text:
    STATE of Louisiana v. Charles R. MADUELL.
    No. 56783.
    Supreme Court of Louisiana.
    Jan. 19, 1976.
    Rehearing Denied Feb. 20, 1976.

      Bernard E. Fulghum, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

This prosecution was instituted by a bill of information filed by the District Attorney of Orleans Parish on January 6, 1975. The information charges that on December 7, 1974 Charles Maduell robbed Edward Skinner of property having a value of $10. La.R.S. 14:64. After trial by jury, Maduell was found guilty and sentenced to serve fifty years at hard labor in the custody of the Department of Corrections. Thereafter, on February 27, 1975 Maduell was charged as a triple offender • under the habitual offender statute. La.R.S. 15:529.1. A hearing was held, Maduell was found guilty, the sentence imposed on the armed robbery charge was vacated, and he was sentenced to serve 100 years at hard labor in the custody of the Department of Corrections.

Assignment No. 1

Prior to trial defendant filed a motion to recuse the trial judge alleging that he was biased, prejudiced and personally interested in the cause. The motion cites as reason therefor that the judge had, prior to his elevation to the bench, while serving as Assistant District Attorney, prosecuted defendant in another criminal charge. The matter was referred to another judge for determination. After a hearing, the motion was denied.

No evidence is referred to in connection with this hearing and, insofar as can be ascertained, the motion and minute entries reflecting the above facts are the only record available for consideration of this issue.

Defense counsel concedes in brief that the Court’s decision in State v. Laborde, 214 La. 644, 38 So.2d 371 (1949), decides an almost identical issue. There the judge was sought to be recused because, as district attorney in the past, he had prosecuted the defendant on several occasions for infractions of criminal laws. The motion to recuse was denied by the Laborde Court. The opinion quotes from State v. Doucet, 199 La. 276, 5 So.2d 894 (1942):

“The jurisprudence of this State is well-settled that if the allegations of the petition for the recusation of a judge are mere general statements of conclusions that the judge is prejudiced and biased against or hostile to the defendant because of personal or political reasons, or that if the petition does state facts which, if proved, would not constitute a legal ground for recusation, the judge who is sought to be recused may himself overrule the motion and need not refer it to another judge for trial.” Citing numerous authorities.

Defendant urges, however, that the La-borde case was decided under the Code of Criminal Procedure in effect in 1949 whereby, insofar as pertinent here, a judge could be recused only if he was “interested in the cause.” La.Code Crim.Proc. art. 303 (1928). The revision of the Code in 1966, he argues, enlarged the grounds for recu-sation by providing that a judge may be recused when he is “biased, prejudiced, or personally interested” in the cause. La. Code Crim.Proc. art. 671(1) (1966).

Undoubtedly Article 671(1) of the 1966 Code does enlarge the grounds for recusation by adding bias and prejudice to personal interest in the cause. These causes, however, must be such that the judge would be unable to conduct a fair and impartial trial, and the disqualifying bias, interest, or prejudice must be of a substantial nature.

Although the grounds for recusation are no longer limited to “interest” as it was when the Laborde case was decided, the principle expressed there that the recu-sation must be based upon more than mere general conclusory allegations remains viable and relevant to the issue.

That is what we find here: a general allegation that this judge is unable to conduct a fair and impartial trial because he acted in the capacity of assistant district attorney in matters affecting defendant many years before. Nothing in the record discloses what the judge did as assistant district attorney, what the cases referred to were about, or other facts and information which would support a finding that the judge was substantially “interested”, “biased” or “prejudiced”. Aside from the fact that an inference of bias does not follow from these facts, it is important to understand that the trial judge in this case did not decide the question of guilt or innocence—the jury having been charged with that responsibility. State v. Austin, 258 La. 273, 246 So.2d 12 (1971).

It is also contended that the decision in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), is controlling here and supports the argument that the judge’s activity as an assistant district attorney requires his recusation. In the Coolidge case the Attorney General, who served as chief prosecutor at the trial, had personally taken charge of the investigation and prosecution of a criminal case of widespread public interest. During the investigation he also, in the role of justice of the .peace, issued a search warrant to search the automobile of the accused.

The Court held that the warrant authorizing the search of the automobile was invalid on the ground of its not having been issued by a neutral and detached magistrate, and the seizure and subsequent search of the automobile could therefore not constitutionally rest upon such a warrant. It is evident that the Coolidge case is not authority here. The case does not deal with actions in the far distant past of a prosecutor turned judge on some vague charge of participation in past criminal cases against the defendant. Instead the Coolidge case involves action by the prosecutor in the very case then being prosecuted.

Nothing in this record demonstrates that a ground for recusation has support, or that, in the conduct of the trial, the judge’s conduct was anything other than fair and impartial. Defendant was not, therefore, for this reason, deprived of an impartial trial. La.Const. art. I, § 16 (1974).

Assignment No. 2

A motion to suppress evidence of identification was filed on behalf of the defendant, a hearing was held and the motion was denied. This assignment relates to that ruling.

When the police responded to the call that an armed robbery had occurred at the Harrison Avenue Pharmacy, the victim, Skinner, a pharmacist and owner of the drugstore, gave a detailed description of the perpetration of the crime. From this description the police recognized Maduell as a suspect they had previously handled. They had a photograph of Maduell in a briefcase in their automobile which they displayed to Skinner, with photographs of five other persons. Skinner identified Maduell. Two other witnesses to the crime, Ruth Verneville and Clayton Peters, said that Maduell’s photograph resembled the robber, but they could not be sure unless they saw him in person.

In the meantime other officers, who had received Maduell’s description over their car radio, located Maduell, advised him that he was a suspect and asked him to accompany them to the scene of the crime. When they arrived, within 45 minutes after the robbery, Skinner and the other witnesses identified Maduell as the robber.

It is the defense contention that instead of being brought to the scene of the crime for identification, the accused should have been exhibited to the pharmacist and the other witnesses in a police lineup, since Skinner had already identified Maduell, and two other witnesses had made tentative identifications in a photographic lineup. The procedure employed in this case is said to result in an unduly suggestive identification.

On a number of occasions this Court has approved in-field identifications closely associated in time with the criminal transaction. Prompt confrontations were then recognized as promoting fairness by assuring reliability and the expeditious release of innocent suspects. State v. Bland, 260 La. 155, 255 So.2d 723 (1971); State v. Richey, 258 La. 1094, 249 So.2d 143 (1971).

The claim that the photographic lineup was unduly suggestive of the suspect’s infield identification is not supported by the facts of this case. A presumption of impermissible suggestion does not arise under these circumstances, and no other facts have been pointed out to support the contention.

Moreover, Skinner’s in-court identification of Maduell had its source independent of these out-of-court identifications. Skinner had known Maduell for some time prior to the robbery, although he had not seen him for a while. Maduell and his family had lived in the neighborhood and patronized the drugstore. While the robbery was in progress, Skinner was in close contact with Maduell for about five minutes, and during much of this time the accused’s face was uncovered.

To a lesser extent, the same is true of the witnesses Peters and Verneville. Peters and Verneville observed Maduell during the entire time he was in the drugstore. Thus, assuming that the out-of-court identifications were tainted, the independent source of the in-court identifications were sufficient to permit identification free of the alleged taint arising from the out-of-court identification. Under the totality of these circumstances nothing occurred which was conducive to irreparable mistaken identification, or unduly affected the reliability of the identification. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L. Ed.2d 401 (1972); State v. Kirkland, 260 La. 1011, 257 So.2d 693 (1972); State v. Richey, 258 La. 1094, 249 So.2d 143 (1971); State v. Amphy, 259 La. 161, 249 So.2d 560 (1971).

Another contention made in connection with this assignment of error is that Section 13 of Article I of the Constitution of 1974 requires that

“When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel.”

