $4,595.54, together with legal interest thereon from date of judicial demand until paid and all costs of these proceedings insofar as permitted by La.R.S. 13:4521. In all other respects, the judgment of the court of appeal affirming the judgment of the district court is affirmed.

The judgment in favor of Department of Highways, State of Louisiana, and against Ryder Truck Rental, Inc. in Ryder Truck Rental, Inc. v. Department of Highways, State of Louisiana, et al., is reversed and set aside and judgment is rendered herein in favor of plaintiff, Ryder Truck Rental, Inc., and against defendant, Department of Highways, State of Louisiana, in the full amount of $9,103.44, together with legal interest thereon from date of judicial demand until paid and all costs of these proceedings insofar as permitted by La.R.S. 13:4521. In all other respects, the judgment of the court of appeal affirming the judgment of the district court is affirmed.

The judgment in favor of Department of Highways, State of Louisiana, and against Walter L. Mull and Commercial Union Assurance in Walter L. Mull v. Robert L. Davis, et al., is reversed and set aside and judgment is rendered herein in favor of plaintiff, Walter L. Mull, and intervenor, Commercial Union Assurance, and against defendant, Department of Highways, State of Louisiana, in the amounts of $6,992.90 to Walter L. Mull and $507.10 to Commercial Union Assurance, together with legal interest on these amounts from date of judicial demand until paid and all costs of these proceedings insofar as permitted by La.R.S. 13:4521. In all other respects, the judgment of the court of appeal affirming the judgment of the district court is affirmed.

      . Court of appeal’s reasons for judgment were rendered in a single opinion, Standard Brands, Inc. v. Department of Highways, State of Louisiana, et al. In that suit, Standard Brands sought damages (wrecker service; cost of repairs to tractor-truck, trailer, Thermo-King unit; appraisal expense and vehicle rental) in a total amount of $9,353.23 from Louisiana Department of Highways, Robert E. Wilson, Ryder Truck Rental, Inc., R. L. Smith Manufacturing Company and Robert L. Davis. Department of Highways asserted a third party demand against Robert E. Wilson. Trial court rendered judgment in favor of defendants, dismissing plaintiffs suit. Department of Highways’ third party petition was also dismissed. Court of Appeal affirmed. 329 So.2d 821 (La.App.1st Cir. 1976).
      In United States Fidelity & Guaranty Company v. Department of Highways, State of Louisiana, et al., U.S.F. & G., as subrogee of R. L. Smith Manufacturing Company, sought damages to cargo carried in the Ryder Rental truck in the total amount of $4,595.54 from Louisiana Department of Highways and Robert E. Wilson. Department of Highways asserted a third party demand against Robert E. Wilson. Trial judge rendered judgment in favor of defendants, dismissing plaintiff’s suit. Department of Highways’ third party petition was also dismissed. Court of appeal affirmed. 329 So.2d 826 (La.App.1st Cir. 1976). In Ryder Truck Rental, Inc. v. Department of Highways, State of Louisiana, et al., Ryder sought damages (cost of repair to trailer, towing fee and loss of use) in a total amount of $9,103.44 from Louisiana Department of Highways and Robert E. Wilson. Department of Highways asserted a third party demand against Robert E. Wilson. Trial court rendered judgment in favor of defendants, dismissing plaintiff’s suit. Department of Highways’ third party petition was also dismissed. Court of appeal affirmed. 329 So.2d 826 (La.App.1st Cir. 1976).
      In Walter L. Mull v. Robert L. Davis, et al., Mull sought damages for personal injuries in the amount of $32,000.00 from Louisiana Department of Highways, Robert L. Davis, R. L. Smith Manufacturing Company, R. L. Smith, d/b/a Smith Manufacturing Company (last named defendant dismissed from suit on decli-natory exception). Department of Highways asserted a third party demand against Robert E. Wilson. Commercial Union Assurance intervened to recover workmen’s compensation benefits paid to Mull in the amount of $507.60. Trial court rendered judgment in favor of defendants, dismissing plaintiff’s suit. Department of Highways’ third party petition and Commercial Union Assurance’s petition of intervention were also dismissed. Court of appeal affirmed. 329 So.2d 827 (La.App.1st Cir. 1976).


source: Caselaw Access Project

author: SUMMERS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Gary M. MARMILLION.
    No. 58053
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearing Denied Dec. 14, 1976.

      Frank J. Gremillion, Hynes & Gremillion, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Douglas P. Moreau, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

The District Attorney of East Baton Rouge Parish charged that defendant, Gary M. Marmillion, “on or about the second (2nd) day of July, 1974, at and in the Parish . aforesaid, feloniously violated La. R.S. 14:60, in that he committed aggravated burglary of a structure belonging to Tiger Plaza Apartments. . . .” Defendant pleaded not guilty and not guilty by reason of insanity. After trial by jury, defendant was found guilty of aggravated burglary and sentenced to fifteen years at hard labor. Thirteen errors are assigned on this appeal.

