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

text:
    STATE of Louisiana v. Larry PRICE.
    No. 56143.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    On Rehearing Denied Jan. 19, 1976.

      William H. Byrnes, III, Elizabeth W. Cole, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

The pertinent issue in this case is whether the prosecutor’s reference to a photograph of defendant as a “mug shot” was a direct or indirect reference to “another crime committed or alleged to have been committed by the defendant as to which evidence is inadmissible,” thus mandating a mistrial under the provisions of Article 770 of the Code of Criminal Procedure.

In the trial of this armed robbery case, the prosecutor, while questioning a state witness in the presence of the jury about a photographic lineup, referred to defendant’s photograph as a “mug shot.” The sequence of occurrences under discussion at the time made it evident that the photograph of defendant was one taken prior to the commission of the offense for which he was being tried.

Defendant contends that the prosecutor’s use of the term “mug shot” entitled him to a mistrial under Article 770, and that the trial judge’s refusal to grant the requested mistrial constituted reversible error. Article 770 provides in pertinent part:

“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the . . . district attorney . during the trial . . . refers directly or indirectly to:
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.” (Emphasis provided)

Our law affords no discretion to the trial judge when a request for a mistrial is made under this provision of the Code of Criminal Procedure. The sole area of our concern is thus whether use of the term “mug shot” before a jury is an indirect reference to other crimes committed by or allegedly committed by defendant. This question is res nova. In State v. Jones, 283 So.2d 476 (La.1973), however, we noted that “mug shots” connote a criminal record and create a prejudicial effect upon the jury'. Jones was concerned with the actual introduction into evidence of the “mug shot” photographs themselves, but we believe that 'similar if not identical prejudice flows from the mere utterance of the term “mug shot,” a term which to the layman means a police photograph taken of a person who has committed a crime or who is suspected of having committed a crime. Thus, we conclude that the use of the term “mug shot” before a jury is an indirect reference to another crime committed or alleged to have been committed by the defendant when it is used in circumstances which suggest that the photograph was made before the commission of the offense for which defendant is on trial.

The state alleges that the prosecutor in this case had used the term “mug shot” on several occasions earlier in the trial without objection by the defense attorney. They argue that the defendant had therefore waived his objection to the use of the term “mug shot.” Were this a case where a defense attorney had without arguable explanation or extenuating circumstances repeatedly neglected to move for a mistrial notwithstanding repetitious impermissible use of the term by the prosecutor, we would perhaps be required to answer the state’s argument and determine whether in that case the defendant’s earlier failures to move for a mistrial under Art. 770 precludes his doing so thereafter. In the case at hand, however, we are unable to charge defense counsel with either repetitious neglect or a studied choice to permit the prosecutor’s repeated use of the prejudicial reference.

The prosecutor’s reference to “mug shot” appears in the transcript three times. The first time he used it was in his opening argument, a point in trial during which the state, to the knowledge of the jury, is presenting its contentions only. The second and third occasions which together prompted the defense attorney’s motion for mistrial occurred in immediate succession.

Accordingly, defendant’s conviction and sentence are reversed and the case is remanded for retrial.

SANDERS, C. J., dissents and assigns written reasons.

SUMMERS and MARCUS, JJ., dissent.

SANDERS, Chief Justice

(dissenting).

The majority has reversed defendant’s conviction of armed robbery, because the District Attorney in a question to the victim used the term “mug shots” in the following context:

“Q And, you picked the defendant out of the mug shots?
“A Yes, sir.
“Q Prior to any lineup ?
“A Yes, sir.
“Q BY [DEFENSE COUNSEL] : At this time, I would object to the last question of the District Attorney and ask for a mistrial.”

The theory adopted by the majority is that the “mere utterance” of the term “mug shots” refers to “another crime committed ... by the defendant,” thus making a mistrial mandatory under Article 770 of the Louisiana Code of Criminal Procedure. I think not.

The term “mug shot” means “a photograph of a person’s face.” Although it is often used to refer to official police photographs, this usage is not invariable. See Verbo mug shot, Webster’s Third New International Dictionary. Moreover it is well known that there are many official police photographs of persons who have committed no crimes.

An examination of the transcript in the present case shows that the District Attorney used the words “photographs,” “photos,” and “mug shots” interchangeably. On page 62 of the transcript alone, the District Attorney used “photographs” twice, “photos” twice, and “mug shots” once. He made no reference to the source of the photographs. It is evident from the context that the District Attorney was using the term in the sense of a photograph of a person’s face. That it was so understood is evidenced by the circumstance that the defense made no objection to the term when it was used in the District Attorney’s opening statement or during the initial stages of the interrogation of the victim. In fact, it is my opinion that defense counsel’s failure to object to the term until at least the third time it was used constituted a waiver, since no additional prejudice could possibly have been suffered from the last use of the term.

Assuming, arguendo, that the term “mug shot” connotes commission of a crime, nevertheless, the rule is well-recognized in Louisiana that, though an item of evidence suggests another crime, the evidence is nonetheless admissible if it is relevant to a genuine factual issue in the case. See State v. Kinchen, La., 290 So.2d 860 (1974); State v. Moore, La., 278 So.2d 781 (1972).

Here, the identification of the defendant as the armed robber was a strongly contested issue. The purpose of this line of testimony was to identify the defendant by disclosing what actually transpired. It was designed to show that prior to the identification lineup, the victim picked out the defendant’s photograph from a collection of eight face-shots of different persons. I view it as an important link in the chain of evidence. If it was prejudicial to the defendant, it was so only in the same sense as any other evidence of the commission of a crime.

In State v. Childers, Mo., 313 S.W.2d 728 (1958), the Supreme Court of Missouri upheld the actual admission of mug shots in evidence because they were relevant to the contested issue of identification. The court stated:

“Throughout the trial defendant was seeking to establish that he was not the person who participated in the robbery. He sharply challenged the identification of him from the photographs shown to the witnesses at the police station and the personal identification of him after he was taken into custody by the police. The presence of the defendant in the courtroom and a viewing of his photograph by which the State’s witnesses identified him as a participant in the robbery made it possible for the jury to determine the accuracy or inaccuracy of their identification of him from the photograph shown them on July 29th.”

In the present case, only word usage is at issue. If the holding is applied strictly, it may well destroy the evidentiary value of fingerprints found at the scene of a crime, which to be probative must be compared to a defendant’s fingerprints already on file with the law enforcement system. Compare State v. Kinchen, supra.

For the reasons assigned, I respectfully dissent.

ON REHEARING

MARCUS, Justice.

Larry Price was charged by bill of information with the armed robbery of Kenny Henderson on November 24, 1972 in violation of La.R.S. 14:64. After trial by jury on June 26, 1973, he was found guilty as charged and was subsequently sentenced to serve thirty years at hard labor. Defendant appealed to this court, relying on five bills of exceptions for reversal of his conviction and sentence. Finding merit in Bill of Exceptions No. 4 on original hearing, we reversed his conviction and sentence and remanded for a new trial. Upon application of the state, we granted a rehearing to reconsider our original decree. After reconsideration, we find no merit in Bill of Exceptions No. 4. Likewise, we find no substance in the other bills of exceptions reserved during the trial of this matter. Accordingly, we vacate our original decree and affirm defendant’s conviction and sentence.

BILLS OF EXCEPTIONS NOS. 1, 2 AND 5

These bills, which defendant has consolidated for argument, were reserved when the trial judge overruled his objection to the use at trial of evidence of his commission of offenses similar to the one with which he was charged.

In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment. La.R.S. IS :445. Where the offense is one of a system, evidence is admissible of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged. La.R.S. 15:446. Within a reasonable time before trial, the state must furnish the defendant a statement in writing of the similar acts or offenses it intends to offer in evidence. State v. Prieur, 277 So.2d 126 (La.1973). Even if otherwise admissible, however, evidence of other offenses must be excluded if its prejudicial effect outweighs its probative value. State v. Moore, 278 So.2d 781 (La.1973).

The facts in this case show that defendant perpetrated, within the short period of approximately three weeks, a series of armed robberies upon drivers of Zetz 7-Up beverage trucks that were en route making deliveries. While armed with a sawed-off shotgun, defendant robbed Kenny Henderson, a driver for the company, on November 24, 1972. That same day, only about a half hour later, defendant robbed Robert Kranz, another truck driver for the, company. On December 11, 1972, defendant robbed John Machica, also a truck driver on his route at the time. Kenny Henderson was also robbed by defendant on December 5 and December 15, 1972 in the same circumstances.

Defendant was charged only with the armed robbery of Kenny Henderson on November 24, 1972. Kranz and Machica, however, as well as Henderson, were called as witnesses at trial. Also testifying was Cephus Smith, Machica’s assistant, who was with him when he was robbed. All of these witnesses recounted the events of the robberies and made positive identifications at trial of defendant as the person who had robbed them.

Defendant employed the same method and plan of operation in all of these robberies. All the victims of the robberies were employees of the same beverage company, and they were robbed in almost identical circumstances. Our jurisprudence is uniform in holding that evidence of other armed robberies is admissible where almost identical tactics are used to show the system or modus operandi employed by the accused. See State v. Grant, 295 So.2d 168 (La.1973) and cases cited therein. The robberies were therefore crimes of a system and evidence of these robberies was admissible to show guilty knowledge and intent. State v. Spencer, 257 La. 672, 243 So.2d 793 (1971). The state furnished defendant with a written notice of intention to use evidence of the other similar crimes, as required by State v. Prieur, supra, and the trial judge allowed its admission after contradictory hearing. Further, we are of the opinion that the probative value of evidence of these similar offenses outweighed any possible prejudicial effect. Accordingly, Bills of Exceptions Nos. 1, 2 and 5 are without merit.

