author:
      SUMMERS, Chief Justice.
     CALOGERO, Justice, DENNIS, Justice,

text:
    STATE of Louisiana v. Tommie Lee MORGAN.
    No. 62797.
    Supreme Court of Louisiana.
    Jan. 29, 1979.

      Lee E. Ineichen, Jr., Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Chief Justice.

Defendant Tommie Lee Morgan was charged with and convicted of first degree' murder in violation. of Article 30 of the Criminal Code. After a sentencing hearing the jury recommended life imprisonment, and he was sentenced accordingly. On this appeal four assignments of error are urged for reversal of the conviction and sentence.

Accompanied by Wilfred Davis and Eddie Lee Johnson defendant Morgan entered McDonald’s restaurant on Canal Street in New Orleans about 8:35 on the evening of January 10,1978. The three men inquii’ed about possible employment and asked to speak to the Manager, Warren Grillette. When the Manager came forth defendant asked him for a job. The Manager replied they were not hiring at this time, but would be next week, suggesting that defendant return at that time. Defendant then demanded a job “now” and pulled his gun. Then, according to the interrogation of Christine Murray, an employee,

A. “ . . . When he pulled out the
gun Warren [Grillette the victim] pushed the gun over, and said, ‘Get that plaything out of here,’ and Warren pushed him on the side. And I said ‘Warren, that’s not no play gun.’ So when he pulled the gun out, and his partners said, ‘What’s wrong with you — ’
Q. Who said, ‘what’s wrong?’
A. His two partners did, hollered at him.
Q. And then what happened?
A. After that he just shot Warren.”

Warren expired in Charity Hospital about six weeks later from the shot in his chest.

Assignment 1: Defendant contends that the trial judge erroneously allowed the prosecutor to impeach the testimony of de-. fense witness Donald Gordon on cross-examination by use of a prior inconsistent statement.

During the trial Donald Gordon was called as a defense witness. On direct examination he testified that on the night of the shooting, January 10, 1978, he attended a party on Martin Luther King Boulevard or Erato Street, at which defendant was present. Defendant was drinking beer and became somewhat intoxicated; his talk was slurred as he left the party to go home and lie down. Eddie Lee Johnson was also at the party and had a pistol at the time. Gordon had never seen defendant with a pistol.

On cross-examination the prosecutor asked Donald Gordon whether he remembered giving a statement to Detective Ronald Brink and Pat Fricke around 8:30 on the evening of January 21, 1978, while he was in parish prison. At this point defense counsel objected that the statement had not been brought into question. The trial judge sustained the objection and when the prosecutor inquired if he could impeach Gordon with the statement the trial judge ruled that he would permit impeachment if the proper predicate was established. Defense counsel then objected that the State could not impeach its own witness, to which the trial judge responded that the defense, not the State, had called the witness Gordon to the stand.

The prosecutor then interrogated Gordon, establishing that he had given a statement to Detectives Brink and Fricke around 8:30 p. m. on January 21, 1978, in the parish prison. In that statement Gordon said that he saw defendant Morgan, Davis and Johnson on the night of the shooting. At that time they said they were going to rob a McDonald’s restaurant. Later that night Gordon saw them again and “they said they robbed the man at McDonald’s and they shot him,” and at the party that night he “heard Tommy say that he shot a man in McDonald’s.”

Defense counsel argues that the impeachment was beyond the permissible scope of cross-examination because there had been no mention of the written statement on direct examination, and that a proper foundation had not been laid for the prior contradictory statement.

Neither of these defense contentions has merit. The scope of cross-examination is not limited to matters referred to on direct examination. By statute in this State when a witness has been sworn and has testified to any single fact in his examination in chief he may be cross-examined upon the whole case. La.Rev.Stat. 15:280; State v. Weathers, 320 So.2d 895 (1975); State v. George, 346 So.2d 694 (La.1977); State v. Polk, 258 La. 738, 247 So.2d 853 (1971); State v. Richardson, 258 La. 62, 245 So.2d 357 (1971).

The credibility of a witness may be impeached by proof of any statement made by him contradictory to his testimony if he is first asked whether he has made such a statement, and his attention is called to the time, place and circumstances, and to the person to whom the prior statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such a statement, evidence that he did make it is admissible. La.Rev.Stat. 15:493; State v. Williams, 362 So.2d 530 (La.1978); State v. Klein, 351 So.2d 1158 (La.1977).

In the instant case the proper foundation for the impeachment of the witness was established, and there was no error in the ruling of the trial judge allowing the prosecutor to impeach the witness’ testimony-

Assignment 2: Defendant contends that the trial judge erred when the District Attorney was allowed to introduce evidence of a photographic lineup when the lineup was highly suggestive and led to an irreparable mistaken in-court identification prejudicial to defendant.

The photographic identification was unduly suggestive, according to the defense contention, because only four photographs were used, when ten should have been exhibited to the witnesses. In addition photographs of more than one suspect were used. It is further submitted that there was no adequate independent basis for the in-court identification. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); United States v. Johnson, 147 U.S.App.D.C. 31, 452 F.2d 1363 (1971) and United States v. Boston, 508 F.2d 1171 (2d Cir. 1974), are relied upon to support defendant’s contention.

Relying upon the principles announced in Wade and Stovall supra, defendant filed a motion in advance of trial to suppress the identification. A hearing was held on that motion and, finding no taint in the photographic lineup, the trial judge denied the motion to suppress the photographic identification of the defendant.

The facts developed at the motion to suppress and at the trial show that on January 21, 1978, eleven days after the shooting, Christine Murray, a McDonald’s employee, who was present when Grillette was shot, was shown a group of eight photographs by Detective Fricke. She was asked if she could identify anyone in connection with the January 10 shooting. Nothing else was said until she identified the photo of Morgan as that of the trigger man.

On a separate occasion on the same date Avis Brock, another McDonald employee who was present at the shooting, identified the photo of Morgan from the same eight photos as the person who shot Grillette, but her identification was tentative.

After a review of the eight photographs, the trial judge found no vast difference in the subjects which would suggest to these witnesses the identity of the defendant. Our review of the photographs leads to the same conclusion.

United States v. Boston, 508 F.2d 1171 (2d Cir. 1974) does not hold, as appellant claims, that at least ten photographs are essential to a valid lineup. On the contrary, the Second Circuit stated that “there is no magic number.”

Nor does United States v. Johnson, 147 U.S.App.D.C. 31, 452 F.2d 1363 (1971), support the defense contention that if photos of two suspects are in the lineup it is unduly suggestive. As the opinion is understood, such a procedure is a common practice, not inherently prejudicial if a sufficient number of stand-ins are used.

No exact detailed criteria for a legitimate photographic lineup is established. Except for the broad outlines found in the cases, the fundamental rule is that each case must be considered on a careful analysis of its own facts. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

Based upon the foregoing there was no error in the ruling of the trial judge admitting evidence of the photographic lineup.

Moreover, we are satisfied that there was an adequate independent basis to support the in-court identification notwithstanding the photographic identification.

Each of the McDonald’s employees who identified defendant witnessed the shooting in a well-lighted room. Each spoke to defendant. Each came in close contact with defendant. Each had ample opportunity (five to fifteen minutes) to view defendant as he entered the restaurant the first time and returned a second time.

Assignment 3: It is the defense contention that the Assistant District Attorney prosecuting this case went beyond the trial evidence in his rebuttal argument to the jury.

The prosecutor’s remarks which are the basis of this contention are statements that defendant shot Grillette because he “didn’t give him money”, inferring that robbery was the motive for the killing. The argument is that there was no testimony on the part of Christine Murray that defendant robbed or attempted to rob anyone, the only evidence being that he asked for a job. The only evidence concerning a robbery was that which the prosecutor used when he introduced Donald Gordon’s prior statement to impeach his testimony. This statement used to impeach, the argument continues, is ' not evidence, and goes only to the witness’' credibility.

Defense counsel made no objection to the controverted statement at the time, but did object later to other references to the statement. At that time the judge admonished the prosecutor to refrain from references to anything not in evidence, nevertheless defense counsel moved for a mistrial, which the judge denied. He then asked defense counsel if he wanted to have him instruct the jury to disregard the controverted remarks, but defense counsel elected to stand on his motion for a mistrial.

The motion for mistrial is without merit. The remarks of the prosecutor were based upon the evidence. Toward the end of Donald Gordon’s testimony, while he was being cross-examined by the State, he was asked, “you testified previously that Tommy (sic) Lee Morgan said he shot the man at McDonald’s because the man wouldn’t give him the money, correct?” Gordon replied, “Yes.” Thereafter on redirect examination, defense counsel asked Gordon, “Now, after he said he had done the shooting, what, if anything, did Tommy (sic) Lee say to you about why he had done — said he had done it?”, and Gordon answered, “Because the guy didn’t give him the money.”

Assignment 4: Appellant Morgan took the stand in his own defense. He testified that he went to McDonald’s on the night of the shooting with Eddie Lee Johnson and Wilfred Davis, and that Johnson pulled a gun and shot Grillette. During cross-examination by the prosecutor, this colloquy occurred: '

“Q. You all [referring to Eddie Lee Johnson and Wilfred Davis] pal around together a lot huh?
A. Not that much.
A. No? You’re in that picture, you’re in the McDonald’s together, you’re at the party together — you don’t pal around that much?
A. (No response).
Q. You commit armed robberies together and murders together, don’t you?
BY MR. INEICHEN (defense counsel) Your honor, we object.
BY THE COURT:
Sustained.

The defense assignment of error simply alleges prejudice. For the first time, in brief to this Court, he argues that he was entitled to a mistrial under Article 770 of the Code of Criminal Procedure.