Assignment 1

Prior to trial on October 29, 1975, the State filed a written notice of the State’s intent to introduce into evidence at the trial testimony dealing with defendant’s presence at and around the scene of the alleged crime on a date approximately three to five days prior to the crime and also on the evening of the crime itself. The notice set forth that it was the State’s belief that under Louisiana law and jurisprudence the notice was not required by any statute or decision; however, the notice was given in order to insure a fair trial and to avoid any prejudicial surprise to defendant.

Then at the trial, when the State called Debra Jeansonne to the stand, defense counsel objected, anticipating that she would, in accordance with the notice, testify to defendant’s presence at the scene of the alleged crime approximately three to five days prior to its occurrence; and that such evidence was irrelevant and immaterial. Defense counsel argued that the decision in State v. Prieur, 277 So.2d 126 (La.1973) required notice not only of offenses but of attempts to commit crimes also. Under this theory, it was asserted, the anticipated testimony to the effect that defendant was near the scene of the crime three to five days before it occurred was such an attempt to commit a crime. This meant, according to the defense, that a hearing must be held before trial to determine whether the prior offense or attempt met the tests of similarity, etc., set forth in the Prieur decision. Defense counsel also argued that the notice was not timely. After these objections, the testimony of other witnesses intervened, but when Debra Jeansonne was recalled as a witness the objections were renewed, overruled and this error is assigned.

At the outset it is noted that the pages of the record, designated by the defense to support this assignment of error, contain only this testimony of Debra Jeansonne:

She was living with Connie Breaux, Chris Kraemer and Denise Jeansonne at 4445 Ti-gerland, the Tiger Plaza Apartments, on July 2, 1974. The apartment they occupied was on the ground floor and had two bedrooms and a large living room. About midnight on July 2, 1974 she was sitting at the rear of the living room with her back to a sliding door. Suddenly she heard a rumbling sound, looked toward the front door, saw no one, and glanced over her shoulder. Gary Marmillion was coming through the sliding door and draperies.

He was wearing a dark T-shirt and dark trousers and his hair was “slicked back”. He pulled a'gun on her and commanded her to lie on the floor. In a few minutes he brought her into the back bedroom where her sister Denise Jeansonne was attempting to hide. Debra was then forced to go to the other bedroom door, which was closed, to tell Connie Breaux and Chris Kraemer to come out, “or else”.

With Marmillion’s gun at her temple, Debra called to Connie and Chris to come out, but they declined to do so. After the fifth time, there was a knock at the front door and Marmillion hurdled a chair and ran out through the sliding door.

Denise let their friend Randy Roach, a neighbor, in at the front door; he had responded to a telephone call for help which Connie and Chris had placed from their locked bedroom. The police arrived shortly thereafter and all participants were questioned. Later they were summoned to the police station to identify a suspect, who turned out to be the defendant.

Nowhere in this testimony is there a reference to defendant’s presence at and around the scene of the alleged crime on a date approximately three to five days prior to the crime. There is only testimony showing his presence at the scene of the crime as it occurred on the evening of the crime itself.

This testimony is not evidence of a prior offense as contemplated in Sections 445 and 446 of Title 15 of the Revised Statutes or the Prieur decision. Objection to this testimony was therefore unfounded.

Assignment 2

After Debra testified, her sister Denise was called as a State witness. Defense counsel again entered the same objection urged to Debra’s testimony. The objection was again overruled, and the ruling is the basis of this assignment of error.

Denise, too, testified only to facts and circumstances surrounding the actual commission of the crime. Her testimony corroborated that of her sister. The only reference to facts outside the immediate time and place of the alleged crime was testimony relating to the identification of the defendant at the police station later that same night.

As in the case of the objection to the testimony of Debra, nothing in the testimony of Denise is relevant to the defense objection. The objection is likewise unfounded.

Assignment 3

Then Kristina (Chris) Kraemer was called as a State witness. Again defense counsel entered the same objection urged under assignment 1, and again the court overruled the objection.

Kristina testified that she and Connie had remained awake in bed late on the night of July 2, 1974 talking. Through the closed door of their bedroom she heard Debra in the living room “kind of gasp” and “kind of yell” and stop. “[A] muffled man’s voice” followed. They were not expecting anyone that night and these noises startled her. She alerted Connie who was drowsing. Debra was then heard to say something like “don’t hurt me, please leave me alone,” and then the man’s voice again. Connie was then told to call the police. As a result the police and a neighbor, Randy Roach, were called.

The voices in the front room, she said, “kind of moved . . . right by our doorway.” In the meantime she had locked the door and pushed the dresser in front of it. All of a sudden they heard Debra’s pleas to them to open their door. Instead they left the room through a back window, crossed the courtyard and encountered Randy on his way to the apartment in response to Connie’s call. When he arrived, Randy knocked at the apartment door, and Denise, in a state of panic, let him in. The police arrived shortly thereafter. Connie and Chris never saw the intruder.

Nowhere in Chris’ testimony is there the slightest reference to any fact or circumstance preceding the actual burglary on July 2, 1974. For the reasons heretofore stated this assignment is also without merit.