BILL OF EXCEPTIONS NO. 3

One of the state’s witnesses, Cephus Smith, testified that he caught a glimpse of defendant in handcuffs at the police station before identifying him at the lineup. Defendant thereupon moved for a mistrial. He reserved this bill of exceptions to the trial judge’s denial of his motion.

The episode of which defendant complains occurred as follows. The witnesses, who were called to the police station for the purpose of identifying suspects, were stationed in the hall. One of the witnesses (called to identify a criminal defendant in another trial), attempting to ascertain where the lineups were to be conducted, opened a door. The witnesses viewed defendant in handcuffs for an instant in the adjoining room. One of the officers in that room immediately slammed the door shut. As Robert Kranz, one of the beverage truck drivers, testified:

STATE: You got a glimpse of the defendant. Do you know how this came about ?
WITNESS : Yes, sir. We were all trying to find out where we were to go to the lineup and one of the guys opened the door and they were bringing this guy in and they had him in handcuffs and when they opened the door, we glimpsed him.
STATE: One of the people that was supposed to go and identify someone opened the door?
WITNESS: Right.
STATE: It wasn’t a policeman that opened the door ?
WITNESS : No, someone going to identify someone did. One of us.
We were all walking down the hall and Daniel opened the door and one of the policemen going by grabbed the door and closed the door.
STATE: How long did the door remain opened ?
WITNESS: About one second.
STATE: Did that influence your identification ?
WITNESS: No, not at all.
STATE: Are you sure that is the man that robbed you ?
WITNESS: Yes, sir, the defendant.
STATE: Is there any doubt in your mind about that?
WITNESS: No, sir, none at all.

Even if we assume arguendo that the out-of-court identifications were tainted by this episode, it is settled that the witness’ in-court identification does not violate the accused’s due process rights where it has a source independent of the out-of-court identification. State v. Bland, 310 So.2d 622 (La.1975) and cases cited therein. In State v. Newman, 283 So.2d 756 (La.1973), we stated that a determination of whether the witness’ in-court identification was based on an independent source involves three factors: (1) the prior acquaintance of the witness with the accused; (2) the length of time the witness observed the perpetrator before, during, and after the offense; and (3) the circumstances in which the observation was made, including illumination at the scene, the physical capacities of the witness, and the emotional state the witness was in at the time of the observation.

In the instant case, all of the robberies occurred in broad daylight at about noon. Defendant was not wearing a hood or mask at the time. On each occasion, defendant directly confronted his victims, spoke to them, brandished a weapon, and ordered that they turn over their money to him. All of the witnesses evidently had an appreciable length of time in which they could observe defendant’s appearance. The victim of the crime charged, Kenny Henderson, whom defendant robbed on three occasions, testified that before defendant robbed him the third time he recognized him at once and attempted to retreat. At trial, Kenny Henderson and the other victims made positive identifications of defendant as the perpetrator of the robberies.

We are satisfied that each in-court identification had a source independent of the out-of-court identifications. As a result, the in-court identifications did not violate defendant’s due process rights. We therefore find no merit in this bill.

BILL OF EXCEPTIONS NO. 4

After Robert Kranz gave an in-court identification of defendant as the man who had robbed him, the prosecutor asked him whether he had also identified him in the lineup. The witness replied that he had, and that he had also identified him from some photographs. Proceeding to question him about these photographs, the prosecutor twice referred to them as “mugshots.” ■Defendant then moved for a mistrial. This bill was reserved when the motion was denied.

Louisiana Code of Criminal Procedure article 770 provides in relevant part:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(2) Another crime committed by the defendant as to which evidence is not admissible;
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

(Emphasis added.)

Defendant contends that the prose-cutorial reference to a “mugshot” alerted the jury to the fact that he had a prior criminal record. While the use of the word “mugshot,” in circumstances different from those presented here, might violate the terms of article 770(2), we are convinced that its use in the instant case did not constitute such a violation.

After carefully reviewing the record before us, we can find no instance in which the prosecutor made the slightest suggestion that defendant had been involved in criminal activities other than those that the jury was already apprised of through admissible evidence. The state did not inform the jury when defendant was arrested. Thus, when the jury was told that Robert Kranz had identified defendant from mugshots, it would have been reasonable for the jury to assume that the police photographs had been taken in connection with his prior arrest for the present charge of armed robbery. Furthermore, the jury was already well aware that defendant had been accused of committing other crimes through evidence that was admissible pursuant to La.R.S. IS :445 and La.R.S. 15:446. Article 770(2) prohibits only reference to other offenses as to which evidence is not admissible. The Official Revision Comment to the article states:

(c) This article does not prevent admission of evidence of another crime to prove systematic intent as permitted by R.S. IS :445 and IS :446. The article prohibits comments or remarks but not evidence legally admissible.

At no point did the prosecutor state that defendant had not been arrested for, or charged with, the other robberies committed upon Kenny Henderson and the beverage truck drivers. Consequently, the only other reasonable inference that the jury could draw from the word “mugshot,” other than his arrest for the present offense, was an arrest resulting from his alleged commission of the similar crimes of which they were cognizant. From the use of the word “mugshot” in this context, it would have been unreasonable for them to conjecture that defendant had been involved in criminal activities besides those they knew of through admissible evidence. Hence, the use of the word “mugshot” was not a reference to another crime as to which evidence was not admissible. La. Code Crim.P. art. 770(2) (1966). There is no merit in this bill.

DECREE '

For the reasons assigned, our original decree is vacated and set aside; and it is hereby ordered that defendant’s conviction and sentence be affirmed.

CALOGERO, J., dissents for the reasons assigned on original hearing.

CALOGERO, Justice

(dissenting).

For the reasons expressed in our opinion upon the original hearing in this case, I" respectfully dissent from the majority’s affirmance of this conviction.

      . For a discussion of that issue, see Annotation, Mug Shots — Admissibility—Prejudice, 30 A.L.R.3d 908 (1970).

      . The prosecutor’s questioning of a state witness, during which the second and third references to “mug shot” were expressed by the district attorney, was as follows:
      “Q. Were you shown mug shots of the defendant?
      A. Yes, sir.
      Q. How many of them?
      A. Six or eight. I can’t tell you exactly. Six or eight.
      Q. And, you picked the defendant out of the mug shots?
      A. Yes, sir.
      Q. Prior to any lineup?
      A. Yes, sir.”
      At this point the defense attorney asked that a mistrial be declared.

      . Webster’s New International Dictionary (3d ed. 1961) defines a “mug shot” as a “photograph of a person’s face — usu. used of official police photographs.”

      . The record reveals that the prosecutor employed the word “mugshot” on a previous occasion. In his opening statement, he said that defendant had been identified through “photographs and mugshots.” This reference to “mugshot” met with no objection from defense counsel.


source: Caselaw Access Project

author: SANDERS, C. J., and SUMMERS, J., DIXON, J.,

license: Public Domain

text:
    STATE of Louisiana v. Jessie Lee WILSON.
    No. 57485.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: State, through Ossie Brown, District Attorney applying for Remedial Writs and Stay Order.

Writ denied. We do not find that the trial judge abused his discretion in granting a mistrial in this case. La.Code Crim. P. art. 771.

SANDERS, C. J., and SUMMERS, J.,

are of the opinion the application should be granted. The witness’s response was without the scope of the State’s question. The ruling of the trial judge should be reversed and defendant’s objection should be assigned for review on appeal in the event of conviction. State v. Lepkowski, 316 So.2d 727 (La.1975).

DIXON, J.,

-is of the opinion that the trial judge was correct whether or not the prejudicial answer was sought by the prosecution. However, the prosecution asked the witness: “And would you describe the book, please, for the jury?” It is unrealistic to conclude that the “response was without the scope of the State’s question.”


author: DIXON, J.,

text:
    David LEGER v. Ella BOURQUE.
    No. 57412.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: David Leger, applying for Certio-rari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry, 322 So.2d 784, 789.

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

DIXON, J.,

is of the opinion that there is no error in the judgment of the Court of Appeal.


author: SANDERS, Chief Justice. TATE, Justice

text:
    STATE of Louisiana ex rel. Theda BERTRAND v. Elayn HUNT, Director, Dept. of Corrections, et al.
    No. 56501.
    Supreme Court of Louisiana.
    Jan. 19, 1976.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., James E. Boren, Asst. Dist. Atty., for defendant-respondent.
    Vincent Wilkins, Jr., Director, Roland T. Huson, III, Appellate Counsel, Baton Rouge, for plaintiff-relator.
   SANDERS, Chief Justice.

Relator, Theda Bertrand, applied to this Court for habeas corpus relief, complaining that her detention in St. Gabriel Prison is illegal because her parole was automatically revoked without a final revocation hearing. We granted her writ to determine whether the procedure followed by the State in revoking her parole constituted sufficient compliance with the requirements set forth by the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 475, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), La., 317 So.2d 624 (1975). We find that the State’s procedure satisfied the due process requirements and, accordingly, recall the writ.