The contention is not well-founded. The motion for a mistrial to which defendant is entitled when the prosecutor refers before the jury to “another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible” is not available to this defendant.

When defendant’s objection was sustained, therefore, the relief he sought was granted. Moreover, this Court has held on a number of occasions that it is necessary to lodge a contemporaneous objection to be entitled to a mistrial. State v. Sullivan, 352 So.2d 649 (La.1977); failure to make the motion is considered a waiver of the error, State v. Ervin, 340 So.2d 1379 (La.1976); State v. Pearson, 336 So.2d 833 (La.1976).

Furthermore, taken in the context of the trial evidence and the testimony of the witness the prosecutor’s question was relevant and admissible.

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

CALOGERO, J., dissents and assigns reasons.

DENNIS, J., concurs and assigns reasons.

CALOGERO, Justice,

dissenting.

I disagree with the majority’s consideration of only four of defendant’s five assignments of error and its apparent conclusion that assignment five was abandoned because neither briefed nor argued. Although there is no specific argument of the assignment in defendant’s brief and there was no oral argument because the case was submitted, the recitation of the assignment itself appears in brief, is self-explanatory and adequately presents this issue for the Court’s review.

Furthermore, that assignment (five), which takes issue with the district attorney’s questioning the defendant as to his failure to make an exculpatory statement after being taken into custody, has merit for reasons I expressed in State v. Procell, La., 365 So.2d 484. I would reverse this defendant’s conviction and order a new trial.

DENNIS, Justice,

concurring.

I respectfully concur, disagreeing with the treatment of assignment of error number four. The reference to “armed robberies and murders” was not reversible error only because within its context it alluded to the crime for which defendant was on trial and not to “other crimes.” Additionally, it should be noted that assignment of error number five, if it had not been abandoned, would have presented reversible error based upon a violation of defendant’s privilege against self-incrimination.

       Chief Judge L. Julien Samuel participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    STATE of Louisiana in the Interest of Kenneth BATISTE and David James Cormier.
    No. 62821.
    Supreme Court of Louisiana.
    Jan. 29, 1979.

      Robert L. Cole, Cole & Guidry, Lafayette Indigent Juvenile Defender, Lafayette, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Frances M. Gilfoil, Asst. Dist. Atty., for plaintiff-applicant.
   DENNIS, Justice.

The issue of law raised by this case is whether a child accused of having committed the crime of theft may be declared a delinquent child upon a finding that he committed the crime of unauthorized use of a movable.

A petition was filed in the juvenile court to have Kenneth Batiste and David James Cormier adjudged delinquent children, alleging that Batiste had committed theft of a bicycle on July 25, 1977 and that both juveniles had attempted to commit theft of another bicycle on August 28, 1977. After a hearing, the juvenile court declared both juveniles to be delinquent children, finding that they had attempted to commit theft of a bicycle and that Batiste had committed unauthorized use of another bicycle. Batiste was committed to the Department of Corrections and Cormier was placed on supervised probation.

On appeal, the Third Circuit Court of Appeal reversed the juvenile court judgments. We granted the State of Louisiana’s petition to review the reversal in the Batiste case. 362 So.2d 798 (La.1978). The State did not apply for other relief, and accordingly the court of appeal judgment reversing the adjudication of delinquency as to David James Cormier is not before us.

The court of appeal’s reversal of the Batiste adjudication was based upon the following rationale: (1) “[Jjuvenile hearings shall be conducted in accordance with the general rules of procedure in civil proceedings;” (2) “The provisions of the Code of Criminal Procedure are not applicable;” (3) “Since the provisions of the Code of Criminal Procedure are inapplicable, a verdict of guilty of unauthorized use of movables is not responsive . . . [and] could not be a valid basis for an adjudication of delinquency.” State of Louisiana in the Interest of Kenneth Batiste and David James Cormier, 359 So.2d 1077, 1079 (La. App.3d Cir. 1978).

At the time of the proceeding in the instant case, La.R.S. 13:1579 provided that a juvenile court hearing shall be conducted in accordance with the general rules of procedure used in civil proceedings. However, there was no statute expressly declaring criminal procedural laws inapplicable in juvenile court proceedings.

Juvenile delinquency proceedings which may lead to commitment in a state institution must measure up to the essentials of due process and fair treatment accorded defendants in criminal prosecutions. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1977); State of Louisiana in the Interest of Andrew Leonard Dino, 359 So.2d 586 (La.1978). Hence, this Court has determined, for example, that a juvenile is constitutionally guaranteed a right to plead not guilty by reason of insanity and a right to a hearing to determine his mental capacity to assist in his defense. State in the Interest of Causey, 363 So.2d 472 (La.1978). Consequently, the statutory' implementation of these rights for criminal accuseds, La.C. Cr.P. arts. 641 et seq.; 650 et seq., is at least indirectly applicable to juvenile proceedings. Accordingly, the court of appeal’s statement that all provisions of the Code of Criminal Procedure are inapplicable in juvenile cases is too sweeping.

Moreover, even if we were to assume that the chapter on verdicts of the Code of Criminal Procedure has absolutely no application in juvenile proceedings, it does not follow that a juvenile judge is without statutory authority to adjudge a child to be a delinquent based on the commission of a lesser offense included within the charged crime. If a juvenile court finds that a child has committed a crime under a statute or an ordinance, it may adjudge the child to be a delinquent child. La.R.S. 13:1569(13) and (14); La.R.S. 13:1580. Although the petition in a juvenile proceeding must set forth with specificity the facts upon which the allegation of delinquency is based and cite the statute or ordinance which the child is alleged to have violated, La.R.S. 13:1574(C)(1), there is no statutory prohibition against an adjudication of delinquency based upon a finding that the child committed a lesser offense included within the crime alleged in the petition. The rule that an offender prosecuted for the greater offense may be convicted of any one of the lesser and included offenses was established long before the juvenile statutes. See, La. R.S. 14:5 and Reporter’s Comment. In the absence of an express stipulation to the contrary, therefore, we conclude that the legislature intended for the same rule to apply in juvenile cases.

The court of appeal did not consider a more difficult constitutional question raised by this case: whether a child adjudged to be delinquent, because of a lesser offense included within the crime alleged in the petition, has been denied the right to be informed of the nature and cause of the accusation against him. La.Const.1974, art. 1, § 13. In expounding upon the notice of the specific charge or factual allegations to be given a child and his parents or guardian in juvenile delinquency proceedings, as required by the Fourteenth Amendment due process guarantee, the Supreme Court, in In re Gault, supra, stated:

“ * * * Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must ‘set for the alleged misconduct with particularity.’ It is obvious, as we have discussed above, that no purpose of shielding the child from the public stigma of knowledge of his having been taken into custody and scheduled for hearing is served by the procedure approved by the court below. The ‘initial hearing’ in the present case was a hearing on the merits. Notice at that time is not timely; and even if there were a conceivable purpose served by the deferral proposed by the court below, it would have to yield to the requirements that the child and his parents or guardian be notified, in writing, of the specific charge or factual allegations to be considered at the hearing, and that such written notice be given at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation. Due process of law requires notice of the sort we have described — that is, notice which would be deemed constitutionally adequate in a civil or criminal proceeding. It does not allow a hearing to be held in which a youth’s freedom and his parents’ right to his custody are at stake without giving them timely notice, in advance of the hearing, of the specific issues that they must meet. * * * ” [footnotes omitted] 387 U.S. at 33-34, 87 S.Ct. at 1446-47, 18 L.Ed.2d at 549-50.

Because a juvenile who is alleged to have committed a serious crime is confronted with consequences not essentially different from those faced by adult criminal defendants — confinement within the discretion of the juvenile judge under conditions similar to those in adult prisons; possible transfer to an adult prison; social and economic stigma of indefinite duration — he is clearly entitled under the due process and adequate notice guarantees of our state constitution to be given timely written notice, in advance of the adjudicatory hearing, of the specific charge or factual allegations to be considered and the specific issues he must meet. La.Const.1974, art. 1, §§ 2, 13; see State of Louisiana in the Interest of Andrew Leonard Dino, 359 So.2d 586 (La. 1978).

Consequently, the crucial issue of law which we must decide is whether the petition filed in the instant case provided adequate notice as required by the federal and state constitutions. It is not disputed that the juvenile and his parents were given a timely written notice of the hearing. The only issue which is in doubt is whether the notice was adequately informative. The petition, in pertinent part, stated:

“Kenneth Batiste did on July 25, 1977 commit theft of a Schwinn 27" bicycle valued at $78.00 belonging to Cully Fir-min in violation of the provisions of R.S. 14:67.”

Accordingly, Batiste, his parents and his ■attorney were notified in writing that the state would seek to prove that on July 25, 1977 he misappropriated or took a Schwinn 27" bicycle valued at $78.00 belonging to Cully Firmin without his consent, or by means of fraudulent conduct, practices or representations, and with an intent to deprive Firmin permanently of the bicycle. See La.R.S. 14:67. Further, Batiste, his parents and his attorney were placed on notice by the substantive criminal statutes of Louisiana that the crime of theft included all of the elements of the lesser included offense of unauthorized use of a movable. See La.R.S. 14:5, 67, 68.

At the hearing the juvenile judge determined that that state had proved all of the elements of the offense of theft except Batiste’s intent to permanently deprive the owner of the bicycle. Thus, although a theft was not established, the facts educed by the state were sufficient, in the trial judge’s opinion, to find that the juvenile had committed the lesser included offense of unauthorized use of a movable.

The petition filed against Batiste in this case set forth the charged offense as well as the specific allegations of misconduct which formed the basis for the charged offense. Because of the intimate legal and practical relationship between the charged crime, theft, and the lesser included offense of unauthorized use of a movable, we conclude that the petition was sufficient to put the juvenile’s defense on notice that it would be required to defend against the lesser included offense.