Assignment 4

Finally Connie Breaux was called as a State witness, and the defense again entered the same objection urged under Assignment 1. For the fourth time the objection was overruled.

Connie’s testimony corroborated that of Chris in all essential details. At the lineup which they all attended she was asked to identify anyone she had ever seen around the apartment before. She was unable to identify anyone. This assignment, like the three preceding it, is without merit.

At all stages of the trial relating to the issue presented by Assignments 1, 2, 3 and 4, defense counsel and the State’s attorney argued whether the Prieur decision applied to a fact situation in which the testimony disclosed that defendant was merely near the scene of the offense three to five days before it occurred. At no time was the sufficiency of the bill of information mentioned. It was in this context that the trial judge’s ruling was made.

When the assignments of error were filed they asserted that

“[t]he basis of the objection referred to herein, was that the testimony of said witness, Debra Jeansonne, was irrelevant and immaterial to the crime charged in the bill of information, and additionally, that said evidence could only be introduced upon the filing of a proper notice as required by the Prieur decision and a hearing thereon, neither of which was present in the case.”

In addition to the Prieur question, the defense later argued that the State, in the bill of information, alleged ownership of the burglarized structure in a fictitious entity, the Tiger Plaza Apartments, then introduced evidence of another burglary of the apartment of Debra and her roommates.

As this argument is understood, the bill of information did not adequately advise the defendant of the nature and cause of the accusation as required by Section 13 of Article I of the Constitution of 1974. See also La.Const. art. I, § 10 (1921). This contention is based upon the fact that the bill of information erroneously charged that the owner of the structure burglarized was “Tiger Plaza Apartments”. And, since an allegation that the ownership of the burglarized structure is an essential averment of the short-form indictment, which the State chose to use, it was bound by the short form prescribed by Article 465 of the Code of Criminal Procedure. The State must therefore prove the ownership of the structure burglarized. In addition, the argument continues, the State has charged burglary of the “Tiger Plaza Apartments” but has submitted proof of another distinct crime, for the evidence did not concern the burglary of “Tiger Plaza Apartments” but was, instead, evidence of a burglary of an apartment leased by Debra Jeansonne and the other three girls.

No failure to advise the defendant of the nature and cause of the accusation is demonstrated here. As the record discloses, the place burglarized was well-known to all persons involved as the “Tiger Plaza Apartments”; there is an abundance of evidence that it was the structure burglarized and there is no evidence to the contrary. State v. Wright, 254 La. 521, 225 So.2d 201 (1969). It is implausible under these circumstances to contend that defendant was not advised of the “nature and cause” of the accusation. For, if “Tiger Plaza Apartments” was not the legally technical name of the owner, it was, nevertheless, the assumed name in which the owner was doing business. By referring to “Tiger Plaza Apartments” as the structure burglarized and as the owner thereof, the bill of information not only names and describes the building or structure burglarized as Article 465 requires, but it also names the owner of that structure.

Whether the State proved the allegations of the bill of information relating to the ownership of the apartment was a question for the jury. Defendant filed no motion for a bill of particulars to obtain further clarification of the bill of information; nor was a motion to quash filed alleging wherein the bill was defective.

When, in fact, the accused has been fairly informed of the nature and cause of the accusation by the indictment and has not been prejudiced by surprise or lack of notice, the technical insufficiency of the indictment may not be questioned after conviction. This is especially true where, as here, the indictment is a plain, written, concise and definite statement of the essential facts constituting the offense charged. La.Code Crim.Pro. art. 464. No motion to quash was filed before trial raising the sufficiency of the indictment, and the accused is protected against further prosecution for the same offense by reference to the record in the instant prosecution. La.Code Crim. Pro. arts. 531-38; State v. Brown, 321 So.2d 516 (La.1975); State v. Moore, 320 So.2d 208 (La.1975); State v. Santos, 309 So.2d 129 (La.1975); State v. Mason, 305 So.2d 523 (La.1974); State v. James, 305 So.2d 514 (La.1974).

This defense contention that the bill of information is insufficient is without merit.

Assignment 5

Outside the jury’s presence, the State laid the predicate for introducing defendant’s inculpatory statement to Officer Sansone, and again before the jury. However, anticipating that Officer Sansone would testify to the inculpatory statement, defense counsel objected that the witness had testified earlier that he could not recall everything the defendant said. It was the defense position that defendant was entitled to have the entire statement produced, not just a part of it.

The officer was permitted to testify to the statement made to him by the defendant. In particular, defendant’s statement placed him at the scene of the crime on July 2, 1974. His version was that he entered the apartment armed with a gun and when Debra Jeansonne screamed he left. In recounting defendant’s version of the events Officer Sansone admitted that he could not recall verbatim everything defendant told him. Defense counsel contends a complete recital of everything defendant said to Officer Sansone would undoubtedly produce other exculpatory or explanatory statements.

It is true that Section 450 of Title 15 of the Revised Statutes mandates that every confession, admission or declaration sought to be used against any one must be used in its entirety, so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford.