Relator was convicted of four counts of issuing worthless checks and two counts of abortion. In 1969, the court sentenced her to serve a total of six years imprisonment on these convictions. She was paroled on June 29, 1971, and while on parole she was arrested on October 4, 1973, and charged with transporting forged travelers’ checks in violation of a federal criminal statute. On October 17, 1973, a preliminary hearing was held and probable cause was found to believe that relator had violated the condition of her parole, specifying that she refrain from criminal conduct. See also LSA-R.S. 15:574.4(H), the statutory embodiment of that condition. On January 28, 1974, relator pleaded guilty to the federal charge in the United States District Court for the Eastern District of Louisiana. The court sentenced her to six months imprisonment subject to the state court detainer on the parole revocation, and then suspended the sentence, placing her on federally supervised probation for eighteen months. On August 14, 1974, relator’s Louisiana parole was automatically revoked pursuant to LSA-R.S. 15:574.10, and she returned to St. Gabriel Prison to serve the remainder of her six-year sentence.

Defense counsel concedes that the preliminary hearing satisfied the requirements delineated for that stage of the proceedings in Morrissy v. Brewer. Therefore, the only question before us is whether, when parole has been revoked automatically because of a conviction of another offense, Morrissey nevertheless requires a second, final revocation hearing. We resolved this question adversely to the position of relator in State ex rel. (Richard) Bertrand v. Hunt, La., 308 So.2d 760 (1975). That holding controls the disposition of the present case.

Morrissey v. Brewer is easily distinguished from the case sub judice. In Morrissey, the petitioners were at liberty on parole when, at the direction of their parole officers, they were arrested for parole violations and incarcerated. The parole violations in Morrissey were not commissions of criminal offenses. Subsequently, without a hearing in any forum, petitioners’ paroles were revoked solely on the basis of their parole officers’ reports.

The United States Supreme Court found that this procedure did not meet the requirements of Due Process of the Fourteenth Amendment, and proceeded to establish minimal due process guidelines for preliminary and final hearings to determine whether a parolee has violated his parole, and if so, whether that violation warrants revocation of the parole. However, the Court recognized that “not all situations calling for procedural safeguards call for the same kind of procedure,” and declared that its goal in establishing the guidelines was to outline an

“ . . . informal hearing structured to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee’s behavior.” (Italics here and elsewhere ours.)

The Court asserted that the purpose of a final revocation hearing is to:

“ . . lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation. The parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation.”

The Court, however, stated:

“ . . . Obviously a parolee cannot relitigate issues determined against him in other forums, as in the situation presented when the revocation is based on conviction of another crime.”

In State ex rel. (Richard) Bertrand v. Hunt, supra, we interpreted the foregoing language to dispense with the requirement of a second hearing when the parole violation consists of an out-of-state conviction for a criminal offense.

In the present case, since the conviction was in Louisiana, the statute itself serves to buttress our decision that the requirements of due process have been satisfied. Relator has had an opportunity to be heard in “another forum,” the federal court, in which the procedural safeguards are much more stringent than in an informal revocation hearing. Relator’s guilty plea obviates any factual issue.

LSA-R.S. 15:574.10 provides:

“When a person is convicted in this state of a felony committed while on parole, his parole shall be deemed revoked as of the date of the commission of the felony. ...”

Under the statute, the conviction itself is conclusive that relator committed acts that per se constitute a violation of parole. The mandatory language precludes the exercise of discretion on the part of the parole board. Hence, in the present case, a second revocation hearing would serve no useful purpose.

We hold, as did the trial judge, that in the procedures followed, relator was denied no constitutional rights.

For the reasons assigned, the judgment of the district court is affirmed and the writ is recalled.

TATE, J., dissents and assigns written reasons.

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

TATE, Justice

(dissenting).

I respectfully dissent.

No disastrous consequences will ensue because the petitioner is denied a parole revocation hearing to which she is constitutionally entitled but to which (probably) she has no defense. (Nor will disastrous consequences ensue if, before her parole is finally revoked, she is given the hearing to which she is constitutionally entitled — to show, for instance, that the convictions were of another person of the same name.)

The majority frankly realizes that Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) requires (a) not only a minimal due process preliminary hearing when the parolee is initially detained, but (b) also an opportunity for a hearing prior to the final decision of revocation by the parole authority. 92 S.Ct. 2602-03. The minimal due process requirements of this latter limited inquiry include notice of the claimed parole violations and an opportunity to be heard in person or to present witnesses before a neutral hearing agency, such as the parole board. 93 S.Ct. 2604.

In the present case, the majority holds that the conviction itself is sufficient to satisfy this last requirement of a hearing before final revocation. It points out that no useful purpose will be served by a revocation hearing because the conviction itself resulted in automatic revocation under La. R.S. 15:574.10, without available defense. If I read Morrissey right, due process nevertheless requires the opportunity for a hearing that in fact the circumstance (conviction of another offense) did occur that now results in revocation of probation.

Such a hearing, independent of the conviction itself, was in fact afforded in State ex rel. (Richard) Bertrand v. Hunt, 308 So.2d 760 (La.1975). The majority correctly notes, however, that this was in the nature of a preliminary hearing to decide whether a Louisiana detainer against the relator, therein a Texas prison, should be removed. Nevertheless, at the present preliminary hearing, the convictions upon which the revocation is here based were not at issue. There has thus been no hearing at all on the present cause of revocation, unlike in the cited decision.

Our statute permitting automatic revocation of a parole without a hearing, La.R.S. 15:574.10, thus violates the minimal due process hearing required by Morrissey v. Brewer. The United States Supreme Court’s interpretation of the federal constitution is binding upon this court.

The primary purpose of this dissent is to alert the administrative agency to the serious constitutional issue as to the requirement of a revocation hearing under present circumstances.

Initially, I must confess that the result of the majority appeared practical to me. It would avoid administrative hearings which, for the most part, would be pro for-ma presentation of certified copies of convictions, without the parolee having any real defense of which he is deprived by no hearing. In the rare case of administrative error — mistaken identity, incorrect records — , the postconviction remedy in the courts could afford relief.

Upon reflection, however, I now incline to the view that affording an opportunity for an administrative hearing before final revocation might be practically advisable, as well as constitutionally required.

The minimal due process showing and defense required for this limited inquiry does not appear to constitute any heavy burden, when (and if) a parolee, avails himself of an opportunity for a hearing, if afforded. On the other hand, where in fact there may be a defense (such as mistaken identity of records), the most efficient forum to test this should be the initial administrative board.

If no such administrative remedy is provided, resort to cumbersome and dilatory postconviction judicial proceedings is required, with dissipation of the efforts of the already overburdened judicial machinery required to correct an administrative error that preferably and more quickly and efficiently could have been corrected by administrative proceedings.

For these reasons, I respectfully dissent.


author: TATE, J.,

text:
    Robert B. REED et al. v. CLASSIFIED PARKING SYSTEM et al.
    No. 57483.
    Supreme Court of Louisiana.
    Feb. 13, 1976.
   In re: Robert B. Reed, Rutledge H. Deas, Jr. and Shreve Park, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo, 324 So.2d 484.

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

TATE, J.,

concurs in the denial, solely because of the factual finding that the plaintiffs did not prove any loss resulting from the defendant’s breach of the lease.

CALOGERO, J., dissents from denial of the writ.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Robert POWELL.
    No. 56782.
    Supreme Court of Louisiana.
    Jan. 19, 1976.

      Bernette Joshua Johnson, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged Robert Powell by bill of information with having committed armed robbery in violation of LSA-R.S. 14:64. After trial, the jury found the defendant guilty as charged. The court sentenced the defendant to imprisonment for sixty-six years, without benefit of parole. He appeals his conviction and sentence, relying 0'n seven assignments of error.

At about 11:30 p. m., on June 12, 1970, a New Orleans Public Service bus driver was robbed at gunpoint while his bus was making a stop at St. Maurice and North Galvez Streets in New Orleans. Six days after the robbery, a child found the stolen money changer in a vacant lot across the street from defendant’s house. An eyewitness to the crime subsequently identified defendant as the perpetrator, and defendant was taken to police headquarters, where he confessed.

ASSIGNMENTS OF ERROR NOS. 1, 4, AND 6

Defendant consolidated these three assignments of error relating to the admission of evidence at trial that the bus driver was shot and killed during the robbery. Assignments of Error Nos. 1 and 4 deal with testimony (“to see if he was dead” and “laying on the floor dying”), while Assignment of Error No. 6 relates to the admission into evidence of photographs showing the victim’s body at the scene of the crime. As we stated in State v. Matthews, La., 292 So.2d 226 (1974):

“The record is clear that the robbery and . . . shooting were part of a single, continuous transaction, integrated in both space and time. For all practical purposes, it would have been impossible to segregate a part of the transaction without destroying the continuity and coherence of the evidence. Under these circumstances, both testimony and photographs proving the entire transaction were admissible. LSA-R.S. 15:448; State v. Leichman, La., 286 So.2d 649 (1973); State v. Jefferson, La., 284 So.2d 882 (1973); State v. Frazier, La., 283 So.2d 261 (1973); State v. Sears, 220 La. 103, 55 So.2d 881 (1951).”

These assignments of error lack merit.