Counsel for the juvenile contends in the alternative, however, that if this Court should conclude there was no error in the juvenile court’s consideration of the lesser offense as a proper ground for delinquency under the State’s petition, the court of appeal judgment should be affirmed because the state failed to prove beyond a reasonable doubt that Batiste committed an unauthorized use of a movable. The contention has merit.

Except as otherwise provided by the constitution, this Court’s jurisdiction in civil cases extends to both law and facts; in criminal matters, its appellate jurisdiction extends only to questions of law. La.Const. 1974, art. 5, § 5(C). Juvenile delinquency proceedings do not fall within the category of criminal prosecutions, as is evident from long established jurisprudence, In re Tillotson, 225 La. 573, 73 So.2d 466 (1954); State v. David, 226 La. 268, 76 So.2d 1 (1955); State v. Smith, 209 La. 363, 24 So.2d 617 (1945); State ex rel. Caiilouet v. Marmouzet, 111 La. 225, 35 So. 529 (1903), and the special juvenile provisions within the judiciary article of the constitution. La.Const. 1974, art. 5, §§ 10, 18 and 19. Accordingly, since the constitution does not provide otherwise, the scope of review of this Court in juvenile delinquency proceedings extends to both the law and the facts. Cf. State in the Interest of Williams, 325 So.2d 854 (La.App.2d Cir. 1976).

In a juvenile proceeding no child may be adjudged to be delinquent in the absence of proof beyond a reasonable doubt that such condition exists. La.R.S. 13:1579.1. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Before a juvenile court may declare a child to be delinquent it must find that the child has committed a crime and that he is in need of care or rehabilitation. La.R.S. 13:1569(13) and (14). Consequently, the state must prove beyond a reasonable doubt both that the child has committed a crime and that the child is in need of care or rehabilitation in order to be entitled to have the child adjudged delinquent.

In reviewing the record in the instant case we find there is insufficient evidence to support a finding beyond a reasonable doubt that Batiste committed the crime of unauthorized use of a movable. Batiste was arrested in a Lafayette city park in connection with another alleged offense which is not before us in this review. At the time of his arrest he was in possession of a bicycle which the police subsequently determined had been stolen from Cully Firmin thirty-four days before. In the juvenile court a friend of Batiste, Irvin Johnson, testified that he loaned, and later gave, the bicycle to Batiste. Johnson further testified that the bicycle was given to him by Derrick Gotch, who did not appear as a witness.

The lack of an intention to deprive the owner of the movable permanently is the factor which distinguishes unauthorized use of movables from theft. La.R.S. 14:68, Reporter’s Comment. Accordingly, both theft and unauthorized use of movables require a misappropriation or taking by the culprit. See La.R.S. 14:67, 68. The defense stipulated that the bicycle had been taken from its owner, and the arresting officers testified that they found it in Batiste’s possession. However, aside from the inference which possibly could be drawn from Batiste’s possession, there was no evidence tending to prove that he took or misappropriated the bicycle. In opposition to the mere basis for possible inference provided by the state’s evidence, Batiste presented unrefuted testimony from sworn witnesses that Batiste had not taken or misappropriated the bicycle, but that he had obtained the movable lawfully. From this evidence we conclude that the juvenile court was clearly in error in finding beyond a reasonable doubt that Batiste committed unauthorized use of the bicycle.

For the foregoing reasons, the judgment of the court of appeal reversing the delinquency adjudication and order of commitment of Batiste, discharging him from custody, and dismissing the petition against him, is affirmed.

AFFIRMED.

       Chief Judge William Culpepper participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.

      . Compare Louisiana Code of Juvenile Procedure, art. 24 (effective January 1, 1979), which provides:
      “The provisions of this Code, except as otherwise specially provided in the law being applied, shall govern and regulate the proceedings of courts exercising juvenile jurisdiction.
      “Where procedures are not provided in this Code, or otherwise by law, the court shall proceed in accordance with:
      “(1) The Code of Criminal Procedure in a criminal trial of an adult; or
      “(2) The Code of Civil Procedure in all other matters.”

      . It would be more precise to say that, except insofar as required to implement these and other rights constitutionally guaranteed to juveniles, the provisions of the Code of Criminal Procedure are inapplicable in juvenile proceedings. See, In re Tillotson, 225 La. 573, 73 So.2d 466 (1954); In re Braswell, 294 So.2d 896 (La.App.2d Cir. 1974); In re Tyler, 262 So.2d 815 (La.Ápp. 4th Cir. 1972).

      . At the time of Batiste’s adjudication, La.R.S. 15:907(B) provided that a committed male juvenile of the age of fifteen years or over could be transferred from a juvenile institution to the Louisiana Correctional and Industrial School if it was determined that the juvenile was incorrigible or that such a transfer would be in the best interest of the institution or the public. The Louisiana Correctional and Industrial School is used to incarcerate first-offender adult males who have been sentenced to the penitentiary and who are found to be suitable for rehabilitation. La.R.S. 15:1062. Since Batiste’s adjudication, Act 497 of 1978 repealed La.R.S. 15:907(B).

      . We note that unauthorized use of a movable is a responsive verdict to a charge of theft under La.C.Cr.P. art. 814(24). While not dis-positive of the issue involved in the present case, the theory on which responsive verdicts is based is relevant. Responsive verdicts were originally permitted because it was determined that a defendant charged with the commission of a given crime would be put on notice by that charge to defend against a lesser and included offense of the same genus. See, e. g., State v. Cole, 158 La. 799, 104 So. 720 (1925); Comment, 5 La.L.Rev. 603, 609 (1944). The drafters of article 814 believed that a charge of theft would be sufficient to put a defendant on notice that he would be required to defend against a charge of unauthorized use of movables. La.C. Cr.P. art. 814, Official Revision Comment (c).

      . Batiste’s conduct more nearly coincides with the obsolete crime of “having” property which had been stolen, La.R.S. 1870, § 832, as amended by Acts 1898, No. 72; Acts 1938, No. 369, § 1, than with-the present offense of unauthorized use of movables. The crime of “having” stolen property, which is no longer defined in Louisiana law, see La.R.S. 14:69, Reporter’s Comment, included the possession of stolen goods where the possessor did not himself take the goods and might have originally acquired their possession without knowledge that they were stolen,


author:
SUMMERS, Chief Justice.
     TATE, Justice,

text:
    STATE of Louisiana v. Lionel MUSE.
    No. 62930.
    Supreme Court of Louisiana.
    Jan. 29, 1979.

      Alton T. Moran, Director, Allen J. Ber-geron, Jr., App. Counsel, M. Olive Pierson, Trial Counsel, J. Arthur Smith, III, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Mary V. Gilliland, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Chief Justice.

Lionel Muse was charged by bill of information with the August 29, 1976 simple burglary of a structure belonging to Dr. Robert L. Elliott known as Breast Clinic on Convention Street in the city of Baton Rouge. La.Rev.Stat. 14:62 (1972). He pled guilty to the charges on January 10, 1977. The trial judge ordered a presentence investigation and deferred sentencing pending receipt of the report.

The sentencing scheduled for October 31, 1977 was deferred because the presentence report had not been received. Accordingly, the trial judge ex proprio motu ordered that the accused, his counsel, the District Attorney, the Sheriff, and the Probation and Parole Division of the Department of Corrections be notified that sentence would be imposed on December 2, 1977. On December 2, 1977, because the accused had not been returned from the penitentiary sentencing was again deferred until January 13, 1978. Although the record is silent on the subject, all parties evidently agreed to defer the matter until January 20, 1978.

On January 20, 1978, with the accused present in court and represented by counsel, the District Attorney filed a bill of information charging defendant as an habitual offender. The allegations of the charge were denied by defendant. Sentence was again deferred on the guilty plea of January 10, 1977 pending a hearing under the Habitual Offender Law, which was assigned for March 21, 1978.

At the hearing, as scheduled, counsel for the accused filed a motion to quash the bill of information charging defendant as a multiple offender. The motion was based on the allegation that the multiple offender bill was not timely, and defendant was thereby deprived of the right to a speedy trial and the right to be sentenced without unreasonable delay as guaranteed by Article 874 of the Code of Criminal Procedure. The motion also alleged that defendant’s January 10, 1977 guilty plea could not be used to enhance his punishment because defendant was not advised prior to his guilty plea that an enhanced penalty could possibly result from that plea. If he had known this, it is alleged, he would not have entered a guilty plea.

The motion to quash was denied, the hearing was held and the trial judge found defendant to be a second felony offender. Defendant was therefore sentenced to imprisonment at hard labor for eighteen years.

Assignment 1: Louisiana’s Habitual Offender Law permits the District Attorney to file an habitual offender charge “at any time, either after conviction or sentence.” La.Rev.Stat. 15:529.1D. The open-ended “at any time” latitude granted for filing habitual offender charges is tempered in this case by our decision in State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974), where we held that the Habitual Offender Law did not permit an indefinite lapse of time for institution of a proceeding for enhancement of penalty. The holding there was that the proceeding after completion of the term of incarceration was unduly delayed, and the enhanced penalty imposed was vacated.

In State v. McQueen, 308 So.2d 752 (La.1975), we held that an unexplained delay of three years, eight months, in filing a charge to enhance penalty was unreasonable. Our decision in that case recognized the rationale that the enhancement of penalty under the Habitual Offender Law was not a trial on guilt or innocence but was in fact a sentencing procedure which permits enhancement of punishment for recidivist offenders. State v. Rowell, 306 So.2d 668 (La.1975). As such, the Court rationalized, the procedure is subject to the prompt sentence requirement in Article 874 of the Code of Criminal Procedure that “Sentence shall be imposed without unreasonable delay. If a defendant claims that the sentence has been unreasonably delayed, he may invoke the supervisory jurisdiction of the supreme court.”