As applied to this case, the defense argues the constitution requires that Mad-uell should have been provided with counsel at his in-field indentification. This contention is made despite the settled rule established by the jurisprudence that counsel need not be furnished at pre-indictment lineups. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); State v. Kirkland, 260 La. 1011, 257 So.2d 693 (La.1972). In effect, it is asserted, that Louisiana’s Constitution imposes a standard more stringent than that established by the jurisprudence.

Clearly, at the time of the in-field identification, defendant was not “arrested”. It was not until the in-field identification was made that the arrest took place. And there is some doubt whether the facts of the case can support a finding that the defendant was “detained” within the contemplation of the constitution. He was “asked to accompany” the officers to the scene of the crime where the in-field identification took place; and “he agreed to do so.” Nevertheless, the record reflects that as soon as the officers confronted Maduell, he was told that they “were investigating an armed robbery and he was a suspect in the matter.” Also, the officers testified that “we verbally advised him of his rights.” Thus the constitutional requirement was satisfied. The constitution does not require, in addition, that counsel be provided at the in-field identification. If the defendant is fully advised of rights enumerated in Section 13 of Article I, the constitution is satisfied.

In State v. Kirkland, supra, this Court found that the exigencies of the situation make it impracticable to afford counsel to a suspect at pre-indictment identification. Where the defendant has been informed of his rights, therefore, the constitution does not abrogate the rule that counsel need not be furnished the accused at a pre-indictment lineup. That rule continues to have vitality. Furthermore, the due process rights of an accused who is identified at a pre-indictment, in-field confrontation are protected by the rule imposing the burden upon the State to establish that the identification procedure was conducted fairly and without undue suggestion. It is also pertinent to this determination to' understand that even if counsel were present he could not prevent the presentation of the accused to the victim or witnesses in a properly conducted in-field or line-up identification procedure.

This assignment has no merit.

Assignment Nos. 3, 6,1, 8, 9,10 and 11

These assignments pertain to a ruling denying defendant’s motion to suppress physical evidence obtained as a result of a search and seizure allegeu to be unreasonable, illegal and made in violation of the Fourth Amendment to the Federal Constitution. When the objects seized in the search were introduced in evidence defense counsel objected and assigned these errors.

Skinner, the victim of the robbery, and the parties who witnessed the robbery in progress, gave the investigating officers who arrived at the scene shortly thereafter a description of the clothing, eyeglasses, facial hair, etc., which the robber was wearing. These were the objects which were introduced into evidence over the defense objection.

After Maduell was identified by the victim at the scene of the crime and arrested, the officers returned to the house where they found him initially. They were permitted entrance by Mrs. Maduell and, as they walked through the house, the objects referred to by the victim were spread about in several locations in plain view. There was no prying into cupboards, drawers, closets, etc., and . consequently no search.

Upon this basis the officers applied for and obtained a search warrant with which they later seized these objects at the Mad-uell residence.

These assignments are based upon the contention that the location and existence of these objects in the Maduell house were ascertained during the first visit of the officers to the Maduell residence following his arrest. Entrance was gained, it is asserted, without permission. Thus an illegal search took place and the information thus obtained was the fruit of the poisonous tree. A search warrant issued on this information was therefore founded upon illegally obtained information which could not ■support the probable cause necessary to a valid warrant.

The contention is without merit. Information supporting the issuance of the search warrant was obtained from the victim of the crime and the people who witnessed the robbery in progress. This information was verified and the objects involved were located in plain view in the Maduell residence which the officers entered with the permission of Mrs. Maduell. She had apparent authority to grant this permission in her husband’s absence.

This view of the facts, which is supported by the record, leaves us with the conclusion that the information and evidence supporting the issuance of the search warrant came to the attention and possession of the police by valid and legal means. There was, therefore, no error in the ruling of the trial judge refusing to suppress the evidence and permitting its introduction.

Assignment No. 4

According to Article 795 of the Code of Criminal Procedure:

“A juror cannot be challenged for cause by the state or the defendant after having been accepted by the challenging party, unless the ground for the challenge was not known by the challenging party prior to acceptance. . . . ”

Counsel contends that this provision allows defendant the opportunity to challenge prospective jurors up until the time that they are sworn. Therefore, he objected to the denial of his motion to further interrogate the jurors after they had been accepted.

The circumstances surrounding the ruling and objection disclose that at a session of court on February 19, 1975, the prospective jurors were examined on their voir dire and twelve jurors and one alternate were accepted. Court was then adjourned until February 24 at 10:00 .o’clock in the morning. When court met on February 24, the jury was seated in the box and the alternate juror was discharged. Both the State and the defense announced ready, and the judge ordered the trial to begin.

At that time defense counsel announced:

“Your honor it has come to my attention that several of these jurors live in the immediate vicinity of this drug store and I know we asked if they recognized the name, but I would like to make a motion that they be interrogated further..."

In his per curiam, the trial judge states that the jurors had been sworn and accepted when the defense motion was made. This statement is challenged by defense counsel on the basis of minute entries and an extract from the transcript which are negative on the subject and neither support nor refute the per curiam of the trial judge.

On the basis of the trial judge’s per curiam statement that the jurors had been sworn, the defense motion to further interrogate the jurors was properly denied. Whether the ground for challenge was not known to the challenging party prior to acceptance of the jurors was a question of fact to he determined by the trial judge. His finding on this fact question should not be reversed unless clearly erroneous. Nevertheless, accepting defense counsel’s statement that he was unaware of the fact that several of the jurors lived in the “immediate vicinity” of the drugstore where the robbery occurred, we are unwilling to find on this sketchy record that this fact was either a ground for challenge for cause or a basis for upsetting the ruling of the trial judge and reversing this conviction.

Assignment No. 5

When Officer Roth testified on direct examination that hair found in Mad-uell’s house appeared to be half-inch mous-tache facial hair defense counsel objected, the objection was overruled and the ruling is assigned as error. The argument is that Officer Roth was not qualified as an expert and could not give his opinion that the hair was moustache hair as opposed to side-burn hair, hair from hands, legs, etc.

Aside from the fact that the ground for objection was not stated at the time of the occurrence, La.Code Crim.Proc. art. 841, a review of the testimony indicates that Maduell shaved his moustache almost immediately after the robbery, and the officers found the shavings in the bathroom. Pictures of Maduell before and after the robbery and his identification by Skinner, who witnessed the robbery and saw him shortly thereafter, set this fact at rest. With this knowledge, it was permissible for the detective to voice his conclusion that based on his investigation the hair was Maduell’s moustache hair. “A witness may state a natural inference from something he has observed, or an impression made on him from certain facts.” State v. St. Amand, 274 So.2d 179 (La 1973).

Assignment No. 12

Although the defense acknowledges this Court’s holding in State v. Vale, 252 La. 1056, 215 So.2d 811 (1968), revd. on other grounds, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 that a criminal defendant is not entitled to a jury trial in a multiple offender proceeding, it is asserted that the procedure prescribed for the imposition of an enhanced penalty under Section 529.1 of Title 15 of the Revised Statutes makes a multiple offender proceeding “a criminal case” within the meaning of Section 17 of Article I of the Constitution of 1974. Pertinent parts of that provision, referring to “criminal cases”, prescribe that “A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict.”

The argument on this assignment is that the multiple offender proceeding is a criminal case because, as in a criminal case, the state must initiate the proceeding by filing a separate bill of information; the defendant has the right to counsel; the accused must be arraigned and enter a plea; the state has the burden of proving the charges; and there is a right of appeal. While the decision in State v. Vale, supra, may have been well-founded under the Constitution of 1921, the defendant contends the same result cannot be reached under the new constitution.

The contention is without merit. The relevant provision of the 1921 constitution also refers to “cases”; its meaning is identical with the 1974 Constitution: “[Cjases in which the punishment is necessarily at hard labor (shall be tried), by a jury of twelve, nine of whom must concur to render a verdict . . . . ”

Our decision in State v. Vale was founded upon constitutional authority which was no different from the authority relied upon by defendant in the 1974 Constitution. The result is therefore-the same.