ASSIGNMENTS OF ERROR NOS. 7 AND 10

Assignments of Error Nos. 7 and 10 relate to the introduction of defendant’s confession. Defendant reserved Assignment of Error No. 7 when the court overruled his motion to suppress the confession. The motion was filed and heard in the murder case involving the defendant but was re-urged and again overruled in the instant case. The evidence adduced at the hearing on the motion to suppress is not contained in the record on appeal. However, the evidence relating to the taking of the confession was introduced at the trial as a basis for the jury to determine the weight to be given the statement. See LSA-C. Cr.P. Art. 703.

The basis of defendant’s objection to the admissibility of the confession at trial was that the confession was not voluntary. In brief, defendant asserts that the confession was inadmissible because it was tainted by the defendant’s illegal arrest. Since this objection was not raised in the lower court or ruled upon by the trial judge, it will not be considered on appeal. See LSA-C. Cr.P. Art. 841; State v. Burgy, La., 320 So.2d 175 (1975); State v. Preece, 264 La. 156, 270 So.2d 850 (1972).

To determine whether the confession was freely and voluntarily given, it is necessary to glean the pertinent facts from the lengthy predicate laid by the State for the admission of the confession in the instant case. Defendant was intermittently questioned from 3 p. m. until approximately 10 p. m., when he confessed. He was then arrested and taken to the assistant coroner, where he was examined to determine if he had been physically abused. There is no evidence of physical force, intimidation, threats, or pressure of any sort being used to elicit defendant’s confession. The officers present when the defendant confessed testified that the defendant confessed his crime freely and voluntarily. Dr. Waldo Bernard, the assistant coroner who examined the defendant, testified that there was no evidence of any injury and that the defendant did not complain of discomfort or assert that he had been abused.

Based upon that evidence, the trial court correctly ruled that the confession was freely and voluntarily given and thus could be admitted into evidence.

Assignment of Error No. 7 is without merit.

Assignment of Error No. 10 was reserved to the trial court’s ruling granting the State’s request that the written confession be read to the jury. The record, however, reflects the confession was never actually read to the jury. It appears that the State instead submitted only a xeroxed copy of the confession to the jury for its examination.

Assuming, however, that the confession was actually read, there is no error in reading a confession to the jury if the confession itself is admitted into evidence. The assignment of error is, therefore, without merit.

ASSIGNMENT OF ERROR NO. 9

Defendant objected to the introduction into evidence of two “Rights of Ar-restee” forms, S-24 and S-25. The trial court overruled defendant’s objection, and he reserved Assignment of Error No. 9 to the court’s ruling. At the time of his objection, defendant gave no reason or ground for his objection to the introduction of the evidence. It is well settled that counsel must state the basis for his objection when making it and point out the specific error which the trial court is making. An assignment of error reserved to a trial court ruling where there is no basis for objection stated and no specific error pointed out presents nothing for the review of this Court. State v. Andrus, 250 La. 765, 199 So.2d 867 (1967); State v. Marcell, 248 La. 1019, 183 So.2d 341 (1966); State v. Foss, 158 La. 471, 104 So. 211 (1925).

Assignment of Error No. 9 is without merit.

ASSIGNMENT OF ERROR NO. 12

Defendant reserved Assignment of Error No. 12 when the trial court overruled his relevancy objection to the introduction into evidence of S-4, a brown envelope bag. In brief, defendant asserts that the evidence is inadmissible because it was obtained as a result of an illegal arrest under the “fruit of the poisonous tree” doctrine. This objection was not raised in the trial court and will not be considered on appeal. See LSA-C.Cr.P. Art. 841; State v. Burgy, supra; and State v. Preece, supra.

Defendant contended at trial that the brown envelope was irrelevant. S-4 is an “hour bag” which the bus drivers carry. It was allegedly taken from the bus driver during the robbery. The police found the bag in a shallow hole in the defendant’s front yard. It was discovered by the police in the presence of the defendant, his grandmother, and another woman.

In our opinion, the evidence was relevant to the State’s case and the trial court correctly overruled the defendant’s objection.

Assignment of Error No. 12 is without merit.

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

DIXON, J., concurs.


text:
    Valliet DUHON v. Richard G. SALOOM and Michael E. Boustany.
    No. 57401.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re Anna Mae Bower Duhon applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette, 323 So.2d 202.

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

DIXON, J.,

is of the opinion the Court of Appeal has misinterpreted Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 and the factual issue on the plea of prescription should have been submitted to the jury.

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

DENNIS, J., is of the view that writ should be granted.


author: TATE, Justice. SUMMERS, Justice

text:
    Leon VEAL, on his own behalf and as the administrator of the estate of his minor children, Helen Elizabeth Veal, et al., Plaintiff-Appellant-Relator, v. INTERSTATE FIRE AND CASUALTY COMPANY, Defendant-Appellee-Respondent.
    No. 56176.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Dissenting Opinion Jan. 27, 1976.
    Jerome Friedman, Metairie, for plaintiff-applicant.
    A. W. Wambsgans, Richard M. Michal-czyk, Cronvich & Wambsgans, Metairie, for defendant-respondent.
   TATE, Justice.

The plaintiff Veal sues to recover damages caused through the negligence of an uninsured motorist. Made defendant is Veal’s own automobile liability insurer (“Interstate”). The court of appeal affirmed the trial court’s summary judgment dismissing the suit. 308 So.2d 345 (La.App. 4th Cir. 1975).

The issue in this case concerns an interpretation of a statute, La.R.S. 22:1406(D) (1). This requires automobile liability policies issued for delivery in this state to contain uninsured motorist coverage unless the policyholder expressly waives it.

(1)

The particular issue before us is whether this mandatory requirement of law applies to policies issued by “unauthorized” insurers, such as Interstate. It concededly does apply to insurers authorized to transact business in this state subject to this state’s rate-making regulation. La.R.S. 22:981-87, 1401-03, 1406.

Interstate is a foreign insurer not so authorized to transact rate-regulated business in this state. The policy issued by it was procured through “surplus-line” brokers, in accordance with Louisiana law, from a foreign insurer not so authorized and regulated. La.R.S. 22:1257-62. As we will note more particularly below, the latter type of policies may not be sold or delivered in Louisiana unless the foreign insurer has made certain filings with the Louisiana commissioner of insurance. La.R.S. 22:1262(B) (1966).

In the instant case, the previous courts found that Interstate’s policy issued to Veal was not required to provide uninsured motorist coverage, because issued by an “unauthorized” insurer. As earlier noted, the courts therefore dismissed Veal’s suit for recovery under the alleged uninsured-motorist coverage provided as a matter of law (in the absence of express waiver) by all liability policies delivered or issued for delivery in this state. La.R.S. 22:1406(D).

We granted certiorari. 313 So.2d 246 (1975), because we entertained doubt as to the correctness of this holding, taking into consideration also 1970 legislation to be discussed below.

(2)

Since 1962, Louisiana statute has manda-torily provided that, unless the policyholder has expressly rejected the coverage, "no automobile liability insurance” “shall be delivered or issued for delivery” in Louisiana unless it provides uninsured motorist coverage in not less than certain limits. La. R.S. 22:1406(D)(1) (originally enacted by Act 187 of 1962),

We have held that the statute represents the public policy of this state as declared by the legislature, and that it cannot be circumvented by policy provisions which lessen the mandatory minimum coverage against fault of uninsured motorists. Dean v. McGee, 261 La. 686, 260 So.2d 669 (1972); Graham v. American Casualty Company, 261 La. 85, 259 So.2d (1972). See also Barbin v. United States Fidelity and Guaranty Company, 315 So.2d 754 (La.1975).

The present policy was issued in Louisiana by a Louisiana-licensed broker for surplus line insurance. Interstate has never applied for and been authorized to transact business in Louisiana subject to this state’s rate-making regulation, although it has made the filings in Louisiana required by this state statute.

Thus, as authorized by Louisiana statute, the present policy was procured through a Louisiana-licensed surplus line broker from a foreign insurer and issued in Louisiana to cover risks of a Louisiana policyholder and a Louisiana-based vehicle. La.R.S. 22:1257. The policy is endorsed (as required by statute, La.R.S. 22:1258) as being registered and delivered as surplus line coverage under the insurance code of Louisiana.

By the policy itself (Condition 25), Interstate has agreed; “Terms of this policy which are in conflict with the statutes of the State wherein this policy is issued are hereby amended to conform to such statutes.”

No Louisiana-licensed surplus line broker can lawfully insure with any “unauthorized” insurer (such as the present) unless that insurer has made certain filings with the Louisiana commissioner of insurance. La.R.S. 22:1262B (as enacted by Act 175 of 1966; see also amendment by Act 239 of 1972). The record in this case includes a certificate by the Commissioner of Insurance that Interstate has met these statutory requirements and “is an eligible carrier for placement of surplus line coverage on Louisiana risks.”

(3)

Despite the express legislative mandate of La.R.S. 22:1406 (quoted in Footnote 1) that no automobile liability policy shall be issued in Louisiana which does not contain uninsured motorist coverage, the previous courts in this case have held that Interstate’s policy was exempt from this statutory requirement. (If not exempt, it is not disputed that Interstate’s policy must be reformed as of the date of issuance to include such legislatively-mandated coverage. La.R.S. 22:620, 623, 1258, 1259. Moreover, by the policy in the instant case, the insurer Interstate expressly agreed that provisions of its policy in conflict with any Louisiana statute should be amended to conform to such statute. Webb v. Zurich Insurance Co., 251 La. 558, 205 So.2d 398, 408 (1967).)