Nevertheless, in the absence of proof to the contrary, the fact that the purported statement of the accused as testified to by the investigating officer does not consist of a verbatim reiteration of the conversation between them, due to the witness’ inability to recall or other valid explanation, the rights of the accused under Section 450 are not violated. The law does not require the production of nonexistent portions of the confession or portions which cannot be recalled. State v. Domino, 234 La. 950, 102 So.2d 227 (1958). See also State v. Odom, 292 So.2d 189 (La.1974); State v. Bickham, 239 La. 1094, 121 So.2d 207 (1960); State v. Kennedy, 232 La. 755, 95 So.2d 301 (1957); State v. Desroches, 48 La.Ann. 428, 19 So. 250 (1896).

This assignment is without merit.

Assignment 6

Meredith Katuski testified on behalf of the State that just prior to midnight on July 1, 1974, about one hour before the alleged offense in the early hours of July 2, 1974, someone knocked at her door at the River Road Apartments in the Tigerland Subdivision, the same subdivision in which the Tiger Plaza Apartments were located. When the caller declined to say who he was, she refused to open the door. From an upstairs window of the apartment she looked out at him and detected a person resembling someone she had seen the week before in the laundry room. After lingering a while the caller departed in the direction of the Tiger Plaza Apartments.

The defense objected to this testimony, contending that it was evidence of an extraneous offense committed by the defendant. This being the case, it is argued, the introduction of this testimony should have been preceded by a notice that the State would attempt to show a prior offense of a similar nature; also, a hearing should have been held in advance outside the presence of the jury, to determine whether the testimony met the standards of Sections 445 and 446 of Title 15 of the Revised Statutes and the decision in State v. Prieur, 277 So.2d 126 (La.1973). As already set forth in assignment 1, the State did put defendant on notice, although the notice stated that the State was not required to do so by any statute or decision, the notice being given to assure a fair trial and to avoid prejudicial surprise to the defendant.

It is difficult to categorize this testimony as a separate, extraneous offense. The testimony more properly relates, in time and place, to acts constituting a part of a continuing series of events culminating in the offense charged and is testimony in aid of the witness’ identification of the defendant. Defendant’s presence at the washateria was not, in itself, an offense. And knocking at Meredith Katuski’s door was no crime.

An objective view of this evidence supports the ruling of the trial judge that it did not involve an effort on the part of the State to produce evidence of similar offenses under Sections 445 and 446 of Title 15 of the Revised Statutes. It was not necessary, therefore, for the State to give the notice it did give in this case.

The contention that a prior hearing is required when the State attempts to introduce evidence of similar offenses to prove knowledge, system or intent is not relevant under our finding since this testimony is not of that character. Furthermore, no authority requires such a hearing, and no authority is furnished to support the contention.

This assignment is without merit.

Assignment 7

At the conclusion of the State’s case in chief, defense counsel moved for a directed verdict contending that the State had failed to introduce any evidence that defendant had burglarized a structure owned by Tiger Plaza Apartments, as alleged in the bill of information. Instead, according to the defense, the State proved burglary of an apartment leased by Debra Jeansonne and her three roommates.

When the defense argues that the apartment was leased by Debra Jeansonne and her roommates from the Tiger Plaza Apartments, and the evidence supports that fact, there is some evidence, albeit very little that Tiger Plaza Apartments is the owner of the structure burglarized. Generally, it may be inferred, the owner is the lessor of apartments.

While these references to the record are made to answer the defense contention, there is another consideration which bears mention. The short-form indictment does require reference to the owner of the structure burglarized, and this requirement has been complied with. La. Code Crim.Pro. art. 465. But the requirement is informational and cannot have the effect of adding elements to the crime not contained in the statute defining the crime. The short form indictment is designed as a simplified method of informing defendant of the nature and cause of the accusation. In this case, even if the State did not prove ownership, the bill of information complied with the short form indictment by naming the owner. In any event, proof of ownership of the structure burglarized is not an essential element of the crime of aggravated burglary as defined in Article 60 of the Criminal Code. The statute reads:

“Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.
“Whoever commits the crime of aggravated burglary shall be imprisoned at hard labor for not less than one nor more than thirty years.”

Moreover, the 1975 amendment to Article 778 of the Code of Criminal Procedure deprives the trial judge of the right to direct a verdict of acquittal in jury cases. This amendment being procedural in nature and effective September 12,1975 is applicable to this trial held some time thereafter on October 29-31, 1975. The trial judge could not therefore direct a verdict.

Assignments 8, 10 & 11

Before argument to the jury, the defense submitted several requests for special charges. The trial judge declined a special charge by the defense which read:

“I further charge you that if you find that defendant has proven by a preponderance of the evidence that he was insane at the time of the commission of the offense charged, then I instruct you that you must return a verdict of not guilty by reason of insanity unless the state has proven sanity beyond a reasonable doubt.”