The multiple offender statute, La.R.S. 15:529.1, does not require that such a proceeding be tried by a jury. The questions required to be determined by the proceeding are purely questions of fact; they do not relate to facts bearing upon guilt or innocence at issue because of the alleged violation of a law defining and punishing a crime.

“The Constitution in providing for trial by jury in a certain specified class of cases has reference to cases where the defendant is prosecuted for the violation of some penal statute. There is no provision in the Constitution that we have been able to find which authorizes or requires questions of fact not pertaining to guilt or innocence of a defendant to be submitted to a jury.” State v. Guidry, 169 La. 215, 124 So. 832 (1929).

Assignment No. 13

This assignment is based upon three allegations contained in defendant’s motion to quash the bill of information filed against him.

First: The motion alleges that the information fails to charge an offense punishable under a valid statute because the multiple offender statute (La.R.S. 15:529.1) is unconstitutional; it is contrary to Section 20 of Article I of the Constitution of 1974 which grants full rights of citizenship “upon termination of state and federal supervision' following conviction for any offense”; and it is also contrary to Section 5(E) of Article 4 which automatically pardons first offenders upon completion of sentence.

The effect of these two constitutional provisions, the defense argues, is to automatically grant constitutional pardons for past offenses upon completion of supervision. Defendant also relies upon the holding of this Court in State v. Childers, 197 La. 715, 2 So.2d 189 (1941) that a defendant could not be punished as a second offender after a pardon by the governor for a first offense. See also State v. Lee, 171 La. 744, 132 So. 219 (1931).

It is unnecessary to resolve this contention in the instant case because the Constitution of 1974 has prospective operation only. Under its provisions automatic pardons are granted only where the offense was committed on or after January 1, 1975, the effective date of the new constitution. Maduell’s first offense — obtaining morphine by fraud — occurred in 1962, and he completed that sentence before 1969. His second offense — burglary—was committed in 1970; and supervision under that conviction ceased prior to December 1974 when the offense — armed robbery — which is the subject of the instant prosecution occurred. The automatic pardon provision of the constitution does not apply here, for Article XIV, Section 26, denies retrospective operation:

“Except as otherwise specifically provided in this constitution, this constitution shall not be retroactive and shall not create any right or liability which did not exist under the Constitution of 1921 based upon actions or matters occurring prior to the effective date of this constitution.”

Second: The motion alleges that the trial court lost jurisdiction to conduct this multiple offender proceeding because a valid sentence had been imposed for the armed robbery conviction and an appeal from that conviction had been granted. The record reflects that the bill of information to enhance the penalty was filed on February 27, 1975, after verdict but before sentence. Sentence on the armed robbery verdict was imposed on February 28, 1975, defendant orally moved for an appeal “to be supplemented with a written motion,” and the hearing on the enhanced penalty proceeding was set for March 5, 1975. On March 5 defense counsel filed a motion for appeal from his conviction and sentence on the armed robbery charge, which motion the Court ordered received and filed. During this same session of court the multiple offender proceeding was conducted, the court ordered the sentence imposed in the armed robbery conviction vacated and sentenced Maduell to serve 100 years.

To support this second allegation of the motion to quash the defense relies upon Article 881 of the Code of Criminal Procedure which authorizes the trial judge to amend or change the sentence only “prior to the beginning of execution of the sentence.” Article 916 is also authority for the proposition, defendant contends, that “jurisdiction of the trial court is divested and that of the appellate court attaches, upon the entering of the order of appeal. . . . ” Thereafter, the trial court has no jurisdiction over the matter except in certain instances enumerated in Article 916 which do not refer to vacating a sentence and imposing an enhanced penalty in a multiple offender proceeding.

The answer to this contention is found in the multiple offender statute (La.R.S. 15:529.1) which specifically permits the filing of a bill of information “at any time, either after conviction or sentence,”

The provisions of the Code of Criminal Procedure are apparently in conflict with Section 529.1 of Title 15 of the Revised Statutes. However, the Code articles are broad provisions applying to criminal trials generally; whereas, Section 529.1 is a special enactment dealing specifically with details which pertain to habitual offenses only.

In these circumstances, where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is any conflict the latter will prevail. Abbott v. Parker, 259 La. 279, 249 So.2d 908 (1971); Arata v. Louisiana Stadium and Exposition District, 254 La. 579, 225 So.2d 362 (1969); State v. Mejia, 250 La. 518, 197 So.2d 73 (1967); Sands, Sutherland Statutory Construction § 51.05 (4th ed. 1973).

Third: Finally, the motion to quash alleges that the multiple offender proceeding cannot be prosecuted by a bill of information. The proceeding must be instituted by a grand jury indictment in light of the guarantee in Section 15 of Article I of the Constitution of 1974 that “no person shall be held to answer for . . . a crime punishable by life imprisonment except on indictment by a grand jury.” The penalty imposed here was 100 years; at least life — as we understand the contention.

“The multiple offender statute is an enhancement-of-penalty provision. It is not a new prosecution for an offense.” State v. Jackson, 298 So.2d 777 (La.1974). Therefore, it does not fall within the constitutional requirement that the proceeding is one in which the defendant must “answer for ... a crime punishable by life imprisonment.” The multiple offender proceeding is for enhancement of penalty on account of multiple offenses for which the defendant has previously “answered”.

Assignment No. 14

Defense counsel argues, in effect, the statute (La.R.S. 15:529.1) requires that for a prima facie case to be presented in a multiple offender proceeding the certificate of the warden attesting to the incarceration of the defendant must be introduced. This is true. However, this does not mean that other evidence could not establish the requisite elements for imposition of the enhanced penalty. Here the testimony supports the finding of the trial judge that defendant was a multiple offender as defined by the statute.

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

      . Insofar as pertinent here, Section 6(E) of Article IV of the Constitution of 1974 provides: “ . . .a first offender never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor.” State v. Guidry, 169 La. 215, 124 So. 832 (1929). See also State v. Williams, La., 326 So.2d 815.


source: Caselaw Access Project

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

license: Public Domain

text:
    Ladene K. PENCE v. Dewey Kelly KETCHUM et al.
    No. 56668.
    Supreme Court of Louisiana.
    Jan. 19, 1976.
    Dissenting Opinion Feb. 20, 1976.

      John W. deGravelles, Due & Dodson, Baton Rouge, for plaintiff-applicant.
    Robert J. Vandaworker, Baton Rouge, Joseph W. Cole, Jr., Port Allen, for defendants-respondents.
   SANDERS, Chief Justice.

Plaintiff, a patron of a bar,- brought this action against the owners of the bar and another to recover damages for injuries sustained when she was struck by an automobile after being ejected from the bar in an intoxicated condition. The district court dismissed the suit on an exception of no cause of action filed by the owners of the bar. The Court of Appeal affirmed the district court, 314 So.2d 550 (1975), relying upon our holding in Lee v. Peerless Insurance Company, 248 La. 982, 183 So.2d 328 (1966). We granted writs, La., 319 So.2d 440 (1975), to reconsider the legal issues raised.

The ultimate question before us is whether the petition states a cause of action for damages against the defendants. We hold that it does.

In Louisiana liberal rules of pleading prevail. Each pleading should be so construed as to do substantial justice to the parties. LSA-C.C.P. Art. 865. When the Court can reasonably do so, it will maintain a petition so as to afford the litigant an opportunity to present his evidence. Eschete v. City of New Orleans, 258 La. 133, 245 So.2d 383 (1971); Erath Sugar Company v. Broussard, 240 La. 949, 125 So.2d 776 (1961); and authorities cited therein.