In holding Interstate’s policy exempt from the requirement (in absence of waiver) of providing uninsured motorist coverage, the previous courts relied upon Barrett v. State Farm Mutual Automobile Insurance Company, 226 So.2d 74 (La.App. 3d Cir. 1969). This 1969 decision affirmed the dismissal of the action as against a surplus line insurer (Midwest) under circumstances similar to the present. The court there relied upon the placement of the requirement within the Louisiana Insurance Code, La.R.S. 22:1 et seq.

By the 1962 amendment, the requirement of uninsured-motorist coverage (La.R.S. 22:1406D) had been placed with Part XXX of the Code, La.R.S. 22:1401-46. This part primarily relates to the rate-making functions of the Louisiana Insurance Rating Commission and its divisions, including the Casualty and Surety Insurance Division.

In effect, Barrett held that, despite the legislative language that Section 1406(D) mandatorily applied to all automobile liability policies issued or delivered in this state, the court could ascribe no legislative intent for the provision to apply to policies issued by surplus line (“unauthorized”) insurers because the enactment was found in a division of the code which (except for the section) related wholly to rate-making regulation of “authorized” insurers.

(4)

This was a doubtful interpretation at best, and one (so far as we can ascertain) never reviewed by this court nor followed by any other decision until the instant case. By its terms, the legislative provision did not refer to rate-making functions of the Commission. Its unambiguous language could properly be held to apply to any automobile liability policy issued or delivered in Louisiana, whether by an “authorized” insurer or (as here) by a surplus-line insurer acting through a Louisiana-licensed broker and expressly by its own terms subject to Louisiana law.

Nevertheless, whatever the merits of this 1969 ruling’s narrowing of the apparent legislative intent of Section 1406 — based on the ifeew-absence of any reference in Insurance Code Part XXX to surplus-line insurers — , in the very next session of the legislature Section 1406(D) was amended so as to additionally provide: “Each non-admitted company (surplus line underwriter) shall file with the Casualty and Surety Division in accordance with the regulations of the casualty- and surety division a copy of each automobile liability policy written by said company.” La.R.S. 22:1406(D) (7) (as added by Act 345 of 1970).

At the least, the 1970 amendment makes doubtful any previous judicial assumption that the legislature did not intend Section 1406 to apply to policies issued by surplus-line insurers. This prior assumption was based solely upon the statutory section’s placement within a division of the insurance code which contained no reference to surplus-line insurers and which primarily relates to insurance regulatory agencies with no function with regard to such insurers.

However, by the 1970 amendment, surplus line insurers were subjected to some non-rate-making supervision by, the Louisiana regulatory agency. The amendment erodes the basis for the somewhat tenuous finding of no legislative intent to apply to policies issued by surplus line insurers.

We prefer to rest our holding, however, upon the broad and unambiguous language of Section 1406(D). It expressly provides that all policies issued for delivery in Louisiana must afford uninsured-motorist coverage (unless such is waived). We can find no intent to exempt from this requirement policies issued through Louisiana-licensed brokers for coverage of Louisiana-based automobiles and Louisiana policyholders.

Decree

Accordingly, we reverse the summary judgments of the district court and of the court of appeal which dismissed this claim against the defendant insurer. We remand this case to the district court for further proceedings consistent with the views here expressed. All costs of appellate review are assessed against the defendant insurer.

Reversed and remanded.

Summers, J., dissents and will assign reasons.

SUMMERS, Justice

(dissenting).

Certiorari was granted to decide whether a surplus line insurance policy procured by a Louisiana licensed surplus line broker from an unauthorized foreign insurer providing automobile liability coverage to a Louisiana resident is exempt from the provisions of Section 1406D(1)(a) of Title 22 of the Louisiana Insurance Code. This section requires that no automobile liability insurance policy may be “delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein” for uninsured motorist coverage, unless such coverage has been rejected by the insured. 313 So.2d 246.

The pertinent facts are not in dispute. Plaintiffs are the surviving spouse and children of Alta Gwins Veal, who sustained fatal injuries on December 26, 1971 while a passenger in the Veal family car. Her son Leon Veal, Jr., was driving at the time. He also sustained personal injuries. The Veal automobile was struck from the rear on Airline Highway in Jefferson Parish by an automobile owned and operated by Frederick D. Jordan, an uninsured motorist.

When Veal sued his insurer, Interstate Fire & Casualty Company, the company sought and obtained a summary judgment dismissing his suit. On appeal to the Fourth Circuit, the judgment was affirmed. 308 So.2d 345. Both courts relied upon the authority of the decision of the Third Circuit in Barrett v. State Farm Mutual Automobile Ins. Co., 226 So.2d 74 (La.App.1969), which held that Section 1406D(1)(a) does not apply to an unauthorized insurer.

The theory upon which the decision in the Barrett Case rests is that Louisiana’s insurance code does not regulate the provisions of policies issued by unauthorized insurers. Only the brokers licensed by this state to write insurance with unauthorized companies are regulated. These regulations, contained in Part XXVII of the Insurance Code, entitled “Unauthorized Insurance” recognize that they are inapplicable to an insurer not doing business in the State. They are principally concerned with the licensing of surplus line brokers, the records they are required to maintain, the tax they must remit to the Commissioner of Insurance, the penalty for failure, suspension or revocation of their license, provision for venue of suits against unauthorized insurers, and the inapplicability of the regulations controlling the placing of insurance with unauthorized insurers to certain specified insurance. Thus, the broker is regulated to some extent in the placing of insurance with unauthorized insurers, but the unauthorized insurer is not regulated.

The Court’s conclusion in the Barrett Case was arrived at for the reason that Section 1406D(l)(a), requiring that uninsured motorist coverage be included in all automobile liability policies issued in Louisiana, is contained in Part XXX of the Insurance Code, entitled “Louisiana Insurance Rating Commission and Rate Regulation.” It was reasoned in the Barrett Case and in the opinion of the Fourth Circuit under review that this Part of the Insurance Code purports to regulate rates in policies issued by authorized insurers, and makes no reference to the regulation of rates in policies issued by unauthorized insurers. La.R.S. 22:1401 — 46. I agree.

Part XXVII of the Insurance Code, which pertains to unauthorized insurance, purports to regulate the activities of domestic insurers doing business outside the State of Louisiana in states in which they are unauthorized. La.R.S. 22:1251. Louisiana insurance agents are prohibited from acting as agents for any insurer not authorized to do business in this state. La.R.S. 22:1252. The use of the courts of this State are prohibited to unauthorized insurers. La.R.S. 22:1254. Surplus line insurance is authorized to be issued by unauthorized insurers. La.R.S. 22:1257. However, every insurance contract procured and delivered as a surplus line coverage must be stamped by the surplus line broker who obtained it with the following:

“This insurance policy is delivered as a surplus line coverage under the insurance code of Louisiana.
“This contract of insurance is not issued by a company authorized to do business in Louisiana. In-the event of insolvency of the company issuing this contract, the policyholder or claimant is not covered by the Louisiana Insurance Guaranty Association which guarantees only specific policies issued by a company authorized to do business in Louisiana.”

Brokers maintaining an office at a designated location in this state may be licensed as surplus line brokers. La.R.S. 22:1260. Licensed brokers are authorized to accept and place surplus line insurance for insurance agents or brokers licensed in this state for the kind of insurance involved. La.R.S. 22:1261. Surplus line brokers shall not knowingly place surplus line insurance with insurers unsound financially, La.R.S. 22:1262; and they are required to maintain records of surplus line contracts showing, among other things, the terms of those contracts. La.R.S. 22:-1263. These brokers are taxed on the surplus line insurance they procure. La.R.S. 12:1265.

The scope of Part XXX is declared to be applicable to “risks or operations in this state.” La.R.S. 22:1403A. Reference is made in Section 1406A of that part to the insurance companies authorized to write casualty insurance. Thereafter the uninsured motorist provisions already quoted appear in Section 1406D(1). Section 1407 refers to “Every insurer whose rates are subject to regulation under the provisions of this Part,” and then provides the procedure for rate filings. An expense fund is required of all “insurers doing business in this state” for the Insurance Rating Commission, and the expense is to be met by an annual assessment “on each insurer subject to this part.” La.R.S. 22:1419.

Section 1420 sets forth that “No insurer shall make or issue a contract or policy after July 27, 1960, except in accordance with this Part . . ..” A mandatory program to assure an adequate market for fire and extended coverage insurance in the coastal areas of Louisiana is made obligatory on “every licensed insurer” writing fire and extended coverage in Louisiana by Section 1431. Again, Section 1433 refers to “all insurers authorized to write” property insurance within this state and makes membership in the Louisiana Insurance Underwriters Association a condition of the “authority” of insurers “to continue to transact the business of insurance in this state.”

It is evident from this partial reference to its provisions and a careful reading of Parts XXVII and XXX that the Legislature only intended to regulate insurers authorized to do business in the state. In Gray & Company v. Stiles, 221 So.2d 832 (La.App.1969) the First Circuit recognized that unauthorized insurers issuing surplus line policies in Louisiana through agents were not regulated except through brokers, saying “Such companies are not subject to any further regulation by the Insurance Commissioner, except that he can forbid surplus line brokers to place insurance with companies which do not meet the requirements of the law.”