In essence, therefore, the question for decision here is whether the sentence, imposed nineteen months after conviction, was imposed “without unreasonable delay.”

Initially it is observed that at no time during the delay from the time of the guilty plea to the enhanced penalty proceeding did defendant avail himself of the right granted by Article 874 to “invoke the supervisory jurisdiction of the supreme court.” in order to expedite the sentencing.

Although the record is otherwise silent on the question, it does reflect that the trial judge who received the guilty plea ordered a presentence report. Some permissible delay was undoubtedly attributable to the need to await that report. During this delay defendant had been returned to the penitentiary because of a revocation of parole in connection with another conviction. Sentencing, which had been first scheduled for October 31,1977, was postponed because the presentence report had not been received. On December 2, 1977 sentencing was again deferred because defendant had not yet been returned from Angola, a delay which it may be inferred was not due to any neglect on the part of the judge or prosecutor.

It should be recalled that defendant did receive a speedy trial — within less than five months of the offense, which, when added to the delay for sentencing, constitutes an overall delay of less than twenty months. This delay is well within the two-year delay allowed by the Code of Criminal Procedure in this felony case for commencement of trial after institution of the prosecution. La.Code Crim.Pro. art. 578(2). The delay in the instant case is likewise well within the six-year limitation provided by the Code for the institution of prosecution in such a felony case. La.Code Crim.Pro. art. 572.

Considering the facts and circumstances of this' ease the delay involved is not unreasonable.

The other issue raised by the motion to quash consists of the allegation that the failure to inform defendant at the guilty plea that his conviction in the instant case could possibly result in a subsequent charge for enhancement of penalty.

The fundamental proposition involved arises from the decision of the United States Supreme Court in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, where the Court held that because several constitutional rights are waived when a guilty plea is entered, due process requires that it be affirmatively shown by the record that the plea was intelligently and voluntarily entered.

“What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.” 395 U.S. at page 243, 89 S.Ct. at page 1712.

In a colloquy transcribed into 22 pages in this record the trial judge meticulously and laboriously instructed and advised the defendant of the rights he was waiving by his guilty plea. He assured himself by interrogating the defendant that defendant understood those rights and waived them freely and voluntarily. In every respect the Boykin rule was adhered to.

Recent cases in this Court, fully cognizant of the Boykin rule, have held that defendant need not be informed when he enters a guilty plea that it may serve as a basis for an enhanced sentence on a future conviction. One example is State v. Jackson, 362 So.2d 1082 (La.1978), where this Court held:

“[N]o authority has been cited which required the trial judge to advise Jackson [the defendant] that the conviction resulting from a guilty plea could be used in a future multiple offender charge.
“Courts have held that failure to advise of collateral, but foreseeable, adverse consequences of a guilty plea does not permit the withdrawal of the guilty plea. Nor is the trial judge required to anticipate all of the peripheral consequences which may affect the defendant in the future as a result of a guilty plea.” Authorities omitted. See also State v. Lewis, 366 So.2d 1355 (La.1978); State v. Hoffman, 345 So.2d 1 (La.1977).

Assignment 2: Defendant urges on appeal that the trial judge committed error when he admitted into evidence at the habitual offender hearing uncertified documents purporting to represent a commitment of defendant as a felon. It is claimed that such a ruling is contrary to Section 529.1 F of Title 15 of the Revised Statutes, which provides:

“The certificates of the warden or other chief officer of any state prison, or of the superintendent or other chief officer of any penitentiary of this state or any other state of the United States, or of any foreign country, under the seal of his office, if he has a seal, containing the name of the person imprisoned, the photograph, and the finger prints of the person as they appear in the records of his office, a statement of the court in which a conviction was had, the date and time of sentence, length of time imprisoned, and date of discharge from prison or penitentiary, shall be prima facie evidence on the trial of any person for a second and subsequent offense of the imprisonment and of the discharge of the person, either by a pardon or expiration of his sentence as the case may be under the conviction stated and set forth in the certificate.”

Aside from evidence offered at the habitual offender hearing, reference to the transcript of the guilty plea examination on January 10, 1977 makes it abundantly clear that defendant was a recidivist offender and had been convicted of a prior felony. At the time of this examination he testified that he was incarcerated in the parish jail for the offense in this case and could not be admitted to bail because he was then a parole violator for an offense for which he had been imprisoned in the state penitentiary. He testified that at that time he owed time on a six-year sentence for a conviction on a two-count charge of simple robbery in the parish of Orleans, having pled guilty to those charges.

At the habitual offender hearing Scott Tycer, records custodian at the Louisiana State Penitentiary, testified for the State. He said that he had “the most recent file” on defendant Muse. He testified that Muse had been received at the penitentiary as a parole violator, parole having been granted under a sentence arising out of a conviction on two counts of simple robbery. He then produced what he designated as a “commitment paper”, together with other documents which were part of the penitentiary records received from the Clerk’s Office of the Criminal District Court in Orleans Parish.

The documents consisted of the commitment, a copy of the indictment and/or information under which Muse was convicted, a copy of the sentence as recorded in the minutes of court, and the name and address of the judge, and the District Attorney who participated in the trial.

When the prosecutor offered the documents in evidence, defense counsel objected to the introduction of the commitment on the ground that it was not certified. He also objected to the bill of information because the habitual offender charge alleged a conviction on June 11, 1971, whereas an attestation on the bill of information that it was a true copy was dated June 25, 1971. Both objections were overruled.

The commitment was not certified. However, the records custodian of the penitentiary testified that the commitment was a record of the penitentiary and it had been received from the court in Orleans Parish in which defendant was convicted. In our view that testimony bears considerable weight and validity, comparable to a certificate of the “superintendent or other chief officer of any penitentiary of this state,” although it is not “prima facie” proof.

The quoted statute relied upon by the defense, which states that certified documents are prima facie evidence, does not purport to confine the scope of proof of offenses to that evidence. All other legitimate evidence may be used to support the necessary proof of other felony convictions.

In State v. Hamilton, 356 So.2d 1360 (La.1978), we stated that the statute is not the exclusive method of proving that defendant is a habitual offender, relying upon our decisions in State v. Barrow, 352 So.2d 635 (La.1977); State v. Jones, 332 So.2d 461 (La.1976); State v. Montana, 332 So.2d 248 (La.1976).

In addition to the documents to which defendant objected, the State also offered a certified record and fingerprint card from the Louisiana State Police Criminal Records Unit. An employee of that unit, a fingerprint technician, fingerprinted defendant at the hearing and testified that he was the same Lionel Muse who had two prior convictions, according to the rap sheets in the records of her office and the fingerprint card containing an original of Muse’s fingerprints. On this record, therefore, there is adequate proof of defendant’s prior convictions.

As to the claim that the copy of the bill of information was inadmissible because the attestation thereon did not agree with the date of conviction on the habitual offender charge, that contention is also without merit. The back of the bill of information contains a summary of the guilty plea showing that it was made on June 11, 1971 —the same date shown on the charge. The fact that the attestation was made later on June 25,1971 has no bearing on the date of conviction.

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

TATE, J., dissents and assigns reasons.

DENNIS, J., dissents. Evidence essential to the defendant’s adjudication as a habitual offender was unlawfully admitted. See State v. Martin, La., 356 So.2d 1370 (1978); State v. Tillman, La., 356 So.2d 1376 (1978).

TATE, Justice,

dissenting.

I respectfully dissent. In my view, the two contentions raised by the defendant’s appeal are both meritorious:

I. By his motion to quash the bill of information charging him as a multiple offender, the defendant argues that the bill, filed more than a year after his guilty plea, was not timely, and thus violates his right under La.C.Cr.P. art. 874 to be sentenced without unreasonable delay, and his right to a speedy trial guaranteed by the United States Constitution, Amendment VI, and the Louisiana Constitution of 1974, Article I, Section 16.

II. Alternatively, the defendant contends that the filing of the multiple bill “eviscerated” the effectiveness of his guilty plea because at the time the plea was entered he was not informed that he could be sentenced to a term greater than is provided in the simple burglary statute. Accordingly, he contends that his plea was not voluntary and intelligent in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1968).

I.

Recently, in State v. Johnson, 363 So.2d 458 (La.1978), this court found that the right to be speedily sentenced is not guaranteed by the Sixth Amendment and Article I, Section 16 of the Louisiana Constitution of 1974. In Johnson, defendant was not sentenced until seven years after his conviction because he escaped and was arrested, convicted, and sentenced in Michigan before being paroled after seven years, when he was returned to Louisiana.

However, the Johnson situation is distinguishable: it concerned a delay in sentencing, whereas the instant case involves a prolonged delay in instituting multiple-offender proceedings.

Before the state can attempt to have defendant sentenced as a multiple offender, it must file an additional bill of information against defendant and prove that defendant was the person who committed the prior crimes alleged in the multiple bill. Thus, sentencing as a multiple offender, unlike ordinary sentencing, requires a separate trial to determine whether defendant should be sentenced as a multiple offender. Therefore, at least one of the considerations underlying the speedy trial right, minimization of anxiety and concern accompanying public accusation (as a multiple offender), is present. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

We have repeatedly held that the state must file an habitual offender bill within a reasonable time after the prosecutor knows the defendant has a prior felony record. State v. Wilson, 360 So.2d 166 (La.1978); State v. Bell, 324 So.2d 451 (La.1975); State v. McQueen, 308 So.2d 752 (La.1975); State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974). In McQueen, Bell, and Williams, we noted that the state and federal constitutional rights to a speedy trial require prompt submission of a multiple bill, if it is to be submitted at all.