In ruling upon th'e peremptory exception of no cause of action, all well-pleaded facts in the petition must be taken as true, and, if the allegations set forth a cause of action in any respect, the exception must be overruled. Eschete v. City of New Orleans, supra; Elliott v. Dupuy, 242 La. 173, 135 So.2d 54 (1961).

In Elliott v. Dupuy, supra, this Court held:

“It is well settled that an exception of no cause of action addresses itself to the sufficiency in law of the petition and is triable on the face of the papers; that for the purpose of determining the issues raised by this exception, the well pleaded facts in the petition and any annexed documents must be accepted as true, and that a suit will not be dismissed on exception of no cause of action if allegations of fact set forth a cause of action as to any part of the demand.”

In the present case, plaintiff seeks damages for personal injuries she suffered when she was struck by an automobile operated by defendant Ketchum as she was attempting to cross U. S. Highway 190 in West Baton Rouge Parish. She alleges that her injuries were caused by the negligence of Ketchum and, alternatively, by the joint and concurrent negligence of Ketchum, Anthony J. Silvio and Victor J. Silvio. The petition alleges that the Silvio defendants:

“. . . at the time of the accident were the owners and operators of a bar located on Highway 190 in West Baton Rouge Parish, known as the Candlelight Inn, in that said defendants and their agents, employees and representatives forced plaintiff to leave the Candlelight Inn premises when they knew or reasonably should have known that she was in no condition, due to her state of intoxication, to be placed on the busy Highway 190, in disregard of their duties owed to a patron and customer such as plaintiff after the personnel running the Candlelight Inn had served plaintiff an excessive amount of alcoholic beverages, which consumption by plaintiff of an excessive amount of alcoholic drinks was encouraged and coaxed by employees of Candlelight Inn, all resulting in plaintiff being in a helpless state when she was forced to leave the Candlelight Inn and permitted by one or both of the defendant owners or their employees to attempt to cross the highway when she was unable, due to her impaired condition, to do so.”

The Court of Appeal affirmed the dismissal as to the Silvio defendants, stating:

“The question has already been considered and decided adversely to plaintiff’s position in Lee v. Peerless Insurance Company, 248 La. 982, 183 So.2d 328 (1966). In that case, which is factually identical to this one, the court held that there was no legislative intent in R.S. 26:88(2) to create a right to recover civil damages in those who were not otherwise entitled to recover.”

Plaintiff’s action is based upon Articles 2315 and 2316 of the Louisiana Civil Code, which provide:

“Art. 2315. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. . . .”
“Art. 2316. Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.”

In order to sustain a cause of action under these articles, the petition must adequately allege fault, causation, and damage. Eschete v. City of New Orleans, supra. Fault is a broad concept and, of course, includes negligence. LS A-C.C. Art. 2316. Negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. It is a departure from the conduct expectable of a reasonably prudent man under like circumstances. Brown v. Liberty Mutual Insurance Company, 234 La. 860, 101 So.2d 696 (1958). For analysis, negligence is often divided into duty and breach of duty. Prosser, Law of Torts, § 30, p. 143 (4th ed. 1971).

We find that plaintiff’s petition adequately alleges that defendants breached at least two duties they owed to plaintiff: the statutory duty of a retailer of alcoholic beverages not to serve alcoholic beverages to an intoxicated person and the duty of a business invitor to avoid affirmative acts increasing the peril of his intoxicated patron.

LSA-R.S. 26:88(2), applicable only to retailers of alcoholic beverages, prohibits a retailer from serving or selling such beverages to an intoxicated person. The statute was designed, at least in part, to protect intoxicated persons from their own helplessness and incompetence. It embodies a legislative judgment that an intoxicated person is a menace to himself. Moreover, in our opinion, the statute creates no higher standard of conduct than that generally required of a reasonable man under like circumstances. See Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1, 75 A.L.R.2d 821 (1959); Corcoran v. McNeal, 400 Pa. 14, 161 A.2d 367 (1960); 41 Tul. L.Rev. 182, 185 (1965).

Under the allegations of the petition, plaintiff falls within the protected class, and the risk encountered was of the type the duty was designed to prevent. Hence, a court can look to the statute as a standard for determining negligence, or fault, under Articles 2315 and 2316 of the Louisiana Civil Code. See Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970); Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962); Brown v. S. A. Bourg & Sons, Inc., 239 La. 473, 118 So.2d 891 (1960); Lee v. Carwile, La.App., 168 So.2d 469 (1964); Moses v. Mosley, La.App., 146 So.2d 263 (1962); Soronen v. Olde Milford Inn, 84 N.J.Super. 372, 202 A.2d 208 (1964); Schelin v. Goldberg, 188 Pa.Super. 341, 146 A.2d 648 (1958); Stone, Tort Doctrine in Louisiana: The Concept of Fault, 27 Tul.L.Rev. 1, 3-4 (1952); James, Statutory Standards and Negligence in Accident Cases, 11 La. L.Rev. 95 (1950).

A violation of the statute, causing harm to an intoxicated patron, gives rise to a viable cause of action. See, e. g., Elder v. Fisher, Ind., 217 N.E.2d 847 (1966); Ramsey v. Anctil, 106 N.H. 375, 211 A.2d 900 (1965); Majors v. Brodhead Hotel, 416 Pa. 265, 205 A.2d 873 (1965); Jardine v. Upper Darby Lodge No. 1973, Inc., 413 Pa. 626, 198 A.2d 550 (1964); Soronen v. Olde Milford Inn, supra; 41 Tul.L.Rev. 182, 184 (1965).

In Soronen v. Olde Milford Inn, supra, the New Jersey Court held:

“The duty to the visibly intoxicated persons is both common law and statutory. Intoxication is a state of impairment of one’s mental and physical faculties due to overindulgence in alcoholic drink. A person in that condition is unable to exercise normal powers of judgment and prudence. He is a potential menace, not only to himself but to others. Common sense requires that a tavern keeper refuse to serve alcoholic drink to such a person. This common law principle is carried into our Alcoholic Beverage Control Act which, through implementing regulations, specifically prohibits a licensee from serving alcoholic drink to a person actually and apparently intoxicated. We conclude that plaintiff’s complaint sets forth a justiciable cause of action.”

Some courts, however, have barred a cause of action under these circumstances on the theory that the consumption of the alcoholic beverage, not the act of the retailer in serving it, is the proximate cause of any injuries suffered by the intoxicated patron. See 48 C.J.S. Intoxicating Liquors § 430, p. 716. In our opinion, this theory is unsound.

The petition adequately alleges factual causation. The usual test is whether but for defendant’s conduct the injury to plaintiff would have occurred. For a defendant’s conduct to be actionable it must be a necessary antecedent of plaintiff’s harm. It need not, however, be the sole cause contributing to the harm. Dixie Drive It Yourself Sys. v. American Beverage Co., supra. Hence, factual causation becomes an issue to be resolved at the trial.

Proximate cause, however, is often used in a different sense from factual causation. A consideration of the doctrine often requires a duty analysis. It requires a determination of whether or not the duty, statutory or non-statutory, is designed to protect the plaintiff from the event which did in fact occur. Insofar as the concept is pertinent here, it is satisfied by our legal conclusion that the risk and harm allegedly encountered fall within the scope of protection of the duty. Dixie Drive It Yourself Sys. v. American Beverage Co., supra; Annotation, 100 A.L.R.2d 942, 965-966; Prosser, Law of Torts, § 42, p. 244 (4th ed. 1971); Green, Rationale of Proximate Cause 142-144 (1927); McDonald, Proximate Cause in Louisiana, 16 La.L.Rev. 391 (1956).