The business of insurance has always been considered a matter of public concern. It was the settled jurisprudence in this country, therefore, that legislatures were undoubtedly vested with ample power, authority and wide discretion to regulate insurance companies. Hammett v. Fire Association of Philadelphia, 181 La. 694, 160 So. 302 (1935). The principal standard recognized by the decisions was .that the regulation be reasonable. Keystone Mutual Casualty Co. of Pittsburgh, Pa. v. Hinds, 180 Md. 676, 26 A.2d 761 (1942).

These principles were established in the cases based upon the legal fiction that the business of insurance was neither interstate nor commerce preventing regulation by the states. The interstate character of a contract of insurance made by a resident of one state with a corporation of another state did not establish immunity from control of the state in which the insured resided and in which the corporation did business. National Union Fire Ins. Co. v. Wanberg, 260 U.S. 71, 43 S.Ct. 32, 67 L.Ed. 136 (1922); Paul v. Virginia, 8 Wall. 168, 19 L.Ed. 357 (U.S.1868); Bothmell v. Buckbee Mears Co., 275 U.S. 274, 48 S.Ct. 184, 72 L.Ed. 277 (1927); New York Life Ins. Co. v. Cravens, 178 U.S. 389, 20 S.Ct. 962, 44 L.Ed. 1116 (1900); 19 Appleman, Insurance Law and Practice, § 10321-22.

In 1944, after more than 75 years of adherence to this fiction, the Supreme Court of the United States tore aside the veil of judicial precedent, and held the business of insurance to be within the scope of interstate commerce. United States v. SouthEastern Underwriters Association, 322 U. S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944); Appleman, supra.

After the holding that insurance was interstate commerce, Congress passed the McCarran Act, 15 U.S.C.A. #1011 et seq., leaving regulation of insurance to the states. In enacting the Act Congress intended to give support to existing and future state systems for regulating and taxing the business of insurance, but it did not intend to validate unconstitutional provisions of state laws. Securities and Exchange Comm. v. National Securities, Inc., 393 U.S. 453, 89 S.Ct. 564, 21 L.Ed.2d 668 (1969). The Act is applicable to out-of-state insurers only where they are transacting insurance business within the state. Johnson v. Universal Underwriters, Inc., 283 F.2d 316 (7th Cir. 1960).

Thus, a state cannot constitutionally prescribe the terms, or control the construction and effect, of contracts made and to be performed beyond the borders of the state, since a state statute restricting the rights of, or imposing a tax upon, a citizen placing insurance upon local property with a foreign insurance company, under contracts made and to be performed outside the enacting state, deprives such citizen of liberty of contract without due process of law within the meaning of the Fourteenth Amendment to the Federal Constitution. New York Life Ins. Co. v. Head, 234 U.S. 149, 34 S.Ct. 879, 58 L.Ed. 1259 (1914) and New York Life Ins. Co. v. Dodge, 246 U. S. 357, 38 S.Ct. 337, 62 L.Ed. 125 (1918).

Undoubtedly Louisiana’s Legislature was influenced by these principles in the enactment of its insurance code and deliberately refrained from imposing its regulations upon unauthorized insurers on the theory that a statute which purports to do so would be invalid. Provident S. L. Assur. Soc. v. Kentucky, 239 U.S. 103, 36 S.Ct. 34, 60 L.Ed. 167 (1915); Allgeyer v. Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832 (1897). To sustain statutes which purport to extend the state’s authority to regulate so as to give it extraterritorial effect would deprive citizens of' their right to make such contracts as they choose beyond the boundaries of their state. 2 Couch, Cyclopedia of Insurance Law § 21.80.

It is upon this theory that the imposition of the uninsured motorist coverage upon insurance companies authorized to do business within the state can have no effect upon a policy issued by an unauthorized insurer outside the state, even though the insured may be a resident of the state. Cf. Rybasack v. Travelers Ins. Co., 15 N.J. Misc. 266, 190 A. 308 (1937).

Nothing in this result contradicts what this Court said in Graham v. American Casualty Company, 261 La. 85, 259 So.2d 22 (1972) and in Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972). In these cases the Court recognized that the uninsured motorist statute requiring uninsured motorist protection was a declaration of the public policy of the state. This policy, however, is one which is imposed upon authorized insurers as the context of the Graham and Deane Cases makes clear. The cases did not purport to extend the State’s public policy extraterritorially and make it obligatory upon unauthorized insurers who were not engaged in business within the state, whose policies were written and issued outside the state, and who, when paid, would be paid outside the state. The policy in this case was procured by the broker on behalf of the insured from the unauthorized insurer outside the state and was not solicited or issued by the unauthorized insurer within the state. The unauthorized insurer was not, therefore, transacting business in Louisiana.

Another factor supporting freedom from regulation of the unauthorized, surplus lines insurers is the fact that the insurance coverage they afford an insured is high-risk coverage he cannot obtain elsewhere. La.R.S. 22:1257.

Plaintiff contends that the Legislature has manifested its intention to regulate unauthorized insurers by enacting Act 345 of 1970 as paragraph (7) of Section 1406(D) of Title 22, and incorporating its provisions within Part XXX of the Insurance Code entitled “Louisiana Insurance Rating Commission and Rate Regulation” which regulates authorized insurers. Paragraph (7) of Section 1406D provides that “Each nonadmitted company (surplus line underwriter) shall file with the Casualty and Surety Division in accordance with the regulations of the casualty and surety division a copy of each automobile liability policy written by said company.”

Paragraph (7) simply requires that copies of policies issued by unauthorized surplus line insurers be filed with the casualty and surety division. It is not a regulation affecting the terms and conditions of coverage of the policy negotiated by the insured outside the state. Nor, particularly, does it require that policies procured from unauthorized insurers contain the uninsured motorist coverage. No infringement of constitutional dimensions upon the rights of the parties freely to contract is involved in this minor regulation imposing a filing requirement upon the unauthorized insurer. Its object is not to reverse the entire theme of the regulations pertaining to authorized insurers and to make these regulations applicable to unauthorized insurers. Its object is, apparently, to provide interested parties contemplating asserting claims or instituting suit against the unauthorized insurer with information regarding the coverage of the policy.

For the reasons assigned, I respectfully dissent.

      . La.R.S. 22 :1406(D) (1) (1962) provided:
      “No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits described in the Motor Vehicle Safety Responsibility Law of Louisiana, under provisions filed with and approved by the Commissioner of Insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage.”
      A series of subsequent enactments has broadened the right of policyholders to this type of mandatory coverage, unless waived by the policyholder: Acts 137 and 550 of 1972; Act 154 of 1974.
      As both of the previous courts held, a substantial issue of fact as to the policyholder’s alleged waiver of the coverage precludes summary judgment on this factual issue.

      . i. e., unless waived by the policyholder, which under the present summary-judgment showing was not done.

      . The court concluded : “There are no provisions for the regulation of rates of unauthorized insurers.' Since Midwest is an unauthorized insurer, it is not subject to these rate regulations and is not required to contain uninsured motorist coverage in its automobile liability policies.” 226 So.2d 75-76.

      . R.S. 22:1406.
      “D. (1) [a] No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this subsection shall not be applicable where any insured named in the policy shall reject the coverage or selects lower limits . ”


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Samuel Thomas CLARK.
    No. 56900.
    Supreme Court of Louisiana.
    Jan. 19, 1976.

      Jerry L. Finley, 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.
   MARCUS, Justice.

Samuel Thomas Clark was charged by bill of information with attempted aggravated escape in violation of La.R.S. 14:27 and La.R.S. 14:110, subd. B. After trial by jury, he was found guilty and was subsequently sentenced to three years at hard labor. On appeal, defendant relies on ten assignments of error for reversal of his conviction and sentence.

FACTS

On December 29, 1974, between seven-thirty and eight o’clock at night, Samuel T. Clark, Allen Ross, Earl Harris, Dwight I. Roberts, Jr., and Frank L. Kilson, all inmates of the Ouachita parish jail, attempted an escape. All but Harris had hidden in the shower during lockdown that night, and, after overpowering Curtis W. Martin, the deputy on duty, they bound and gagged him and threatened to kill him. He was left in an area adjacent to the individual cells in the cell block. Thereafter, defendant unlocked the door and let Harris out of his cell. Martin managed to push himself to the cell of an inmate who then untied him. First a trustee and then Martin were able to thwart the escape by pulling a switch that cut off the power and prevented the elevator from functioning. Realizing that the escape was impossible, the inmates returned to their cells and were locked therein by inmate Roberts. It was at this time that the other deputies arrived to assist Martin. Three of the inmates, Samuel T. Clark, Dwight I. Roberts, Jr., and Frank L. Kilson, were jointly charged and tried on the charge of attempted aggravated escape. At trial, Clark took the stand and stated that any participation by him in this escape was due to threats from Allen Ross. The jury returned a verdict of guilty as to all three defendants. Clark has appealed.

ASSIGNMENT OF ERROR NO. 1

Defendant contends for the first time on appeal that the district court erred when it permitted defendant to be jointly tried with Frank Kilson. He argues that justice required a severance and asserts several grounds therefor.