In Williams, we explained, 289 So.2d 77: “A case must end at some point. Even persons who have been convicted of two or more felonies must be assured, after some passage of time, that the consequences of past criminal acts have abated

“A defendant has a right to a speedy trial. La.Const. Art. 1, § 9 (1921) [Art. 1, § 16 (1974)]; Sixth Amendment, U.S.Const. The same considerations which underly this constitutional mandate compel a conclusion that upon conviction a defendant is entitled to know the full consequences of the verdict within a reasonable time. Since the enhancement-of-penalty provision is incidental to the latest conviction, the proceeding to sentence under that provision should not be unduly delayed. Cf. C.Cr.P. 874 * * * ”

The record indicates that the multiple offender bill in this case was filed on January 20, 1978, a year and ten days after defendant entered his guilty plea. Although sentencing was first set for October 31, 1977, it was postponed because the trial court had not yet received the pre-sentenc-ing report, ordered January 10, 1977, the day defendant’s plea was entered. On December 2, 1977, sentencing was again deferred because the defendant had not yet been returned from Angola. Nevertheless, the state was aware of defendant’s prior convictions on the date the guilty plea was entered, as defendant informed the trial court (with an assistant district attorney present representing the state) of his prior convictions when he was questioned prior to the court’s acceptance of his guilty plea. The state offers no explanation for the delay in filing the bill.

As we noted earlier, time for filing a multiple offender bill begins to run when the state is informed of defendant’s prior convictions. State v. Bell, supra; State v. McQueen, supra.

The date of sentencing, delayed twice for cause in this matter, has no bearing on the timeliness of the multiple offender bill. Hence, the failure of the state to file the bill for over a year may be unreasonable, even though a sentencing delay for the same period of time may be justified.

The delay in the present action was unreasonable. The state’s failure to timely file the bill denied him his right to know, within a reasonable time, that his prior offenses would be used to enhance his sentence. Also, since the state had notice of the prior convictions at the time the guilty plea was entered, it could easily have filed the bill shortly thereafter. The unexplained nature of the delay further indicates that no justifiable reason existed for not filing the bill earlier.

II.

If we do not quash the enhanced punishment accorded the defendant, then at the least his plea of guilty to the offense should be set aside. At the Boykin examination prior to entering the plea, he was informed that the sentence he could receive was nine years, whereas actually he received an 18-year sentence due to the enhanced punishment.

Recent cases decided by this court have held that defendant need not be informed when he enters a guilty plea that it may later serve as the basis of an enhanced sentence on a future conviction. State v. Jackson, 362 So.2d 1082 (La.1978); State v. Hoffman, 345 So.2d 1 (La.1977).

The defendant notes in his brief that in accordance with the Federal Rules of Criminal Procedure, Rule 11, Federal courts must inform a defendant of the maximum and minimum penalties before excepting the plea or the plea may be nullified. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). At least one federal court has held that the Rule 11 requirement is not constitutionally based. See Kelleher v. Henderson, 531 F.2d 78 (2d Cir., 1976). The Second Circuit, however inferred, in that case, that where defendant is misinformed as to the maximum sentence, and where he may not have entered a guilty plea had he known the maximum sentence, a constitutional question may be raised, as the plea may not have been intelligently entered. 531 F.2d at 81-82.

Additionally, the American Bar Association for Criminal Justice Standard 1.4[c][ii] (1968), recommends that a court should not accept a guilty plea without informing the accused of any mandatory minimum sentence and the possibility of enhanced punishment. See also James E. Bond, Plea Bargaining and Guilty Pleas, (1978), Section 3.39: “There is nearly universal agreement that the defendant must know the minimum and maximum sentence that the judge may impose.”

Finally, as noted by defendant, some state courts have held that information regarding maximum sentence is required to be disclosed to defendant by the Boykin decision. See Carter v. State, 291 Ala. 83, 277 So.2d 896 (1973); People v. Troyan, 21 Ill.App.3d 375, 315 N.E.2d 335 (1974); White v. State, 222 Kan. 709, 568 P.2d 112 (1977); Fletcher v. Cupp, 1 Or.App. 467, 463 P.2d 365 (1969). See also concurring opinion in People v. Mauch, 397 Mich. 646, 247 N.W.2d 5 (1976).

Nevertheless, while Boykin may not require the trial judge always to advise defendant of the maximum sentence before excepting a guilty plea, the facts of this case require that this plea be nullified if the state’s multiple bill is allowed to stand: When the defendant entered his plea, he was misinformed as to the maximum sentence he could receive.

The transcript indicates that defendant was under the impression that the most serious consequence of his plea would be nine years imprisonment:

THE COURT: You understand that your exposure sentence wise is nine years at hard labor and that phrase at hard labor means necessarily to the Department of Corrections and of course the Department of Corrections administers all the state penal institutions as distinguished from the parish jail.

The trial court thus (no doubt unintentionally) reinforced defendant’s prior understanding of his maximum sentence, despite the court’s knowledge of the prior convictions. Consequently, the defendant’s guilty plea was not intelligent, since it was accepted under the misapprehension that it could only result in the nine year sentence.

No doubt, the defendant’s trial attorney should have informed him of the possibility of being billed as a multiple offender. Nevertheless, counsel’s failure to do so does not moot the issue. Our constitutions and the jurisprudence place an affirmative duty on the trial court to make sure that a guilty plea is voluntarily and intelligently entered.

Accordingly, the plea of guilty must be set aside if we do not quash the enhanced punishment proceeding.

       Chief Judge L. Julien Samuel participated in this decision as Associate Justice Ad Hoc, sitting in the place of Chief Justice Sanders, retired.

      . Defendant was apparently sent to Angola pri- or to sentencing in this matter because his conviction on this charge constituted a violation of his parole agreement from a prior conviction.


author: DIXON, Justice.

text:
    Succession of Bee Owen THOMPSON, widow of Frank J. Salvatore.
    No. 62932.
    Supreme Court of Louisiana.
    Jan. 29, 1979.

      Joseph S. Casey, Casey, Babin & Casey, New Orleans, for Robert B. Thompson.
    Ross P. LaDart, William L. Dehner, Harvey, for Joel Salvatore wife of Edgar Eli Smith, Jr.
   DIXON, Justice.

In this decision we determine whether the state may constitutionally prohibit an acknowledged illegitimate child from receiving a legacy from his mother if she has other legitimate children. C.C. 1483.

Bee Owen Thompson, the widow of Frank J. Salvatore, died October 2, 1976 in Orleans Parish. By olographic testament she left all her property to her two children, Joel Salvatore Smith, her legitimate daughter, and Robert Thompson, an acknowledged natural child. Joel Smith thereafter brought suit in the Civil District Court for Orleans Parish to have Robert Thompson declared incapable of receiving the legacy on the basis of Article 1483 of the Civil Code:

“Natural children or acknowledged illegitimate children can not receive from their natural parents, by donations inter vivos or mortis causa beyond what is strictly necessary to procure them sustenance,' or an occupation or profession which may maintain them, whenever the father or the mother who has thus disposed in their favor, leaves legitimate children or descendants.
Those donations shall be reducible in cases of excess, according to the rules laid down under the title: Of Father and Child.”

In a judgment entered on July 15, 1978, the district court dismissed the plaintiff’s petition and in effect declared Article 1483 to violate the Louisiana Constitution of 1974. Under Article 5, § 5(D)(1) of the 1974 Constitution, such a judgment is appealable directly to this court.

On appeal the defendant argues that Article 1483 violates Article 1, § 3 of the Louisiana Constitution of 1974 which prohibits arbitrary, capricious or unreasonable discrimination on the basis of birth:

“No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.”

Although plaintiff has argued that the reference to birth may refer to national origin, both proponents and opponents of the provision at the Constitutional Convention noted that Article 1, § 3 included within its scope unreasonable discrimination based on illegitimacy. Plaintiff has also contended that the purpose of the provision was merely to abolish discrimination on the basis of birth with respect to state programs providing aid to dependent children. However, a review of the proceedings of the convention demonstrates that the entire range of discriminatory practices based on illegitimacy was encompassed by the section. Therefore, it is clear that the Louisiana Constitution requires an examination of any law which discriminates on the basis of birth to determine whether the statutory distinction is arbitrary, capricious or unreasonable.

The equal protection guarantee of Article 1, § 3 requires state laws to affect alike all persons and interests similarly situated. However, persons or interests may be classified differently by the legislature if a rational basis exists for the differentiation which is reasonably related to a valid governmental purpose. Succession of Robins, 349 So.2d 276 (La.1977); Williams v. Williams, 331 So.2d 438 (La.1976); Petition of Sewerage and Water Board of New Orleans, 257 La. 716, 243 So.2d 809 (1971). See also Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). The inquiry must therefore be to determine what valid state purpose is served by a statute which prohibits an acknowledged illegitimate child from being a legatee merely because his parent has legitimate descendants.

In Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971), the United States Supreme Court considered the constitutionality of Article 919 of the Civil Code which excludes an acknowledged illegitimate child from the intestate succession of the father except as against the state and strangers. In declining to invalidate the statute as violative of the equal protection clause of the Fourteenth Amendment, the court found merit in the state’s interest in promoting family life and in controlling the distribution of property within the state to enhance the stability of land titles. These same purposes were advanced in Trimble v. Gordon, supra, and in Succession of Captain, 341 So.2d 1291 (La.App.1977). However, as was noted by the dissenting judge in Succession of Captain, “there is no connection between a prohibition against a donation mortis causa to an illegitimate child and land titles. ... A specific parental bequest by will, as attempted by Captain, the deceased, raises no problem with land titles.” 341 So.2d at 1296 (Watson, J., dissenting). Therefore, the statute must be evaluated as a means to advance the legislative goal of promoting family life by discouraging illegitimacy.