The second duty allegedly breached by defendants arises from the invitor-invitee relationship. The defendants cater to the public in their business operations. The standard of conduct to which they must conform is that of a reasonable man under like circumstances. LSA-C.C. arts. 2315, 2316. The patrons are drinking and, in some instances, drunken persons from whom unstable and erratic conduct is to be expected. Intoxication is a status which demands increased care to avoid injury to the inebriate and to satisfy the above standard. Kimbrell v. American Indemnity Co., La.App., 56 So.2d 880 (1952); 57 Am.Jur.2d, Negligence, § 87, p. 435; Malone, Contributory Negligence and the Landowner cases, 29 Minn.L.Rev. 61, 72 (1945). .

The duty requires that defendant refrain from affirmative acts which increase the peril to his intoxicated patrons. If the defendant ejects an intoxicated patron into an environment made hazardous by known dangers, such as the highway in the present case, and foreseeable injury results, the invitor is guilty of actionable negligence. Weymire v. Wolfe, 52 Iowa 533, 3 N.W. 541 (1879); Houston v. Strickland, 184 Va. 994, 37 S.E.2d 64, 165 A.L.R. 537 (1946); Fagg’s Adm’r v. Louisville & N. R. Co., 111 Ky. 30, 63 S.W. 580 (1901); Fagan v. Atlantic Coast Line R. Co., 220 N.Y. 301, 115 N.E. 704, L.R.A.1917E at 663 (1917); Johnson v. Louisville & N. R. Co., 104 Ala. 241, 16 So. 75 (1894); Bragg’s Adm’x v. Norfolk & W. Ry. Co., 110 Va. 867, 67 S.E. 593 (1910); Prosser, Law of Torts § 56 at 343 (4th ed., 1971); Cf. Depue v. Flateau, 100 Minn. 299, 111 N.W. 1 (1907); Black v. New York, N. H. & H. R. Co., 193 Mass. 448, 79 N.E. 797 (1907).

Dean William L. Prosser, in his treatise, supra, summarizes the law as follows:

“[T]here is at least a duty to avoid any affirmative acts which make his situation worse .... There may be no duty to take care of a man who is ill or intoxicated, and unable to look out for himself; but it is another thing entirely to eject him into the danger of a railroad yard; and if he is injured there will be liability.”

In the present case, the petition alleges that the defendants and their employees knew of plaintiff’s helpless condition but nonetheless ejected her from their place of business into an area adjacent to a busy highway. They then permitted her to attempt to cross the highway, where she was injured. As to this duty also, the petition alleges a cause of action, absent other overriding doctrines.

The Court of Appeal apparently concluded that the petition disclosed contributory negligence barring recovery as a matter of law. We disagree.

To warrant the dismissal of a petition on an exception pleading contributory negligence, the recitals of the petition ’ must be such as to clearly show contributory negligence and to exclude every reasonable hypothesis of liability. Gilliam v. Lumbermen’s Mutual Casualty Company, 240 La. 697, 124 So.2d 913 (1960); Arata v. Orleans Capitol Stores, 219 La. 1045, 55 So.2d 239 (1951).

The doctrine of Last Clear Chance is well-established in Louisiana and represents an exception to the general rule that contributory negligence bars plaintiff’s recovery. Cassar v. Mansfield Lumber Co., 215 La. 533, 41 So.2d 209 (1949); Jackson v. Cook, 189 La. 860, 181 So. 195 (1938). Since it is evidentiary in nature, the doctrine need not be specially pleaded. Lemaire v. Pellerin, La.App., 102 So. 2d 493 (1958).

If a person is in an advanced state of intoxication so as to render him helpless, or incapable of self-protection, the law accords him the benefit of the doctrine of Last Clear Chance. See Jackson v. Cook, supra; Blackburn v. Louisiana Ry. & Nav. Co., 144 La. 520, 80 So. 708 (1919); McGuire v. Vicksburg S. & P. R. Co., 46 La.Ann. 1543, 16 So. 457 (1894); Foxworth v. State Farm Mutual Automobile Ins. Co., La.App., 308 So.2d 348 (1975); Grennon v. New Orleans Public Service, Inc., 10 La.App. 641, 120 So. 801 (1929); Small v. Boston & M.R.R., 85 N. H. 330, 159 A. 298 (1932). An impressive collation of the decisions from all jurisdictions supporting this rule is found in 26 A.L.R.2d 308.

Plaintiff’s negligence in becoming intoxicated had allegedly placed her in a condition of obvious helplessness. Defendants were aware of her peril. Nonetheless, the defendants failed to use an opportunity to avoid harm to the plaintiff. Hence, the petition leaves adequate room for the application of Last Clear Chance. Jackson v. Cook, supra; Weymire v. Wolfe, supra; Gaylord Container Corporation v. Miley, 230 F.2d 177 (U.S. 5th Cir. 1956); Galvin v. Jennings, 289 F.2d 15 (U.S. 3rd Cir. 1961); 2 Harper & James, Torts, § 22.13 at 1245-1246 (1956); 26 La.L.Rev. 510-511 (1966) ; 41 Tul.L.Rev. 182, 188 (1966).

In Weymire v. Wolfe, supra, a defendant saloon keeper expelled the intoxicated and helpless patron from a saloon at a late hour on an extremely cold night. The patron died of cold and exposure. The Iowa Court reversed a verdict in favor of defendant based on erroneous instructions, stating:

“The petition states, and the evidence tended to show, that Dunn was expelled from the saloon at a late hour of the night, drunk and unconscious, and died by reason of exposure and cold. If it should be conceded that Dunn contributed to his death by drinking until he became drunk and unconscious, it would not follow that the plaintiff would not be entitled to recover. If a person lies down upon a railroad track in a state of helpless intoxication, the company will not be justified in running a train over him, if it can be avoided in the exercise of reasonable care, after the person is discovered in his exposed condition.”

Plaintiff’s final movements into the highway do not defeat the application of Last Clear Chance. Under this doctrine, the law looks to plaintiff’s incapacity rather than to her antecedent conduct. As the Court stated in Small v. Boston & M.R.R., supra, “While a sober person cannot have the benefit of the last chance rule which an intoxicated person may by reason of his incapacity, there is no favor to the latter. It is the situation of incapacity, however it arises, that invokes the duty of saving action by the defendant.”

We conclude that the petition adequately alleges fault, causation, and damage under Articles 2315 and 2316 of the Louisiana Civil Code. Hence, we hold that the petition states a cause of action in favor of the injured patron. Because of the posture of the case, our decision is limited to this narrow holding.

Admittedly, our holding here conflicts with the decision in Lee v. Peerless Insurance Company, supra. There, with a similar petition, the Court held that the petition did not state a cause of action. The rationale was that the intoxicated patron was guilty.of contributory negligence as a matter of law and that the proximate cause of the injury was the consumption of the alcoholic beverage and not the sale. The decision has been widely criticized as unsound. See 41 Tul.L.Rev. 182 (1966); 26 La.L.Rev. 510 (1966); 27 La.L.Rev. 146 (1966); 13 Loy.L.Rev. 204 (1966). The leading decision relied on, Cole v. Rush, 45 Cal.2d 345, 289 P.2d 450, 54 A.L.R.2d 1137 (1955), has since been overruled in Vesely v. Sager, 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151 (1971). As noted in Vesely v. Sager, supra, most of the recent decisions have rejected the no-proximate-cause rubric. Accordingly, Lee v. Peerless Insurance Company is overruled.

For the reasons assigned, the judgment of the Court of Appeal is reversed, the peremptory exception of no cause of action is overruled, and the case is remanded to the district court for further proceedings consistent with the views herein expressed. The costs of the present appellate proceedings are taxed against the defendants. All other costs are to await the outcome of the suit.

DIXON, J., concurs with reasons.

SUMMERS, CALOGERO and MARCUS, JJ., dissent and assign reasons.

DIXON, Justice

(concurring).