To the trial court’s refusal to give the charge, defense counsel objected and filed assignment 8. Assignment 10 refers to the denial of a motion for a new trial. The motion alleged that the guilty verdict was contrary to the law and the evidence because there was proof that defendant was insane and unable to distinguish between right and wrong at the time of the offense. Assignment 11 pertains to the refusal of the motion for a new trial based upon the refusal of the judge to give the jury requested special charge number 2 quoted above.

Initially it is noted that assignment of error 10 is without merit. This Court’s appellate review is limited in criminal cases to questions of law, La.Const. art. V, § 5(C) (1974). A claim that the verdict is contrary to the law and the evidence because the evidence proved defendant’s insanity is a question of fact for the jury.

When the trial judge refused to give defendant’s requested special charge number 2, defendant did not object to the ruling, instead he waited until the jury retired to deliberate. The State contends it was then too late to object because the judge could not then correct his ruling and thereby avoid a possible error and a new trial. To support its contention the State cites State v. Beard, 312 So.2d 278 (La. 1975), where we held that a defendant waived his objection to a charge by not objecting when the charge was given, but objecting only after the jury was retired for deliberation. The Beard case did not involve a requested special charge. The decision was based upon the failure to object contemporaneously to the judge’s general charge.

Earlier in State v. Fink, 255 La. 385, 231 So.2d 360 (1970), we held that when the defense failed to request a special charge on entrapment, objection to the failure to charge entrapment could not be raised for the first time on a motion for a new trial.

The decisions in both the Beard and the Fink cases were based upon Article 841 and both are correct because no written requests for special charges by defendant were involved. However, the case at bar is distinguishable. Here the defendant submitted a request for special written charges as required by Article 807 of the Code of Criminal Procedure. As amended in 1974, Article 841 of the Code no longer requires an objection to the court’s ruling on “any written motion.”

Although special written charges are not referred to as motions in the code, they have many of the indicia of such; and, insofar as providing a proper basis for appellate review, written charges furnish the same information. The language of Article 841 that an objection is not required to the Court’s ruling on any written motion was undoubtedly designed to relax the former rule which made few exceptions to the requirement that a bill of exceptions must be reserved to any ruling complained of. In this light, the State’s contention would require a construction of Article 841 which is not warranted under these circumstances. La.Code Crim.Pro. arts. 2, 3.

Considered on its merits the requested charge need not have been given for it requires qualification, limitation or explanation; and, those portions of the charge not requiring qualification are included in the general charge. La.Code Crim.Pro. art. 807. A universally accepted principle in criminal prosecutions requires that if the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility. La.Rev.Stat. 14:14. On the other hand, a presumption exists that a defendant is sane and responsible for his actions. By statute in Louisiana this presumption relieves the State, in whose favor it exists in a criminal prosecution, from the necessity of any proof. La.Rev.Stat. 15:432. The burden falls, therefore, on the defendant to overcome this presumption and establish his insanity by a preponderance of the evidence. La.Code Crim.Pro. art. 652; State v. Clark, 305 So.2d 457 (La.1975); State v. Toon, 172 La. 631, 135 So. 7 (1931); State v. Seminary, 165 La. 67, 115 So. 370 (1928); State v. Scott, 49 La.Ann. 253, 21 So. 271 (1897). Constitutionality of the presumption of sanity and the defendant’s burden to overcome that presumption has been settled by the highest authority. Leland v. Oregon, 343 U.S. 790 (1952). See also Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) (Rehnquist, J., concurring).

The State’s traditional burden of proof is to establish beyond a reasonable doubt all necessary elements of the offense. Once this rigorous burden of proof has been met, it having been shown that defendant has committed a crime, the defendant should bear the burden of establishing his defense of insanity in order to escape punishment. The State is not required to produce countervailing proof of sanity; the question whether defendant has affirmatively proven his insanity and should not be held responsible for his actions is one for the jury.

The trial judge correctly charged the jury as follows:

“. . . In this case the accused has entered a dual plea of not guilty and not guilty by reason of insanity. As a consequence of such a plea, you must first determine whether or not the accused committed a crime such as the ones named when I instructed you as to the responsive verdicts that you may return in the case. If you are convinced beyond a reasonable doubt that the accused did commit any of these crimes, any one of these crimes, then you must proceed to a determination of whether he was sane at the time the crime was committed and thereby criminally responsible for committing it. Preliminarily, I instruct you that the law presumes every person to be sane. This presumption continues to exist until it is overcome or outweighed by evidence to the contrary. Under the law of this state, insanity at the time of the commission of a crime exempts the offender from criminal responsibility. And Article 14 I’ve already read to you. It provides as follows: If the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility. A person is legally insane if his mind is so impaired or deranged, whether from nature or by accident or disease, as to render him incapable of planning and acting, or of having knowledge of the nature and quality of the act he is doing; incapable of realizing his responsibility to society and to others; in sum, incapable of distinguishing between right and wrong. While the state has the burden of proving beyond any reasonable doubt that the accused is guilty, the accused has the burden of proving insanity at the time of the crime. However, the accused does not have to prove his insanity beyond a reasonable doubt; the law requires that the defense of insanity at the time of the crime be established by a preponderance of the evidence. By preponderance of the evidence is meant that superior weight- of evidence, which, while not enough to wholly free the mind from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other. Preponderance of the evidence has reference to quality of evidence and not quantity or number of witnesses. With particular reference to the issue of the sanity or insanity of an accused as of the time of the commission of an offense, it is not determinable on the testimony of the medical experts alone when there is other proof. Consideration must be given by the jury to all of the admissible evidence bearing on such mental condition, the testimony of the individual doctors who made up the sanity commission, the opinions of other experts and of lay witnesses, the conduct and actions of the accused, and the like. Subnormal intelligence or weakness of mentality does not in and of itself constitute legal insanity. The test, as I have previously stated, is whether the person urging the defense of insanity can distinguish between right and wrong. If you acquit the accused on account of insanity at the time of the crime, your verdict should so state, that is, the form of your verdict would be, not guilty by reason of insanity. Whether the accused was sane or insane at the time of the alleged crime is an issue for you,- the jury, to decide.”
Assignments 8 and 11 are without merit.