Although the Supreme Court apparently accepted in Labine the argument that family life was protected and strengthened by discriminating against illegitimates in intestate successions, in the more recent case of Trimble v. Gordon, supra, the court stated that an Illinois statute which discriminated against illegitimates bore “only the most attenuated relationship to the asserted goal” (430 U.S. at 768, 97 S.Ct. at 1464, 52 L.Ed.2d at 39) of encouraging legitimate family relationships. The court reasoned that persons will not shun illicit relationships because any possible (and, frequently, undesired) offspring may be disadvantaged by their parents’ disregard of social dictates. The proposition is clearly theoretically tenuous and is belied by public health statistics which demonstrate that the rate of illegitimate births has more than doubled over a recent twenty year period; approximately 20% of all children born today in Louisiana are illegitimate.

Furthermore, one must question the reasonableness of a statutory scheme which in effect “punishes illegitimate children for the misdeeds of their parents.” Labine v. Vincent, 401 U.S. at 557, 91 S.Ct. at 1030, 28 L.Ed.2d at 304 (Brennan, J., dissenting). Although family life and the moral perspective of society have greatly changed since Article 1483 became a part of our law, there has been little significant change in the way the parent-child relationship is regulated. The law continues to burden illegitimate children with disabilities, while those responsible for the breach of social and moral rules are unaffected. Unlike most states, Louisiana does not consider adultery and fornication as crimes. The anomalous situation therefore exists in which the parties responsible for the perceived breach of social rules are not punished, and those wholly innocent for the condition of their birth bear the full force of society’s disapproval. In light of these considerations, Article 1483 violates the constitutional prohibition against arbitrary, capricious or unreasonable discrimination on the basis of birth.

The plaintiff has argued that the decision in Succession of Robins, supra, is distinguishable from the instant case because Bee Owen Thompson could have bequeathed her property to Robert Thompson by legitimatizing him under the provisions of C.C. 200. However, the mere fact that no insurmountable barrier prevented Thompson from being capable of inheriting from his mother does not eliminate the constitutional infirmities of a statute which discriminates on the basis of birth. As the United States Supreme Court noted in Trimble v. Gordon:

“ . . . Traditional equal protection analysis asks whether this statutory differentiation on the basis of illegitimacy is justified by the promotion of recognized state objectives. If the law cannot be sustained on this analysis, it is not clear how it can be saved by the absence of an insurmountable barrier to inheritance under other and hypothetical circumstances. Hard questions cannot be avoided by a hypothetical reshuffling of the facts . . . .” 430 U.S. at 773-774, 97 S.Ct. at 1467, 52 L.Ed.2d at 41-42. See also Labine v. Vincent, 401 U.S. at 551, 91 S.Ct. at 1027, 28 L.Ed.2d at 300, n. 17 (Brennan, J., dissenting).

For the reasons assigned, we affirm the judgment of the district court which granted judgment in favor of the defendant and which held Article 1483 of the Civil Code unconstitutional in that it denied the decedent’s acknowledged illegitimate son the capacity to receive the legacy intended for him in his mother’s testament, all at plaintiff’s cost.

SUMMERS, C. J., and MARCUS and CULPEPPER, JJ., dissents.

       Chief Judge William A. Culpepper participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Joe W. Sanders, Retired.

      . Defendant also contends in the alternative that Article 1483 violates Article 1, §§ 2 and 4 of the Louisiana Constitution of 1974. Deciding the case on other grounds, we do not reach the merits of these arguments.

      . State of Louisiana, Constitutional Convention of 1973, Verbatim Transcripts (39 Volumes; 1973-1974) at 12 Proceedings (38th day, August 29) 57, 62, 63, 76, 90. See also, Succession of Robins, 349 So.2d 276 (La.1977).

      . Id. at 62-63 Mr. Roy: “We mention birth because, in the past the state has discriminated against legitimate and illegitimate children with respect to aid to dependent children. We felt that we wanted that clearly understood, that in certain categories, whether you’re legitimate or illegitimate, should not allow state discriminatory practices against you.”

      . Id. at 90 Mr. Amette: “Mr. Roy said that it meant you can’t discriminate between legitimate and illegitimate children. I think it’s the State’s right and duty that it should have laws that discriminate against legitimate and illegiti-mates, and this has been recognized by the U. S.Supreme Court for the simple reason that we want to promote family unity. We want to promote marriages. We want to discourage illegitimate children.”

      . “ . . . It may be possible that some of these choices are more ‘rational’ than the choices inherent in Louisiana’s categories of illegitimates. But the power to make rules to establish, protect, and strengthen family life as well as to regulate the disposition of property left in Louisiana by a man dying there is committed by the Constitution of the United States and the people of Louisiana to the legislature of that State. ...” 401 U.S. at 538, 91 S.Ct. at 1021, 28 L.Ed.2d at 294.

      . “ . . we have expressly considered and rejected the argument that a State may attempt to influence the actions of men and women by imposing sanctions on the children bom of their illegitimate relationships.” Trimble v. Gordon, 430 U.S. at 769, 97 S.Ct. at 1464-1465, 52 L.Ed.2d at 39. See also, Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 173, 92 S.Ct. 1400, 1405, 31 L.Ed.2d 768, 778 (1970), where the court rejected the argument that “persons will shun illicit relations because the offspring may not one day reap the benefits of workmen’s compensation.”

      . In 1953 the total number of illegitimate births in Louisiana was 6871, or 81.1 for every thousand live births. Division of Public Health Statistics, Louisiana State Department of Health, Statistical Report of the Division of Public Health Statistics, 16 (1953). In 1963 this number increased to 8666 illegitimate births, or 101.6 per thousand live births. Division of Public Health Statistics, Louisiana State Department of Health, Statistical Report of the Division of Public Health Statistics, 22 (1963). In 1973 illegitimate births had risen to 12,285, or 185.0 per thousand live births. Office of Public Health Statistics, Louisiana Department of Health and Human Resources, 1973, Vital Statistics of Louisiana, 25 (1973), cited in Note, 38 La.L.Rev. 189 (1977).

      . Lorio, Succession Rights of Illegitimates in Louisiana, 24 Loy.L.Rev. 1, 2 n. 13 (1978).

      . Alabama Crim.Code § 13A-13-2 (adultery); Alaska Statutes § 11.40.040 (cohabiting in a state of adultery or fornication) and § 11.40.010 (adultery); Arizona R.S. § 13-1408 (adultery); Colorado R.S. § 18-6-501 (adultery); GSA Connecticut § 53a-81 (adultery); District of Columbia Code § 22-1002; Florida S.A. Title 44, § 798.01 (living in open adultery), 798.02 (lewd and lascivious behavior) and 798.03 (fornication); Georgia Code Ann. § 26-2009 (adultery) and 26-2010 (fornication); Idaho Code §§ 18-6601 (adultery), 18-6603 (fornication) and 18-6604 (lewd cohabitation); Illinois Ann. Stat. 38 § 11-7 (adultery) and 38 § 11-8 (fornication); Kansas S.A. § 21-3507 (adultery); Ann.Code of Maryland, Art. 27 § 4 (adultery); Massachusetts G.L.A., chapter 272 § 14 (adultery), § 16 (lascivious cohabitation) and § 18 (fornication); Michigan S.A. § 28.567 [M.C.L.A. § 750.335] (lewd and lascivious cohabitation); Mississippi Code Ann. Title 97 § 29-1 (adultery and fornication — unlawful cohabitation); Missouri R.S. § 563.150 (adultery and gross lewdness); R.S. Nebraska 1977 Supp. § 28-704 (adultery); New Hampshire R.S. chapter 645.3 (adultery); New Jersey S.A. chapter 2A:88-1 (adultery) and 2A: 110-1 (fornication); New Mexico Statutes 1953 chapter 40A-10-2 (unlawful cohabitation); New York Penal Law § 255.17 (adultery); G.S. of North Carolina § 14-184 (fornication and adultery); North Dakota Century Code 121-20-08 (fornication), 12.1-20-09 (adultery) and 12.1-20-10 (unlawful cohabitation); Oklahoma S.A. 21 § 871 (adultery); G.L. of Rhode Island 11-6-2 (adultery) and 11-6-3 (fornication); Code of Laws of South Carolina § 16-15-60 (adultery or fornication); Utah Criminal Code 76-7-103 (adultery) and 76-7-104 (fornication); Vermont S.A. 13 § 201 (adultery); Code of Virginia § 18.2-344 (fornication) and § 18.2-365 (adultery); West Virginia Code § 61-8-3 (adultery and fornication; Wisconsin S.A. 944.15 (fornication) and 944.16 (adultery); Wyoming Statutes 1957 § 6-86 (adultery and fornication). The legislatures of Hawaii, Indiana, Iowa, Maine, Ohio, Pennsylvania, South Dakota and Washington have recently repealed similar provisions.


author: SUMMERS, Chief Justice. TATE, Justice,

text:
    STATE of Louisiana v. Cynthia A. MOSES.
    No. 62559.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Rehearing Denied March 5, 1979.

      Wendell E. Tanner, Slidell, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Julian J. Rodrigue, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.

      Dixon, J., would grant a rehearing.

   SUMMERS, Chief Justice.

The Grand Jury of St. Tammany Parish jointly indicted Cynthia Moses and James Stacks for the January 21, 1977 murder of James Moses, the husband of Cynthia Moses. La.Rev.Stat. 14:30 (1976). On the State’s motion James Stacks was ordered severed from the indictment and the State proceeded to trial against Cynthia Moses. La.Code Crim.Pro. arts. 704-706. The jury found her guilty of first degree murder. After a sentence hearing held pursuant to Articles 905-905.9 of the Code of Criminal Procedure, the jury recommended life imprisonment. The trial judge sentenced her accordingly. Defendant appeals her conviction and sentence, urging nine of ten assignments of error.