Article 704 of the Code of Criminal Procedure provides:

Jointly indicted defendants shall be tried jointly unless:
(1) The state elects to try them separately ; or
(2) The court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance.

(Emphasis added.)

In State v. Tytus, 256 La. 962, 240 So.2d 723 (1970), defendant raised for the first time a ground for severance in his motion for a new trial following his conviction. We stated therein:

We prefer, however, to rest our ruling upon the defendant’s waiver of any right he might have had to severance by his going to trial without objection to the joinder. See 23 C.J.S. Criminal Law § 939.
Tytus and his codefendant were charged jointly with attempted murder by an information filed by the district attorney. Jointly charged defendants are tried jointly unless (a) the state elects otherwise or (b) the court sustains a motion for severance by a defendant. La.Code Crim.P. Art. 704.
Tytus did not move for severance prior to trial; nor did he make any objection to the joinder until after his conviction. An accused may not complain after his conviction of an error or irregularity in the proceedings unless he objects to it at the time of its occurrence and reserves at the time a bill of exception to an adverse ruling of the court. La.Code Crim.P. Art. 841.
Under these circumstances, the defendant Tytus’s failure to move for a severance or to object to the joinder before trial operates as a waiver of his right to complain of it after his conviction.

Here, defendant did not file a motion for severance prior to trial nor did he object to the joinder until after conviction and on appeal. Clearly, defendant has waived his right to complain. Thus, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial court erred in sustaining the state’s objection to a question propounded to a prospective juror concerning whether the fact that defendant had served and been wounded in Vietnam would cause the juror to be more likely to find him guilty or not to believe his testimony. Defendant argues that this question would have enábled him to discover whether or not the juror was prejudiced against him.

Under article 786 of the Code of Criminal Procedure, the scope of voir dire examination shall be within the sound discretion of the trial court. In absence of a clear abuse of that discretion, this court will not disturb the ruling on appeal.

Parties have a right to question jurors on their examination not only for the purpose of showing grounds for a challenge for cause, but also, within reasonable limits, to elicit such facts as will enable them intelligently to exercise their right of peremptory challenge. State v. Jones, 282 So.2d 422 (La.1973). However, this does not permit an unlimited inquiry into all possible prejudices of prospective jurors. In Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), the United States Supreme Court held that the trial judge’s refusal to inquire as to the particular prejudice of prospective jurors against people with beards, where the accused wore a beard, did not violate defendant’s constitutional rights. Similarly, in the instant case, the curtailment of inquiry into the possible prejudice against the fact that defendant served and was wounded in Vietnam does not reach the level of a constitutional violation. Furthermore, no prejudice could have resulted from the curtailment of this inquiry. Military service in Vietnam was not in any way material or relevant to the case, nor was there any evidence that defendant served or was wounded in Vietnam, The only evidence concerning defendant’s service record was the fact that he was in the service and stationed at Fort Hood, Texas, and, at the time of his incarceration in the Ouachita parish jail, had a detainer lodged against him by the United States Army. We do not find that the trial judge abused his discretion in refusing to permit this particular inquiry. Hence, there is no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 3

Another inquiry which was denied during voir dire examination of a prospective juror is the subject of this assignment of error. Defendant contends that he was seeking to ascertain whether the prospective juror would follow an instruction of the judge on the defense of justification. The question sought to be asked was:

All right. Now if the Court should instruct you that when any crime, except murder, is committed through the compulsion of threats by another of death or great bodily harm and the offender reasonably believes the person making the threats if the crime were not committed, that this is — if he should instruct you that this'is a defense and the evidence would show this would you then find the defendant not guilty?

The trial judge sustained the state’s objection to this question on the ground that it was an attempt to get the juror to commit himself in advance of hearing the evidence. The trial judge informed defense counsel at the time that he would permit him to ask the juror if he would accept the law as given to him by the court.

Admittedly, a juror may be challenged for cause if he will not accept the law as given him by the court. La.Code Crim.P. art. 797(4). However,' the question here goes far beyond such an inquiry. Rather, it attempts to obtain a pre-judgment of the case based on a possible law instruction of the court and on facts which might be adduced at trial. Such an inquiry is not permitted on voir dire examination.

Voir dire examination is designed to test the competency and impartiality of prospective jurors and may not serve to pry into their opinions concerning evidence to be offered at trial. State v. Square, 257 La. 743, 244 So.2d 200 (1971). In State v. Smith, 216 La. 1041, 45 So.2d 617 (1950), we stated:

. . . Moreover, hypothetical questions and questions of law are not permitted in the examination of jurors which call for a pre-judgment of any supposed case on the facts. 50 C.J.S. Juries, § 275, p. 1042; State v. Henry, 197 La. 999, 3 So.2d 104; State v. Thornhill, 188 La. 762, 178 So. 343. See also 31 Am.Juris., page 670, para. 154; State v. Plummer, 153 La. 730, 96 So. 548 and State v. Scott, 198 La. 162, 3 So.2d 545.

State v. Corbin, 285 So.2d 234 (La.1973); State v. Square, supra. Hence, there is no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 4

Defendant moved for a mistrial claiming that the jurors saw him in handcuffs during a recess of the trial. He argues that this gave the jurors the impression that he was a dangerous person who might try to escape and, since this was a trial for attempted aggravated escape, it made it appear that he committed the crime for which he was charged.

We find no merit in this contention. Evidence adduced on the motion for a new trial reveals that only three of the twelve jurors remembered seeing defendants handcuffed. The handcuffs were not on defendants during trial or by court order. They were placed on defendants for their departure from the courtroom for a recess. The three jurors who recalled seeing defendants on this occasion testified that it had no effect on their decision; they considered it normal procedure; and it did not make them think defendants were dangerous. It should be noted that the jury was aware that defendants were in fact inmates of the Ouachita parish jail and were being prosecuted for their attempted escape therefrom.

The record must clearly show that the occurrence complained of was prejudicial to the rights of the accused. State v. Kinchen, 290 So.2d 860 (La.1974); State v. Tennant, 262 La. 941, 265 So.2d 230 (1972); State v. Spencer, 257 La. 672, 243 So.2d 793 (1971). In State v. Crockett, 262 La. 197, 263 So.2d 6 (1972), we found no prejudice requiring reversal where the accused was escorted out of the courtroom in handcuffs in full view of the jury on one occasion. Similarly, in the instant case, we do not find that the incident complained of prejudiced any rights of defendant. Accordingly, the trial judge did not err in denying defendant’s motion for a mistrial.

ASSIGNMENT OF ERROR NO. 5

Defendant first contends that the trial judge erred in denying him the right to impeach his own witness. He argues that he was taken by surprise in that the witness’ testimony at trial was contrary to a prior statement made to defense counsel. Secondly, defendant asserts that he was denied the right to cross-examine his own witness. He contends that this right is accorded him under the 1974 constitution which is broader in scope than the previous one (1921 constitution).

I.

The statutory provisions pertinent to defendant’s first contention are:

La.R.S. 15 :487:
No one can impeach his own witness, unless he have been taken by surprise by the testimony of such witness, or unless the witness show hostility toward him, and, even then, the impeachment must be limited to evidence of prior contradictory statements.
La.R.S. 15:488:
‘Surprise’ in the sense of the last preceding article does not arise out of the mere failure of the witness to testify as expected, but out of his testifying upon some material matter against the party introducing him and in favor of the other side.
La.R.S. 15:493:
Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom .the alleged statement was made, in order thg.t the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.

The context facts relevant to this issue are as follows. Solomon Graves, an inmate at the time of the attempted escape, was called as a defense witness. He testified as to the events that transpired on the night of the attempted escape. Defense counsel then asked the witness whether he had heard defendant say anything between lockdown and the time Martin returned to the cell block. Graves responded in the negative. Defense counsel then pleaded surprise. Outside the presence of the jury, defense counsel stated that he had previously spoken to this witness who related that he had heard defendant make a statement to the effect that defendant wanted to call off the escape but Ross would not allow it. It was on the basis of this prior contradictory statement to defense counsel that surprise was pleaded. Graves, admitting having previously spoken to defense counsel relative to this matter, was asked by defense counsel whether Graves recalled counsel asking him about statements made by defendant during the period in question. The state objected to defendant impeaching his own witness by use of a prior contradictory statement which was not in writing. The state’s objection was sustained.

The ruling was erroneous. Impeaching prior statements may be either oral or written. Our statutory law does not restrict prior contradictory statements to those written, for the word “statements” is used without qualification. La.R.S. 15:487 limits the impeachment to evidence of “prior contradictory statements,’’ and La.R.S. 15:493 refers to impeachment “by proof of any statement made by him contrary to his testimony.” (Emphasis added.)

The record clearly establishes that defendant was surprised by the testimony of Graves. His testimony at trial that he did not hear defendant say anything between lockdown and the time Martin returned to the cell block was contrary to his previous statement to defense counsel that defendant stated that he wanted to call off the escape but Ross would not allow it. Not only did the witness fail to testify as expected but his testimony was on a “material matter against the party introducing him and in favor of the other side” in that the defense in the case was that defendant had participated in the escape due to threats by Ross. La.R.S. 15:488.

Having been taken by surprise by the testimony of this witness, defendant was entitled to impeach him. By the court sustaining the state’s objection, defendant was precluded from proceeding to question Graves as to whether or not he admitted making said prior contradictory statement to defense counsel. If he had not distinctly admitted making such statement, evidence that he did make it would have been admissible. La.R.S. 15:493.