The substance of contentions raised by assignments 9, 12 and 13 have been considered under assignments 1, 2, 3, 4 and 7 and found to be without merit.

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

DENNIS, J., concurs, disagreeing with the statement in treatment of assignment no. 7 that the amendment abolishing the directed verdict was purely procedural.


author: TATE, Justice.

text:
    STATE of Louisiana v. Lenzy FELTON.
    No. 58062.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearing Denied Dec. 10, 1976.
    See also, La., 339 So.2d 801.

      Steve Katz, Kidd, Katz & Strickler, George M. Strickler, Jr., Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Felton was convicted of two counts of extortion, La.R.S. 14:66, and sentenced to concurrent sentences of ten years on each count. Upon appeal, the defendant raises three principal arguments for reversal. He contends that:

(1) The trial court erred in overruling his motion to quash the indictment based upon the alleged unconstitutional vagueness and overbreadth of the extortion station, La.R.S. 14:66 (Assignment of Error No. 1);
(2) The trial court erred in overruling his challenges for cause of two prospective jurors (Assignments Nos. 2 and 3);
(3) The trial court erred in denying a mistrial, when the foreman of the jury made an allegedly inconclusive report as to the number of jurors who concurred in the verdict (Assignment No. 5).

Context Facts

At the time of the offenses, the defendant was a police officer. In each instance, while on patrol he found a couple in a parked car. He threatened each of the individuals with arrest if the couples did not perform the sex act in his presence, and in each instance he threatened the female with arrest if she did not subsequently engage in sexual intercourse with himself. He did have sexual intercourse with the first female, and attempted intercourse with the second.

He was charged with two counts of extortion. La.R.S. 14:66. That statute provides that “Extortion is the communication of threats to another with the intention thereby to obtain anything of value or any acquittance, advantage, or immunity of any description. * * * ”

The defendant moved for a bill of particulars as to “What thing or value or acquittance, advantage or immunity is it alleged that the defendant attempted to obtain through the use of a threat or threats . ?” The state answered: “Defendant obtained sexual gratification and sexual participation through threats.”

1. Constitutionality of statute

(a) Vagueness:

By his motion to quash, the defendant contends that the statutory language “to obtain anything of value or any acquittance, advantage, or immunity of any description” is unconstitutionally vague, in that the statutory language does not outlaw conduct with sufficient precision so that a person can know that his conduct falls within the scope of the prohibition sought by the statute.

We rejected a similar contention in State v. Cloud, 248 La. 125, 176 So.2d 620 (1965). With regard to the statutory terms attacked as vague, we held, 176 So.2d 622: “Viewed in the context of their ordinary meanings, the words are not extremely difficult to comprehend. They offer proper guidelines to persons of ordinary intelligence as to what conduct is extortion. That is all our law requires.” See also Black’s Law Dictionary, verbo “Advantage”, p. 72: “Any state, condition, circumstance, opportunity, or means specially favorable to success, prosperity, interest, reputation, or any desired end” (4th ed., 1951).

We thus reject the present contention of vagueness, which is solely based upon the facial invalidity of the statute.

The defendant does not argue that, if the statute is not vague, the crime of extortion is not committed when a man forces, through threats a woman to have sexual intercourse with himself, or to perform a sexual act in his presence for his own sexual gratification. As indicated above, in such instances, the crime of extortion is committed when, by the use of threats, the accused obtains from the victim performance (or non-performance) of a substantial act for the advantage (here, sexual gratification) of the accused.

(b) Overbreadth:

By his supplemental motion to quash, the defendant also contends that the statute is unconstitutionally overbroad. The thrust of this argument is that the statutory terms are broad enough to inhibit constitutionally protected areas of expression and free speech, such as the threat of a creditor to sue a debtor if he does not pay his debt, or the public threat of a political candidate to expose skeletons in the closet of his election opponent.

This argument overlooks the purpose and context of the statute. See State v. Newton, 328 So.2d 110 (La.1976).