Evidence at the trial showed that on January 21,1977, one Maurice Hodgson, a resident of Slidell was led to a site in the woods by the report of Cynthia Moses over a C.B. radio that a shooting had just occurred. Upon arrival at the scene Hodgson found Cynthia Moses, apparently distraught, beside the body of her husband James Moses. The victim had been shot by a high powered rifle.

An investigation ensued and as a result Cynthia Moses and James Stacks were arrested on February 2, 1977 and both were charged with first degree murder of James Moses.

It is the State’s theory of the case that defendant and her paramour James Stacks planned the murder. The motive was twofold: to eliminate James Moses to permit the uninhibited continuation of the love affair of the conspirators, or to free Cynthia to marry Stacks; to permit the collection of $137,000, the proceeds of a policy insuring the life of James Moses.

To accomplish this design Cynthia lured her husband into the woods ostensibly for the purpose of lovemaking, the location having been the site of an amorous encounter before. Stacks was waiting there with a rifle to shoot the victim. However, when he lost his courage and could not pull the trigger, Cynthia went over to Stacks’ hiding place, seized the weapon and fired the fatal shot.

The State’s chief witness was Stacks himself who gave the police a statement detailing Cynthia’s involvement in the crime in return for a plea bargain in which he agreed to plead guilty to manslaughter. On the strength of this statement, the testimony of police officers who overheard conversations between Stacks and defendant prior to their arrest, and the testimony of Stacks’ former wife concerning declarations made by the defendant before the killing that she would either get a divorce from the victim or kill him, the State brought the case to trial.

Assignments 1 and 9: Before Stacks was severed from the indictment and prior to trial, he filed a motion to suppress testimony concerning a conversation between himself and defendant which had been overheard by officers of the Sheriff’s office and the city police of Slidell. He was joined in this motion by the defendant. The motion was denied; and when testimony concerning the conversation was introduced at trial, the defense objected and those rulings are assigned as error.

Although no written motion appears in the record, the transcript indicates that the prosecutor acknowledged the fact that such a motion had been filed, and both the prosecutor and defense counsel seemed to agree to the issue presented by the motion to suppress.

At the hearing on the motion to suppress the testimony indicated that, on the night of January 28, 1977, during the course of their investigation into the death of James Moses, five officers of the Sheriff’s office followed Cynthia Moses and James Stacks, who were traveling in separate cars until they met at a service station, at which time Cynthia entered Stacks’ car. They then drove to the Star Motel in Lacombe, Louisiana. Stacks registered, and he and Cynthia entered a room there.

Not being aware of the destination of the suspects, the officers had no opportunity to obtain a search warrant. Therefore they borrowed a key from the motel manager, who opened the door to an adjoining room which they entered. In addition, one of the officers remained in the motel office which adjoined the room occupied by Stacks and the defendant. From that vantage point the officer could overhear the conversation of Stacks and defendant through a closed door connecting the office to the room occupied by defendant and Stacks. In addition, other officers entered the adjoining room to which they had been admitted by the motel manager, where they too could overhear the conversation of defendant and Stacks.

No mechanical or electronic listening device was used by the officers. The conversation they overheard was audible without that assistance. At times the suspects raised their voices making their words more distinct and the need for listening devices unnecessary. Generally the officers stood near the wall and listened. At least two said they put their ears to the wall. One of the officers made notes of the conversation and with the assistance of the other officers later prepared a written report setting forth the substance of the conversation between Stacks and Cynthia Moses.

After 35 to 45 minutes the officers knocked on the door of the room occupied by defendant and Stacks, identified themselves, advised the occupants of their Miranda rights, and asked them to come to the sheriff’s office for questioning. They were not placed under arrest, but accompanied the officers voluntarily, Stacks driving his own vehicle and Cynthia riding with one of the officers. After questioning, they were released and were arrested five days later.

At trial, Sergeant Bower testified to the substance of the motel conversation between Stacks and Cynthia. She feared ‘ Stacks had been spotted at the scene; that “only she knew he had pulled the trigger”; that they would divide the insurance proceeds in different bank accounts to confuse the police; and that the money would eventually go to the remodeling of defendant’s home.

Defendant contended at the hearing that listening to the conversations amounted to a warrantless search and seizure without probable cause in violation of the Fourth and Fifth Amendments to the United States Constitution and the protection afforded by Article I, Section 5, of the Louisiana Constitution.

The argument made in support of this contention is based upon the decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), where the United States Supreme Court held that an officer’s warrantless bugging of defendant’s conversation in a phone booth was a violation of defendant’s expectation of privacy, therefore the conversation overheard and the fruits thereof were suppressed.

Here, however, no electronic device was used to overhear the conversation of the suspects and no intrusion or entry was made into the room occupied by them. Other courts considering this question have given persuasive effect to this distinction and have concluded that this kind of unaided eavesdropping does not violate Katz. United States v. McLeod, 493 F.2d 1186 (7th Cir. 1974); United States v. Fisch, 474 F.2d 1071 (9th Cir. 1973); United States v. Llanes, 398 F.2d 880 (2d Cir. 1968); United States v. Perry, 339 F.Supp. 209 (D.C.S.D. Cal.1972). In Llanes, for example, narcotics agents stationed themselves outside the door to defendant’s apartment. The door was not entirely closed, and conversation inside the apartment was clearly audible in the hallway. The Second Circuit refused to rationalize the case under the holding in Katz:

“[Ajppellant overlooks an important qualification placed upon the constitutional protection outlined in Katz, supra, which was an electronic eavesdrop case. In noting that the ‘Fourth Amendment protects people, not places,’ Justice Stewart, writing for the majority, also observed that ‘What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.’ 389 U.S. at 351, 88 S.Ct. at 511 (emphasis supplied). We believe that conversation carried on in a tone of voice quite audible to a person standing outside the home are conversations knowingly exposed to the public. Compare the statement in the majority opinion in Hoffa v. United States, 385 U.S. 293, 303, 87 S.Ct. 408,17 L.Ed.2d 374 (1966), quoting from the dissenting opinion of Mr. Justice Brennan in Lopez v. United States, 373 U.S. 427, 465, 83 S.Ct. 1381,10 L.Ed.2d 462 (1963): ‘ “The risk of being overheard by an eavesdropper ór betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak.” ’ In the same dissent Mr. Justice Brennan observed that eavesdropping and disguise ‘do not so seriously intrude upon the right of privacy’ as does electronic eavesdropping, and that the ‘risk’ referred to above changes crucially ‘as soon as electronic surveillance comes into play.’ 373 U.S. at 465-466, 83 S.Ct. at 1402. In contrast to conventional eavesdropping, he noted, ‘there is no security from that kind of [electronic] eavesdropping, no way of mitigating the risk, and so not even a residuum of true privacy.’ Id. at 466, 83 S.Ct. at 1402. (emphasis supplied). Thus appellant’s reliance upon Katz is misplaced and we hold that appellant’s Fourth Amendment rights were not invaded.” 398 F.2d at page 884.

Katz and its progeny are basically concerned with the evils of electronic eavesdropping and the overwhelming intrusion on privacy the vast panoply of scientific listening devices create. That is not the situation in the case before us. There was in this case no search or seizure and no violation of defendant’s right of privacy.

These assignments are without merit.

Assignments 3, 4, 5 and 6: After his arrest and indictment for first degree murder, Stacks gave a statement on January 10, 1978 in the presence of his attorney disclosing the part he played in the murder of James Moses.

He recited that Cynthia first mentioned killing her husband before Christmas 1976, asking him if he knew of anyone who would kill her husband for $4,000. When Stacks said he did not, she asked him if he would do it. He refused and the subject was dropped for some time. Later, after a plan to kill James Moses near Winterhaven, Florida, fell through, they agreed to kill him at a secluded spot in the woods by the lake near Slidell. When the appropriate time arrived, Cynthia telephoned Stacks to meet her and her husband at the prearranged site on January 21, 1977. Stacks repaired to the site armed with a rifle and took his position behind cover of bushes. Cynthia and her husband arrived at the appointed time, spread a blanket on the ground and drank beer for a while. When Stacks failed to shoot the husband, Cynthia excused herself on the pretense that she needed to relieve herself. She then sought out Stacks and, when he told her he couldn’t do it, she took the gun and shot her husband. Stacks then fled, leaving Cynthia with the victim.

In addition he disclosed that on a previous occasion, Cynthia had planned to have her husband killed after she learned of the amount of insurance her husband’s beneficiary would receive in the event he was killed, but the hired killer was arrested for selling drugs and sent to Angola, frustrating that plan.

At the trial Stacks was called as a witness for the State. He testified that he had been charged with the murder of James Moses and had agreed to plead guilty to manslaughter and receive a sentence of eighteen years in the penitentiary at hard labor. He then denied that Cynthia had ever discussed disposing of her husband with him. When asked if he remembered that statement of January 10, 1978 he said he did but it was false. He denied he was present when James Moses was killed. He did admit however that he had traded his shotgun for a rifle with Batten and that he had thrown it into a small lake after the shooting, thereafter leading the police to the location where the gun was retrieved by a diver. He admitted making a statement to the effect that James Moses was killed with that rifle. He also admitted that he had told the prosecutor that morning that the statement was correct, and had reaffirmed its correctness just fifteen minutes before taking the witness stand. According to his testimony he had never before told anyone that this statement, which was exhibited to him on the witness stand, was false. And, he said, he made the false statement under threats made by a Deputy Sheriff and Stacks’ own attorney that he would receive the death penalty.

He again testified that he remembered the statement exhibited to him by the prosecutor. When the prosecutor proceeded to introduce the contents of the statement to impeach Stacks’ testimony on the grounds of surprise, defense counsel objected and the objection was overruled. The contents of the statement were then read to Stacks who admitted that he had made the statement as written.