The duty — breach - of - duty approach adopted by this court and well discussed by the majority opinion negates the need for inquiry into the doctrines of contributory negligence and last clear chance.. The proper test is whether the duty imposed on this defendant, whether statutory or non-statutory, is designed to protect this plaintiff (in her intoxicated condition) from the risk to which she was exposed. This standard includes the protections provided by the above doctrines. See Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298, 306 (1962), and Malone, Ruminations on Dixie Drive It Yourself, 30 La.L.Rev. 363, 373.

CALOGERO, Justice

(dissenting).

The majority holds, contrary to a decision of this Court in Lee v. Peerless Insurance Company, 248 La. 982, 183 So.2d 328 (1966), that a person states a cause of action for the recovery of damages from a bar proprietor upon alleging that he was struck by an automobile after having been ejected from the bar in an intoxicated condition.

I believe that this Court’s decision in Lee v. Peerless Insurance Co., supra, was correct and that such allegations do not state a cause of action. The Louisiana legislature has never passed, either before or after the Lee case, a civil damage or “dram shop” statute.

I therefore respectfully dissent.

MARCUS, Justice

(dissenting).

I do not find that plaintiff has alleged any facts indicating a breach of La.R.S. 26:88(2), which prohibits a retailer of alcoholic beverages from serving an intoxicated person. In my view, the only duty imposed by this statute on defendants was not to serve plaintiff after she became intoxicated. Any risk or harm encountered by the intoxicated person thereafter does not fall within the duty imposed by the statute. Likewise, I find no allegations of a breach of duty by defendants arising from the invitor-invitee relationship. Operators of public bars owe no obligation to insure the safe journey home of their patrons after leaving their place of business. Their only duty in this respect is to stop serving them when they become intoxicated. Accordingly, I respectfully dissent from the majority opinion.

SUMMERS, Justice

(dissenting).

In overruling Lee v. Peerless Insurance Company, 248 La. 982, 183 So.2d 328 (1966), an almost identical factual situation, this Court disregards the fact that Louisiana has never had a civil damage or “dramshop” act imposing liability upon tavern keepers when their customers become intoxicated and suffer harm on that account. Furthermore, the case at bar disregards the fact that Section 88 of Title 26 of the Revised Statutes is criminal in nature, levying a fine and imprisonment for its violation, and the statute is not designed to set a standard of conduct for the determination of civil liability.

More important, however, this decision, at least in this situation, abolishes the doctrine of contributory negligence, for plaintiff’s intoxication was conceded to be voluntary.

I respectfully dissent.


author: BOLIN, Justice. TATE, Justice CALOGERO, Justice

text:
    STATE of Louisiana v. Mac BROWN.
    No. 56690.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Dissenting Opinion Feb. 23, 1976.
    Rehearing Denied Feb. 20, 1976.

      Neil H. Mixon, Jr., McCollister, Belcher, McCleary & Fazio, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Ralph L. Roy, James E. Boren, Asst. Dist. Attys., for plaintiff-appellee.
   BOLIN, Justice.

Defendant was charged by bill of information with armed robbery, in violation of La.R.S. 14:64. He was convicted and sentenced to ten years’ imprisonment. He assigns seventeen errors on this appeal and we affirm.

The evidence adduced at trial indicated that on November 5, 1973, defendant and Ralph Sterling approached Sterling’s girlfriend, the State’s chief witness in the case, and asked to borrow her car. She agreed to lend the men her car provided they first drop her off at a laundromat. They left her at the laundromat sometime between 9:30 A.M. and 10:45 A.M. and returned at about 12:15 P.M. with a third person, identified by Sterling’s girlfriend as Thomas Carter.

Sometime between approximately 12:00 noon and 1:00 P.M., the robbery in question occurred. One witness testified that a small, light colored foreign car was seen near the scene of the crime at about the time of the robbery. Two officers travel-ling on the Interstate with a prisoner in the back of their car saw three black men whom they could not identify, riding on that highway and noted their license plate number after hearing a radio notification to be on the lookout for a light colored foreign car. The car seen by the officers on the Interstate was the gold Toyota station wagon loaned by Ralph Sterling’s girlfriend to Sterling and defendant. When Carter, Sterling and defendant returned to the laundromat, they picked up Sterling’s girlfriend and let her out at her home. Sterling returned to his girlfriend’s house ten minutes later without defendant or Carter. Sterling and his girlfriend then left her home and were driving the car toward an employment office when they were stopped by police who recognized the license number.

The officers then searched the car, with the owner’s permission, and discovered a gun in the glove compartment, about which the owner of the car testified that she knew nothing-. $137.00 in small bills was also found on Sterling’s person.

ASSIGNMENT OF ERROR NO. 1

Defendant first assigns error in the trial court’s refusal to grant his motion to quash because defendant had been denied a speedy trial. The robbery allegedly occurred on November 5, 1973; defendant was arrested on November 8, 1973, and trial was held on January 28, 29 and 30, 1975. Under the four-factor test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we find defendant has not been denied his right to a speedy trial.

As to the first two factors, the length of the delay and the reasons therefor, the fourteen-month lapse between arrest and trial was neither inordinate nor unusual. The State demonstrated that the crowded docket accounted for the delay and we find that the trial judge did not abuse his discretion in accepting this explanation.

The third Barker factor is defendant’s assertion of his right to a speedy trial. The defendant did not demand that he be tried until October 24, 1974, at which time he wrote a letter to the assistant district attorney. The trial was held three months after that time, and, considering the intervening Thanksgiving and Christmas holidays, this was not an unnecessary delay.

Finally, defendant has failed, to meet the fourth factor set out in Barker since he failed to prove concrete prejudice flowing from the delay.

Thus, this assignment has no merit.

ASSIGNMENT OF ERROR NO. 2

In this assignment, defendant argues that the trial court committed error by refusing to grant his motion for a severance of his trial from that of his codefend-ant Carter. A severance is required only when the trial court is satisfied that justice requires it. La.C.Cr.P. art. 704.

At the time the motion for severance was denied, there was no potential danger of inconsistent or antagonistic defenses or statements by the co-defendants or of the existence of any other factor which would prevent defendant from receiving a fair trial absent a severance. Nor did any such difficulty materialize during trial. Thus, we find this assignment has no merit.

ASSIGNMENTS OF ERROR NOS. 3, 4, 12 and 14

Assignments of Error Nos. 3, 4, 12 and 14 involve the issue .of when the rules on criminal conspiracy may be mentioned in a trial not for the inchoate offense of conspiracy but for the commission of a substantive crime. The four assignments were made, (1) when the trial court explained the law of criminal conspiracy to the jury during voir dire examination; (2) when the assistant district at' orney explained the law of criminal conspiracy during his opening statement; (3) when he again made such reference during his closing statement; and (4) when the judge explained to the jury the law of conspiracy during his charge.

In both its original and supplementary briefs and on oral argument, the State justifies references to the law of conspiracy on the basis that La.R.S. 15:455 allows proof by the State of a conspiracy in order to take advantage of the relaxed evidence rules established by that provision. La.R.S. 15:455 provides:

“Each coconspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration -be or be not on trial with his codefend-ant. But to have this effect a prima facie case of conspiracy must have been established.”

The State urges that the jury must understand the principles of the law of conspiracy because it must decide as a question of fact whether there has been a conspiracy in order to determine whether the acts of one co-conspirator are to be imputed to the other co-conspirators.

The scope of the voir dire examination of prospective jurors is within the discretion of the trial judge and his rulings will not be disturbed absent manifest error. La.C.Cr.P. art. 786. In order for evidence to be introduced at trial, it must be within the scope of the opening statement. La.C.Cr.P. art. 769. Thus, we hold that whenever more than one person is charged with the commision of a crime and the State intends to prove that a conspiracy existed in order to take advantage of La.R.S. 15:455, it is proper to discuss on voir dire and during the State’s opening statement the law of conspiracy.