The general scope of the crime of extortion “is intended to include what is commonly known as ‘blackmail.’ ” Official Revision Comment, Section 66, La. Criminal Code of 1942. The purport of the statute is to prohibit the use of threats to cause the victim to part with his property or to do an act, or refrain from doing an act, to the advantage of the threatener, who could not without the threat otherwise lawfully secure such advantage willingly from the victim. See LaFave and Scott, Criminal Law, Section 66 (1972).

The statute as thus construed is not overbroad. It is not facially unconstitutional, as contended. As thus construed, the statute does not infringe upon or inhibit expression constitutionally protected. The prosecution of other conduct beyond its scope is not here at issue, for purposes of this motion to quash essentially based upon the facial invalidity of the statute.

2. Challenges for cause of prospective jurors

The defendant, who exhausted his peremptory challenges, contends that the trial court erred in denying his challenges for cause of two prospective jurors. One of them had indicated a particular dislike of sexual crimes. The other had read about the present charges in the newspapers and, initially, indicated she would require some evidence on behalf of the accused to acquit.

However, in each instance, after being instructed of the state’s burden to prove guilt beyond a reasonable doubt and of the presumption of innocence, the prospective juror assured the court that he/she would follow the instructions of the court and convict or acquit only upon the evidence offered at the trial, laying aside predispositions based upon attitudes or opinions from outside the courtroom.

Although the issue is close, upon reviewing the voir dire of these prospective jurors as a whole, we are unable to hold that the trial court abused its sound discretion in determining that these jurors could serve impartially and render an impartial verdict according to the law and the evidence. See State v. Jones, 315 So.2d 650 (La.1975).

3. Mistrial because of ambiguity of jury foreman’s report

By this assignment, the defendant contends that the foreman of the jury reported that the polling in the courtroom was different than the polling in-the jury room and that therefore a mistrial should have been ordered.

The foreman of the jury reported the verdict separately as guilty on both counts. In each case, the jury was polled, and ten of them voted for guilty as charged.

The present issue arose after the jury was polled as to Count 1. As noted, ten of the jurors agreed that guilty was their verdict. (Two indicated “No”, it was not their verdict, one of them adding: “Guilty of attempt.”)

The foreman then asked the judge a question. He stated, “As foreman, that’s not exactly the way the vote came out the first time. Now I realize that we need ten as you so told us. The end result is the same but it’s not — the breakdown is not exactly the same.”

The trial judge replied that, since the law requires ten jurors to concur in the verdict and ten had concurred, the verdict was acceptable. The defendant’s counsel then objected and asked for a mistrial.

The evidence indicates that at least ten jurors concurred in the verdict in the jury room and that ten jurors concurred in the verdict upon polling in open court. If indeed there were any doubt that ten jurors concurred in the verdict of guilty, the defendant might have requested a remand to the jury room or a re-polling of the jury.

The defendant did not request such relief. He moved only for a mistrial.

No authority is cited requiring a mistrial under the circumstances shown, nor is any prejudice to the defendant reflected.

Decree

For the reasons assigned, we affirm the convictions and sentences.

AFFIRMED.

CALOGERO, J., dissents. R.S. 14:66 is unconstitutionally overbroad.

      . The statutory definition concludes: “ * * * The following kinds of threats shall be sufficient to constitute extortion:
      “(1) A threat to do any unlawful injury to the person or property of the individual threatened or of any member of his family or of any other person held dear to him;
      “(2) A threat to accuse the individual threatened or any member of his family or any other person held dear to him of any crime;
      “(3) A threat to expose or impute any deformity or disgrace to the individual threatened or to any member of his family or to any other person held dear to him;
      “(4) A threat to expose any secret affecting the individual threatened or any member of his family or any other person held dear to him;
      “(5) A threat to do any other harm.”


text:
    STATE of Louisiana, Appellee, v. Michael F. JOHNS and Alton Ray Lovett, Appellants.
    No. 57802.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearing Denied Dec. 10, 1976.

      William F. Baldwin, Shreveport, for Michael F. Johns.
    John Ford McWilliams, Jr., Bossier City, for Alton Ray Lovett, William B. Lynch, Bossier City, for Michael F. Johns and Alton Ray Lovett.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Charles R. Lindsay, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendants Johns and Lovett were convicted of aggravated escape, La.R.S. 14:110B, and each sentenced to ten years at hard labor. Upon their appeal, the defendants rely upon sixteen assignments of error, most of which question the lawfulness of the detention from which they are alleged to have escaped. They also argue the unconstitutional vagueness of the statute they are charged with violating.

The defendants are indicted for escape from the Caddo Correctional Institute [“CCI”], where they allegedly were lawfully detained by its superintendent Carr, under circumstances wherein human life was endangered. At the time of the charged escape, Johns was confined in CCI as a result of convictions of several misdemeanors, while Lovett was there held under an indictment for murder not yet tried. The state’s evidence shows that they escaped from CCI by using makeshift knives to threaten and confine two CCI employees.

The offense with which they are charged, “Aggravated Escape”, is statutorily defined by La.R.S. 14:110B: “The intentional departure of a person from the legal custody of any officer of the Department of Corrections or any law enforcement officer or from any place where such person is legally confined when the departure is under cir cumstances wherein human life is endangered.” (Italics ours.)