Thus, the trial court erred in not allowing defendant to impeach Graves. Never-théless, the error was not reversible, as any prejudice resulting therefrom was counteracted or removed by later testimony.

At most, defendant would have been able to get the prior contradictory statement of Graves before the jury. However, later testimony of defendant and another witness established the content of said statement. Defendant testified that after the lockdown but before Martin returned to the cell block he made the statement that he wanted to call it off but Ross said that it had gone too far and, if defendant refused to go along, “it’ll be your ass.” The testimony of Roberts (an inmate and co-defendant) was exactly the same as defendant’s in this respect. Since the ultimate purpose of impeaching Graves was to get before the jury the fact that defendant wanted to back out but could not because of threats from Ross, it was, in fact, accomplished by this later testimony. The prior contradictory statement of Graves would have been only cumulative under the circumstances. Any prejudice, resulting from the erroneous ruling by the trial judge, was removed by the later testimony, and therefore the error complained of is not reversible.

II.

Defendant’s second contention is likewise without merit. In State v. Brent, 248 La. 1072, 184 So.2d 14, cert. denied, 385 U.S. 992, 87 S.Ct. 605, 17 L.Ed.2d 452 (1966), State v. Bush, 297 So.2d 415 (La.1974), and more recently in State v. Rogers (La.1975), we held that an accused does not have the right to call a witness under cross-examination in a criminal prosecution. As we stated in Brent, Bush and Rogers, a witness called by defendant before he is called by the state becomes defendant’s witness. We further reject defendant’s contention that the right to cross-examine his own witness under the 1974 constitution is broader in scope than the previous one (1921 constitution).

In sum, Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends that the trial judge erred in not allowing him to call the deputy clerk of court to establish defendant’s prior convictions.

The context facts relevant to this issue are as follows. At trial, defendant took the stand in his own behalf. During cross-examination, he was asked if he had any previous convictions. He replied that he had been convicted of theft “by check” on December 30, 1974 and for issuing a worthless check a year earlier. On re-direct, defendant stated that his conviction for theft on December 30, 1974 was the result of a guilty plea. Apparently not satisfied with defendant’s testimony on this point, defense counsel attempted to call Bill McNabb, deputy clerk of court, to establish precisely the crimes for which defendant had been convicted. McNabb had previously testified as to these charges but was no longer in his office. The state objected to delaying the trial for this purpose. At this point, there was a short recess, after which it is stated in the record that the state and defendant had entered into a stipulation that defendant “pled guilty—was convicted of worthless checks or theft by checks on that date” (December 30, 1974). Defense counsel acknowledged his approval of the stipulation.

First, the trial judge never denied defendant’s request to call the deputy clerk. The request was apparently withdrawn by the acquiescence of defendant in the stipulation. Hence, defendant has clearly waived any right to complain. In any event, McNabb had previously testified that defendant had two charges of theft “by check” pending against him at the time of his incarceration. He further stated that both charges were for misdemeanors, minor offenses, involving checks for ten dollars and one dollar, respectively. Thus, it is of relative insignificance that the prior convictions were for theft or issuing worthless checks in view of the fact that evidence had been presented to the jury that the offenses were minor ones involving checks for only ten dollars and one dollar. Under these circumstances, no prejudice resulted. In sum, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 7

During cross-examination of Dwight Roberts, one of the co-defendants, the trial judge refused to permit defense counsel to ask him to compare defendant’s physical size to that of Ross, the inmate whom defendant contended threatened him into participation in the escape attempt. Defendant urges that this was error since this information was vital to his defense of justification.

Immediately prior to this question seeking the comparison of Ross’ size to that of defendant, Roberts described Ross as about one-half to three-quarters of an inch shorter than himself, weighing one hundred seventy-five to one hundred eighty-five pounds and huskily built in his shoulders and arms. From this description of Ross, the jury could easily compare it with that of defendant who was in their full view. Moreover, defendant had previously testified regarding the comparison of Ross’ physical size to his own. Therefore, the testimony of Roberts in this respect would have been merely cumulative. No prejudice resulted from the refusal of the trial judge to allow the question. Assignment of Error No. 7 is without merit.

ASSIGNMENT OF ERROR NO. 8

In this assignment of error, defendant alleges that the trial judge erred in overruling his motions for a directed verdict of acquittal at the close of the state’s evidence and of all the evidence. This court can find error in the trial judge’s denial of a motion for a directed verdict and reverse the conviction only when there is no evidence of the crime or an essential element thereof. La.Code Crim.P. art. 778 (1966); State v. Douglas, 278 So.2d 485 (La.1973).

Defendant was charged with the crime as set forth in La.R.S. 14:110, subd. B as follows:

B. Aggravated escape is:
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 his departure is under circumstances wherein human life is endangered.

Defendant urges that there was no evidence that the attempted escape took place “under circumstances wherein human life is endangered.” He further argues that all the evidence clearly indicates that any participation by defendant was justified under threats of great bodily harm by Ross.

Defendant was identified as one of the inmates who participated in the attempted escape and attack on Martin whose hands and feet were tied and a gag (towel) placed in his mouth. Martin testified that he could not breathe and would have strangled except for the fact that defendants returned and pulled the gag out a bit in order to permit him to answer as to the location of the keys. After finding the keys in his pocket, in their haste to leave, they did not push the gag all the way back. Martin also testified that Ross had earlier told the other inmates to gag and kill him. Martin was scratched and bruised and his finger injured. A trustee received an injury to his eye. Certainly, this constitutes some evidence that the attempted escape took place “under circumstances wherein human life is endangered.” Additionally, the record contains ample evidence that defendant’s participation in the crime was not justified under threats of great bodily harm by Ross. Hence, the trial judge correctly denied defendant’s motions for a directed verdict of acquittal. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 9

This assignment of error complains that La.R.S. 14:110, subd. B is unconstitutionally vague and ambiguous in that it does not define “under circumstances wherein human life is endangered.”

It is well settled that in order to comply with constitutional safeguards, penal statutes must describe the unlawful conduct with sufficient particularity and clarity that ordinary persons of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto. State v. Lindsey, 310 So.2d 89 (La.1975). The phrase “under circumstances wherein human life is endangered” offers a sufficiently clear and definite standard of criminal conduct. The words have a commonly known and well-understood meaning and application. Generic terms are often used by the legislature in defining criminal conduct. A statute need not set out every circumstance and variation in conduct which may be a violation thereof. City of Baton Rouge v. Norman, 290 So.2d 865 (La.1974). It suffices that the words or phrase used denote to a person of ordinary intelligence the conduct proscribed in the statute. La.R.S. 14:110, subd. B meets these tests. Defendant’s challenge to the constitutionality of the statute fails in this case. Assignment of Error No. 9 is without merit.

ASSIGNMENT OF ERROR NO. 10

Defendant asserts five grounds for the granting of a new trial. For the reasons hereinafter set forth, we find no error in the ruling of the trial judge denying this motion.

First, it is argued that the verdict is contrary to the law and the evidence. This presents nothing for our review. Three grounds deal with matters previously raised in Assignments of Error Nos. 4, 5 and 6. For reasons assigned therein, we find no merit in these contentions. The final ground urged in support of the motion is that the ends of justice require the granting of a new trial. This ground presents no error of law for our review. The trial judge did not err in denying defendant’s motion for a new trial. In sum, this assignment of error is without merit.

DECREE

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

      . Article 841 of the Code of Criminal Procedure as amended by La.Acts 1974, No. 297, § 1, provides that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. The requirement of an objection shall not apply to the court’s ruling on any written motion.”

      . Jones on Evidence, 6th ed., Vol. 4, Chap. 26, § 26:5, p. 182.

      . La.Const. art. 1, § 16 (1974) provides in pertinent part: “An accused is entitled to confront and cross-examine the witnesses against him . . . ,” whereas, La.Const. art. 1, § 9 (1921) provides in pertinent part: “The accused in every instance shall have the right to be confronted with the witnesses against him . . . .”

      . This issue is raised for the first time on appeal. Nevertheless, we consider it as the unconstitutionality of a statute on which a conviction is based is an error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. La.Code Crim.P. art. 920, Official Revision Comment (d) (1966), as amended, La.Aets 1974, No. 207, § 1. See State v. Williams, 322 So.2d 177 (La.1975); City of Baton Rouge v. Norman, 290 So.2d 865 (La.1974). Cf. La.Code Crim.P. art. 859 (2) (1966); State v. Peterman, 121 La. 620, 46 So. 672 (1908).


text:
    STATE of Louisiana ex rel. John C. STEIN, Jr. v. Hon. Judge James E. BOLIN, Jr., First District Court, Caddo Parish, Shreveport, Louisiana.
    No. 57453.
    Supreme Court of Louisiana.
    Feb. 13, 1976.
   In re: John C. Stein, Jr., applying for writ of mandamus.

Application denied. The response of the respondent explains that the relief requested is not available.

TATE, J.,

concurs. Technically, this matter seeking civil relief should have been presented to the Court of Appeal. In absence of a motion in the trial court to appoint an attorney to represent the absent wife, see La.Code of Civil Procedure, Art. 5091, this petition presents no recognized claim for relief.