By repudiating his prior statement and denying the truthfulness of the facts and circumstances therein relating to the murder, Stacks, who was the State’s principal witness, testified upon a material matter against the State and in favor of the defendant. By doing so he took the State by surprise and thereby opened the door for the State to impeach his testimony by the prior inconsistent statement. La.Rev.Stat. 15:487-88; State v. Calloway, 324 So.2d 801 (1976); State v. Jackson, 309 So.2d 318 (1975); State v. McMellon, 295 So.2d 782 (1974).

This assignment of error is without merit.

Assignment 4: The defense contends that the trial judge committed error in allowing a police officer to testify that, in his opinion, a witness’ answers to questions during interrogation were responsive.

The issue arose while Sergeant Drennan was being questioned by the prosecutor as a State witness under redirect examination. He had previously testified that he viewed the wounded, perhaps dead, victim at the scene, and that Cynthia was there at the time, very upset.

On redirect examination he testified that at the prosecutor’s direction he took the statement of January 10,1978 from Stacks. He testified that Stacks said he wanted to make a statement to tell the truth and “get it off his chest.”

He was then asked if Stacks told him that he, Stacks, had been threatened, to which he answered, “No, sir, he did not.” Asked if Stacks told him that he was afraid of the electric chair, Drennan replied that he did not. He also testified that Stacks did not say that Detective Rodriguez and Stacks’ attorney told Stacks he was going to “get the electric chair.”

The prosecutor then asked, “In your opinion, did the answers seem to be responsive to the questions you asked him?” Defense counsel objected to the prosecutor’s effort to elicit opinion testimony, and the objection was overruled.

As the prosecutor argued, Detective Drennan was competent to testify whether the statement was free and voluntary and responsive, or compelled and evasive. While the question was phrased as an inquiry into the witness’ opinion, in truth the prosecutor was seeking the witness’ evaluation of the witness’ attitude and credibility. As the experienced law officer interrogating Stacks, Detective Drennan was competent to form this judgment without being qualified as an expert. La.Rev.Stat. 15:464-67.

Previously Stacks had testified that he gave the answers freely and voluntarily, but that they were false.

Assignment 5: Later in his testimony Detective Drennan was asked whether Stacks seemed to be sincere when he said, “I thank God that I didn’t have the courage to pull the trigger.”, a declaration included in the January 10, 1978 statement. Although Drennan answered in the affirmative before the defense could object, defense counsel again objected that the witness could not give opinion testimony. The trial judge overruled the objection.

Here again the answer called for did not involve a knowledge obtained by means of special training or experience. La.Rev.Stat. 15:464. All the witness was called upon to answer was the common sense inference to be drawn from his observation of Stacks’ demeanor and credibility, a proper question under the circumstances.

Assignment 6: In later examination of Drennan the prosecutor asked him, “Prom what Jim Stacks told you in the statement and from what he showed you the same afternoon (referring to evidence of the crime in the field), did what he showed you coincide with what he told you in the statement?” Drennan replied, “Yes, sir, it did.” He was then asked, “Did it sound to you like a statement which was being made up?” Defense counsel objected that the question called for the witness’ opinion. The objection was overruled and the ruling was assigned as error. This assignment lacks merits for the same reasons set forth in assignments 3, 4 and 5. It should be added that the experience of this officer in such matters also qualified him to draw these conclusions.

Assignment 7: Melba Whittennauer had formerly been married to Stacks. She was asked by the prosecutor whether Stacks and Cynthia had been going together prior to the murder of James Moses. The question was objected to after she answered in the affirmative. The objection was based upon the contention that no foundation had been laid, and “there should be inquiry as to how she acquired the knowledge as a foundation.” Whereupon, the trial judge instructed the prosecutor to lay a foundation.

Thereafter, in response to questions, she testified that prior to the killing of James Moses she was working at George’s Lounge in Slidell, a place frequented by Cynthia and Stacks. They were together between Christmas and January 1977. Prior to Christmas 1976 she heard Cynthia say that she wanted a divorce from her husband. After the testimony defense counsel requested that the jury be removed.

Out of the presence of the jury defense counsel argued that he had received no notice that the prosecutor would seek to establish inculpatory statements of the defendant. In reply the prosecutor argued that the testimony did not involve an incul-patory statement, because it did not refer to an offense already committed, but did involve a statement against interest—an exception to the hearsay rule.

The trial judge ruled that the question did not seek, and the answer was not, an inculpatory statement, and as a statement against interest the response was an exception to the hearsay rule. Defense counsel assigns the ruling as error.

Questioning by the prosecutor then continued, at which time the witness testified that Cynthia had said she would prefer to see her husband dead than to divorce him because she wanted the house and the children.

The statements were admissible as proof of motive. State v. Sutfield, 354 So.2d 1334 (La.1978). Section 446 of Title 15 of the Revised Statutes provides that “When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent . . . .” (emphasis added). Thus testimony indicating that the accused had threatened the victim prior to the offense has been approved in State v. Lem-ing, 217 La. 257, 46 So.2d 262 (1950). There the Court said: “[t]he purpose of [this kind of] evidence [is] to show motive for the killing on the part of the defendant and the evidence of prior acts, declarations, and threats of the accused, though no part of the res gestae, is admissible when it substantially tends to establish motive or intention of the accused to commit the crime.” Similarly, testimony as to marital disaffection has been rationalized as evidence of motive. State v. Flood, 301 So.2d 637 (La. 1974).

Assignment 8: Melba Whittennauer was also asked by the prosecutor if her former husband, Stacks, had ever threatened her about testifying in the case. She answered that he had threatened her in a letter about a month before the trial. When asked what he said in the letter defense counsel objected on the grounds of hearsay, the objection was overruled, and the witness answered that Stacks wrote that he would “go to the government,” and that if it was the last thing he would see, he would see her in Angola. He closed the letter with, “See you in Angola. Jim.”

At the time of the threats Stacks was a codefendant, for he had not yet been severed. Evidence of such a threat by a person who has a direct connection with the defendant, as Stacks had with Cynthia Moses his one-time codefendant, was admissible. State v. Sawyer, 350 So.2d 611 (La. 1977). In addition, the threats were relevant as rebuttal evidence to Stacks’ recantation of his statement outlining the facts and circumstances surrounding the murder of James Moses. See State v. Hill-man, 298 So.2d 746 (La.1974). This assignment of error is therefore without merit.

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

DIXON and DENNIS, JJ., concur.

TATE, J., concurs and assigns written reasons.

BLANCHE, J., not participating.

TATE, Justice,

concurring.

At the moment, the writer is not prepared to find that the errors to be noted were so prejudicial as to require reversal.

Nevertheless, Assignments 4, 5, and 6 represent clearly improper attempts by the state to bolster the credibility of the witness Stacks’ prior statement, which (inconsistent with his testimony at the trial), implicated the defendant in the crime. In connection with proof of this prior out-of-court statement, the police officer Drennan was on three occasions permitted, over defense objection, to reply to prosecution questions as to whether the defendant was sincere in his earlier statement (the deputy replied that he was) and to whether the statement “sound[ed] to you like a statement which was being made up?” (the officer replied it did not), etc.

The majority opinion holds that the police officer was qualified by his police experience to draw these conclusions.

This is an erroneous statement of legal principle. A witness can testify only to facts within his knowledge, but he cannot testify (based solely on his impression) to his evaluation of the subjective motive or credibility of another witness who performed an act or made a statement. See, e. g., State v. George, 346 So.2d 694, 702 (La. 1977) and decisions there cited.

The witness (Drennan) is competent to testify that the earlier witness (Stacks) had made an earlier statement inconsistent with his trial testimony; but it is for the jury, not for the witness Drennan, to determine whether Stacks’ court testimony is untruthful.

In the present instance, the earlier witness (Stacks) had admitted making the pri- or inconsistent testimony. Therefore, the state could not thereafter introduce in full his prior inconsistent statement. The only legal purpose for allowing introduction of the fact of the prior inconsistent statement is to show the present statement is false (and not to prove the substantive contents of the prior statement); therefore, the introduction into evidence of the prior statement, after the witness distinctly admits making it, may be reversible. See La.R.S. 15:493; State v. Mosely, 360 So.2d 844 (La. 1978). See also State v. Williams, 331 So.2d 467 (La.1976).

On cross-examination Stacks distinctly admitted each detail of the prior statement. Consequently, the subsequent introduction, through the police witness, of the entire statement again for a second time was improper under the statute and jurisprudence.

The defendant did not, however, object to this introduction for a second time of the prior out-of-court statement by Stacks. Her objection was made only in the cross-examination of Stacks and contested, rather, the use of any impeachment at all by the state of its own witness.

Once we concede (as I do) that the state was entitled to attack the testimony of Stacks, although its own witness, on the grounds of surprise or hostility, then reversible error was not committed by the re-introduction of the prior statement due to the failure of the defendant to object.

However, Assignments 4, 5, and 6, arising during the re-introduction testimony of the police witness, concern the state’s rather blatant efforts above-noted to bolster the credibility of Stacks’ out of court statement by having the police witness evaluate them as truthful. They do present a substantial issue of reversible prejudice, as noted above.

However, at present I am unwilling to say that the three improper questions allowed are themselves so prejudicial as to require reversal, when indeed the real prejudice resulted from the unobjected-to re-introduction in full (but without objection) of the entire contents of the prior out-of-court statement in apparent proof of the truth of their contents — whereas the law contemplates that the fact of these prior out-of-court statements (inconsistent with the trial testimony) is admissible for the restricted purpose only indicating that Stacks’ trial testimony is false.

Therefore, although with reservations, I concur.