Vagueness

Preliminarily, we find no merit to the contention that the statutory phrase “under circumstances wherein human life is endangered” is unconstitutionally vague. Assignments 3 and 23.

The statutory purpose is to impose a more severe punishment for escapes endangering human life (“aggravated” escapes) than for those which do not (“simple” escapes, see footnote 1). Official Reporter’s Comment (1942), La.R.S. 14:110. The statutory phrase offers guidelines of sufficient precision so as to inform persons of ordinary intelligence of the conduct made penal; the statute is thus not vague. See State v. Felton, 339 So.2d 797 (rendered this date).

See also State v. Marsh, 233 La. 388, 96 So.2d 643, 645-46 (1957), rejecting a similar attack upon other phrases in the statute.

Escape from place where defendants were “legally confined”

By various motions, evidentiary proffers, and objections to evidentiary rulings, the chief defense raised by the defendants is that, at the time of their escape, they were not “legally confined” at the Caddo Correctional Institute because, allegedly, they were lawfully in the custody of the sheriff of the parish, and the sheriff had no authority to deliver them over to detention by CCI’s Superintendent Carr, a non-deputized employee of the parish.

Ultimately, the trial court concluded that these inmates of the CCI were as a matter of law “legally confined” there. The basis for this ruling is that the CCI is a penal place of detention operated by the Caddo Parish Police jury for safekeeping and housing of those persons serving their sentences, as authorized by La.R.S. 15:709. Also, by other valid regulation those awaiting trial were lawfully confined at CCI:

The police jury is authorized to adopt regulations “they may deem expedient for the police and good government of all jails and prisons in the parish.” La.R.S. 15:702. In accordance therewith, the police jury adopted a resolution (introduced in evidence in the hearing on preliminary motions) by which it agreed with the sheriff to accept custody at CCI of prisoners “awaiting trial, sentence, or appeal” at the parish courthouse jail who could not “be adequately housed there”.

The trial judge accordingly felt that prisoners at CCI who had been transferred there by the sheriff, either while awaiting trial (Lovett) or after being sentenced to the parish jail (Johns), were “legally detained” at CCI. Therefore, an escape by such a prisoner from CCI constituted a violation of La.R.S. 14:110.

We find no error in this ruling.

Therefore, we find no merit to the several assignments of error by which the defendants contended to the contrary, including:

Assignment 1, taken to the overruling of a motion to quash on the ground that no crime was charged by the indictment for the escape from CCI;

Assignments 2 and 4, taken to the refusal of the trial court to permit evidence as whether the CCI was properly constructed or maintained according to the health regulations prescribed by La.R.S. 15:751-63, and as to whether the defendant Johns had been afforded proper medical attention at the time of his escape;

Assignments 7 and 8, taken as to the refusal of the trial court to permit cross-examination of the minute clerk as to whether, following the sentences of John to the parish jail, there were any other orders or notations showing authority for his transfer to the CCI;

Assignments 9, 10, 11, 12, 14, and 20, taken to the trial court’s evidentiary rulings based on its holding that, as a matter of law, the defendants were “legally confined” at CCI by their physical transfer there by the sheriff in accordance with police jury regulation, and taken to its consequent instruction to the jury that CCI was a lawful place of confinement for prisoners in the custody of the parish sheriff.

Other Assignments

We likewise find no merit to the other assignments of error urged:

Assignments 15 and 16: No reversible error is shown by the trial court’s refusal during the trial to order subpoenas issued to produce the disciplinary proceedings of the two guards overpowered in the escape, who were reinstated after the investigation: There was no showing that material favorable to the defendants had been withheld or that any of the guard’s statements therein were inconsistent with their trial testimony. (The court noted that, earlier, in response for a defense motion for production of favorable evidence, the state had denied that any was shown by its files.)

Assignment 17: The causal connection of the makeshift knives used in the escape is adequately proved by the state in connection with their introduction.

Assignment 18: The trial court properly denied the defendants’ motion for a mistrial. The motion was based upon testimony of the CCI superintendent as to the layout and programs of the institution. The defendants permitted this introductory examination of the witness to proceed without objection at first. When they objected to the relevancy, the state ceased this line of questioning. The motion for mistrial was not made until after subsequent relevant testimony was elicited from the witness. Aside from the lack of prejudice shown to have resulted from the objected-to testimony, the drastic remedy of a mistrial (here made only after the defendants’ belated objection was maintained) is not shown to be warranted merely because, at most, irrelevant testimony had previously been introduced without objection.

Assignment 24: The motion for a new trial (based upon the assignments previously made) was properly overruled.

Decree

Accordingly, for the reasons assigned, we affirm the convictions and sentences.

AFFIRMED.

      . The offense of “aggravated” escape, La.R.S. 14:110B, is distinguished from that of “simple” escape, La.R.S. 14:110A, in that the latter involves intentional departures from detention “under circumstances wherein human life is not endangered.”