One of the subjects allowed by La.C.Cr.P. art. 774 to be discussed in the closing argument is the law applicable to the case. Likewise, the judge is required to charge the jury as to the law applicable to the case. La.C.Cr.P. art. 802. Therefore, we hold that if any evidence of conspiracy has been introduced during trial, the district attorney may refer to, and the court may charge the jury, as to the law of conspiracy. Because we find there was circumstantial evidence of a conspiracy in this case, we hold that the comments during argument and the trial court’s charge were proper.

We are not faced with the question of what type of showing of conspiracy must be made before evidence of the type allowed by La.R.S. 15:455 may be admitted. There was no objection in this case to any evidence introduced against Mac Brown on the basis that it was admissible only under that provision. We are concerned here only with reference to the law of conspiracy at the various stages of the trial.

These assignments are without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant argues the testimony of Ralph Sterling’s girlfriend that “ * * * Ralph Sterling asked to borrow my car * * * ” was inadmissible hearsay. This testimony was not inadmissible hearsay. The question, “may I borrow your car?” does not convey information the correctness of which must be tested by cross-examination. The only issue raised by the statement was whether Sterling had in fact made the statement, and this was tested by cross-examination of his girlfriend.

Because the statement objected to is not hearsay, this assignment has no merit.

ASSIGNMENT OF ERROR NO. 6

Another error was assigned by defendant when the trial judge allowed Ralph Sterling’s girlfriend to testify about the search of her car, and when he allowed into evidence the gun recovered during that search. Defendant apparently maintains that the absence of Ralph Sterling at trial denied him the right of confrontation on these issues.

Defendant’s position is untenable. He had the opportunity to fully cross-examine Sterling’s girlfriend on the issue, and we know of no rule of evidence that would require that Sterling be present before such evidence could be presented.

As to receiving the gun in evidence, it is the established law of this State that demonstrative evidence may be introduced if a foundation is laid showing that it is more probable than not that the object is connected with the case. See, e. g., State v. Walker, 296 So.2d 310 (La.1974). We find that sufficient evidence had been introduced to meet this standard before the gun was offered.

This assignment has no merit.

ASSIGNMENT OF ERROR NO. 7

This assignment relates to the in-court identification of defendant by the victim as one of the men who robbed her. The basis for the objection is that the identification was tainted by events surrounding a prior line-up identification in which the victim participated.

During that line-up procedure, the victim picked out the defendant as one of the robbers, but qualified that remark somewhat by saying he appeared to be a little lighter than on the day she was robbed. The officer conducting the line-up then told the victim that she had picked out the right man. At trial, the victim identified defendant once again. Upon being questioned about whether her in-court identification was influenced by the officer’s comment, she said she did not believe so.

We find no error in the trial court’s ruling that the victim’s in-court identification was not tainted by the suggestion of the police officer that she had chosen the right person. Her frank estimation that her in-court identification was not influenced- by the events at the line-up coupled with her identification of defendant at the line-up, although it was qualified, convince us that under all the facts defendant was not denied due process. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

This bill lacks merit.

ASSIGNMENT OF ERROR NO. 8

Defendant assigns as error the trial court’s ordering him to stand and be observed standing. This procedure was permissible as it constituted demonstrative rather than testimonial evidence, and thus did not violate defendant’s right against self-incrimination. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

This assignment is thus without merit.

ASSIGNMENT OF ERROR NO. 9

This error was assigned when the trial court overruled defendant’s objection to a police officer’s testimony that he had heard on the police radio the report of the robbery and the description of the car in which the suspects were riding. Defendant contends this testimony was hearsay and thus inadmissible.

Viewing the testimony in the context given, it seems clear that it was admitted to prove why the testifying officer noted the license plate of the car which was eventually stopped. The purpose of introducing the out-of-court statement was not to prove the correctness of the statement (that there were three suspects in a light-colored car). State v. Bluain, 315 So.2d 749 (La.1975).

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 10

This assignment is based upon the trial court’s various rulings that certain questions asked by the assistant district attorney were leading. After reviewing the record, we have determined that none of these questions constituted prejudicial error.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 11

Defendant assigns as error the trial court’s refusal to grant defendant’s motion for a directed verdict. Having determined the in-court identification was admissible, there was some evidence against defendant which precludes us from reversing the trial court’s refusal to grant a directed verdict. State v. Douglas, 278 So.2d 485 (La.1973).

This assignment has no merit.

ASSIGNMENT OF ERROR NO. 13

Defendant objects to what he alleges are personal comments made by the assistant district attorney during his closing arguments. It is contended the comments are similar to those requiring a reversal in State v. Kaufman, 304 So.2d 300 (La.1974). We have examined the record and can find no such statements of personal opinion as would mandate a reversal under Kaufman. The prosecutor did not exceed the permissible scope of argument allowed by La.C.Cr. P. art. 775.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 15

Defendant also complains that the trial court failed to include its requested charge regarding identification testimony in his general charge to the jury. The State argues the requested charge was included in the general charge and thus was properly refused.

We find the thrust of the requested charge was that the State must prove the verity of identification testimony beyond a reasonable doubt. This rule of law was covered in the general charge, which included the instruction that every element of the crime must be proven beyond a reasonable doubt.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 16 and 17

These assignments seek review of the denial by the trial court of defendant’s motions for a new trial and for a directed verdict. No new questions are presented by these assignments because the reasons given in support of the two motions are merely reiterations of other assignments previously disposed of herein.

These assignments have no merit.

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

TATE, J., concurs and assigns reasons.

DIXON, J., dissents. We cannot say that the erroneous instruction on conspiracy did not affect the jury verdict.

CALOGERO, J., dissents and assigns reasons.

TATE, Justice

(concurring).

I concur in the affirmance of the conviction. The defendant Brown was convicted on the basis of direct evidence of his participation. No evidence was admitted against him on the basis of some theory of (an unproven) conspiracy, so that testimony of the acts of other (alleged co-conspirators) was not used as proof against him of his guilt. La.R.S. 15:455.

This is the chief distinguishing feature in this case with the same issue raised in the appeal from the cpnviction of Thomas Carter, as jointly involved in the same robbery, Docket No. 56,594, argued before us during the same argument week. In Carter’s case, none of the evidence of the acts of others was admissible against him, in my opinion, since no evidence established his personal involvement in a conspiracy to commit the robbery. (As La. R.S. 15:455 notes: “But to have this effect a prima facie case of conspiracy must have been established.”) The mere fact that Carter and another person were riding with the present defendant, Brown, after the robbery does not, by itself, prove their participation in or knowledge of Brown’s robbery.

Because of the risk that no prima facie case of conspiracy may be proved, neither the trial court nor the prosecutor should conduct voir dire or instruct jurors in advance of trial, as to the law of conspiracy when such is not charged. In view of our repeated approval of trial courts’ limitations of voir dire to its purpose of establishing the fairness of jurors, I am not inclined to believe that our majority opinion really means to approve voir dire education of prospective jurors as to a finer point of evidence law, which may not even arise during the trial if no prima facie conspiracy is proved.

The true basis here for not reversing for the voir dire and final instructions and argument on conspiracy is that, as to this defendant — proved by an eyewitness to have participated in the robbery with some other man (not Carter) — a prima facie case of conspiracy was proved. The initial voir dire questioning on conspiracy was, therefore, harmless if erroneous. (However, since declarations or acts of a co-conspirator were not actually offered against the accused, the conspiracy instructions, voir dire examinations, and argument concerned an issue not relevant nor material to the present case.)

With these reservations, I respectfully concur.

CALOGERO, Justice

(dissenting).

In assignments of error numbers three, four, twelve and fourteen defendant Mac Brown assigns as error the permeation of his trial with explanations of the law of conspiracy when in fact he was charged with the completed offense of armed robbery, not the inchoate crime of conspiracy to commit armed robbery. During a very short trial, the jury was told four times' about the law of conspiracy: by the prosecutor in his opening and closing statements, and by the trial judge during voir dire examination and during his jury charge. The majority opinion holds that the trial judge’s decision to allow this trial to be infused with the element of conspiracy was not error. The majority in this case has said:

“Whenever more than one person is charged with the commission of a crime and the State intends to prove that a conspiracy existed in order to take advantage of La.R.S. 15 :455, it is proper to discuss on voir dire and during the State’s opening statement the law of conspiracy. . . . ”

Further on in the opinion they state,

“If any evidence of conspiracy has been introduced during trial, the district attorney may refer to, and the court may charge the jury, as to the law of conspiracy.” (Emphasis provided)

They then found circumstantial evidence (some evidence) of a conspiracy and thus found no error in the rulings of the trial court.

On this very date a differently constituted majority has reversed the conviction of Brown’s co-defendant, Thomas Carter, on this very issue. State v. Carter, La., 326 So.2d 848. I voted with the majority in Carter, an opinion which sets forth a different standard for deciding whether the trial judge was correct in allowing the conspiracy element into the trial. In Carter we held that evidence of the acts and declarations of co-conspirators is inadmissible until the trial court has determined that a prima facie case that a conspiracy existed to commit the crime has first been shown. Since we found that there was no evidence that Thomas Carter was a member of a conspiracy to commit armed robbery, much less a prima facie showing thereof, we reversed his conviction.

In light of these two conflicting statements as to what standard controls (a pri-ma facie showing of conspiracy, or any evidence of conspiracy) and as to what evidence the state actually presented against these go-defendants and alleged co-perpetrators, I deem it necessary to set out with some specificity my thoughts on these subjects.

As for the law in the area, we look first to the statutes. La.R.S. 15:455 clearly states that to have the effect of binding the defendant with the acts and declarations of a co-conspirator, a “prima facie case of conspiracy must have been established.”

La.R.S. 15:455 provides in full that:

“Each coconspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his codefendant. But to have this effect a prima facie case of conspiracy must have been established.”

According to the jurisprudence of this state, R.S. 15:455 is a statutory codification of the jurisprudential exception to the hearsay rule allowing the extra-judicial statements of a co-conspirator made pursuant to, or in furtherance of, the conspiratorial purpose to be admissible against another co-conspirator. State v. Ford, 37 La.Ann. 443 (1885); State v. Robichaux, 165 La. 497, 115 So. 728 (1928); and State v. Hodgeson, 305 So.2d 421 (La.1974). This exception to the hearsay rule, which allows the introduction of an incriminating statement made by a co-conspirator not in the presence of the defendant to be used against that defendant, has been held by the United States Supreme Court not to violate the defendant’s right to cross-examination secured by the confrontation clause of the sixth amendment in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L. Ed.2d 213 (1970). But before the state can utilize the exception embodied in R.S. 15:455, the statute clearly states that “a prima facie case of conspiracy must have been established.” It is our opinion in Carter, not this opinion, which applies the standard required by the legislature.

This prima facie evidence standard, higher than the “any evidence” standard used here, is, in my view, that amount of evidence which satisfies a trial judge that enough evidence has been presented so that a jury could reasonably find that defendant was part of a conspiracy to commit the crime. The United States Supreme Court in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 3104 n. 14, 41 L.E.2d 1039 (1974) recently expressed the standard this way:

“As a preliminary matter, there must be substantial independent evidence of the conspiracy, at least enough to take the question to the jury. United States v. Vaught, 485 F.2d 320, 323 (CA 4 1973); United States v. Hoffa, 349 F.2d 20, 41-42 (CA 6 1965), aff’d on other grounds, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); United States v. Santos, 385 F.2d 43, 45 (CA 7 1967), cert. denied, 390 U.S. 954, 88 S.Ct. 1048, 19 L.Ed.2d 1148 (1968); United States v. Morton, 483 F.2d 573, 576 (CA 8 1973); United States v. Spanos, 462 F.2d 1012, 1014 (CA 9 1972); Carbo v. United States, 314 F.2d 718, 737 (CA 9 1963), cert. denied, 377 U.S. 953, 84 S.Ct. 1626, 12 L.Ed.2d 498 (1964). Whether the standard has been satisfied is a question of admissibility of evidence to be decided by the trial judge”

Previously, the Court had defined independent evidence as evidence other than the acts and declarations of co-conspirators. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

This substantial, independent evidence may be circumstantial evidence, or direct evidence. Although there is a difficulty inherent in proving an agreement between two people merely by circumstantial evidence, a prima facie case may be established with only circumstantial evidence. But whether direct or circumstantial evidence is presented by the state, the trial judge must be satisfied that he has seen enough proof (to the degree related herein-above) that defendant was involved in a conspiracy (i. e., that he agreed with someone in advance) to commit the crime, before he submits the question to the jury, certainly before he allows the prosecutor to use conspiracy in his closing argument, before he charges the jury on the law of conspiracy, and before acts and declarations of co-conspirators can be determined chargeable to the defendant and thus admitted into evidence. This is the standard of almost every jurisdiction which allows the extrajudicial statement of an alleged co-conspirator to be admissible in the trial of each conspirator. 46 A.L.R.3d 1148.

Let us turn now to the evidence at this trial that Mac Brown conspired with someone to commit armed robbery. The majority here found that “there was circumstantial evidence of a conspiracy in this case” while the majority in Carter (Carter was Brown’s co-defendant, tried jointly with him) found that “there was no evidence of a conspiracy.” When I read this record, I find no evidence at all that either Brown or Carter, as between themselves or with anyone else, participated in a conspiracy to commit armed robbery. There was no suggestion that Brown discussed this robbery or any criminal activity with Carter or anyone. There was no suggestion that there had even been any contact between Brown and Carter before the time this armed robbery occurred, or any contact between them other than their having been together in an automobile some time after the time the charged armed robbery purportedly took place. There was no testimony from anyone that there existed a conspiracy or agreement to commit this crime or any other.

Even had there been some evidence of a conspiracy, as the majority says there was, then the state’s argument concerning conspiracy and the judge’s charge theréon were still improperly allowed by the trial judge because no prima facie showing had been made to establish such conspiracy. This prima facie showing is mandated by R.S. IS :455 and requires a greater amount of proof than the “any evidence” showing espoused by the majority in this case.

Because I do not find evidence of Brown’s participation in a conspiracy, much less a prima facie case thereof, I must respectfully dissent.

      . Although it seems unsual that the element of conspiracy should ever be allowed in a prosecution for a completed offense, a procedural article, R.S. 15 :455 which allows the statement or acts of one who is found to be a conspirator to be charged against other conspirators-, has long been available to the state in such a prosecution. State v. Chawers, 294 So.2d 489 (La.1974); State v. Cryer, 262 La. 575, 263 So.2d 895 (1972); State v. Melerine, 236 La. 929, 109 So.2d 471 (1959); State v. Smith, 193 La. 706, 192 So. 106 (1939).

      . Finding Brown involved in a conspiracy and not his co-defendant Carter is not entirely incongruous for there was a third person with whom Brown might have conspired, one Ralph Sterling, a person not tried for whose name in the original information Carter’s name was substituted sometime before trial.

      . In fact, there was no evidence at all against Carter (even as to the charged offense) except that he was in a particular care (which appeared to have been the one used by the robbers) at the time it was returned to its owner, and that he left his sister’s house, where he had been living, without previously notifying her. The evidence against Brown was that he helped to borrow that same ear, and was in the car when it was returned.
      Both Brown and Carter appeared in lineups. At Carter’s lineup, the victim positively iden-fied another person, not Carter. At Brown’s lineup, she chose Brown but stated that he looked “lighter” than the robber. Because a sheriff told her after the lineup that she “had picked the right man out,” her identification of the defendant at the trial was probably tainted. And this identification was the sole bit of evidence on which Brown could have been found guilty.