author: PER CURIAM. SUMMERS, Justice

text:
    Cortez Burns ARMOUR, Plaintiff-Appellee-Respondent, v. SHONGALOO LODGE NO. 352 FREE AND ACCEPTED MASONS, Defendants-Appellants-Relators.
    No. 58059.
    Supreme Court of Louisiana.
    Jan. 24, 1977.
    Rehearing Denied Feb. 25, 1977.
    Leon M. Pliner, Shreveport, A. N. Yian-nopoulos, Baton Rouge, of counsel, for defendants-appellants-relators.
    John B. Benton, Jr., Kitchens, Benton & Kitchens, Minden, for plaintiff-appellee-re-spondent.
   PER CURIAM.

Plaintiff, Cortez Burns Armour, brought suit against the Shongaloo Lodge to have declared null and void the lease under which the lodge occupied a meeting hall. The defendant lodge reconvened and demanded specific performance of the lessor’s obligation to maintain the foundation of the lodge hall. The trial court found the lease null in that no price was contained and rejected the lodge’s demand for specific performance. The court of appeal affirmed. 330 So.2d 341 (La.App. 2d Cir. 1976).

We granted certiorari, 333 So. 245 (La. 1976), to review the judgment of the lower court.

A majority of the court is of the opinion that the agreement confected by the parties is a valid contract. We have considered the arguments made, including lack of serious consideration, prescription against the action in nullity, and the classification of the contract as a loan for use. We have also considered the applicability of the theory of imprevisión, the judicial revision of contracts. However, a majority of the court is unable to reach agreement upon which ground to uphold the validity of the contract.

Lessor’s obligation to support the foundation

Under the agreement, the owner of the premises is bound to keep the foundation of the building in good repair as to support the second floor. It is argued by plaintiff that it would cost in excess of $18,500 to put the first story in good repair. An examination of the record reveals that the estimate presented at trial is actually an estimate as to the cost of putting the first story in “first class shape.”

Under the contract, the plaintiff is not obligated to maintain the first floor in “first class shape”, but is simply obligated to maintain support for the second story or lodge hall. The evidence before the trial court provides an insufficient basis upon which to make an award to accomplish this end.

The case must therefore be remanded to the trial court for it to receive evidence and make a determination of this award.

In the remand, the following principle may be availed of by the parties: The real obligation to furnish the support for the second floor of the building established by the contract, Civil Code Article 2015, may be satisfied by the obligor (the owner of the premises) abandoning the building and the land under it to the obligee (the defendant) under the contract, Civil Code Article 2012.

Decree

Accordingly, the judgments of the court of appeal and the district court are reversed and set aside. The case is remanded to the trial court for consideration of defendant’s reconventional demand, not inconsistent with the views expressed herein. All costs of these proceedings to be taxed upon final disposition of these proceedings.

REVERSED AND REMANDED.

SUMMERS, J., concurs in the result and assigns reasons.

SUMMERS, Justice

(concurring).

For some time before the year 1950 Shon-galoo Lodge No. 352, Free and Accepted Masons (Lodge) maintained a meeting hall it had constructed as the second floor of the Roseberry Building in the small town of Shongaloo in Webster Parish. The rights of the Lodge were held under a 99 year lease dated January 16, 1918.

The Department of Highways found it necessary to acquire rights of way to reconstruct the Shongaloo-Arkansas Highway, La. No. 66, and to acquire certain lands adjacent thereto. The Roseberry Building was located within the area which the Department would absorb in the project. To accommodate this need, on April 24, 1950 the Department acquired the rights of way and paid the Lodge $1,500 to remove the second story of the Roseberry Building and cancel their 99 year lease.

Andrew Clark Burns was then a member of the Lodge. After an effort to locate a meeting hall on lands adjacent to a nearby church was unsuccessful, he granted a lease to the Lodge on November 22, 1950.

The lease set forth that he was then “constructing the bottom or first story of a frame building 30 by 60 feet, suitable for the placing of a second story by the . [Lodge], said second story to be used exclusively and solely for a meeting place for the said Masonic Lodge named herein.”

The agreement further provided that the Lodge would have “exclusive use and control of the . . . upper or second story of the said Burns building, and the same is hereby leased and rented to them for a period of NINETY NINE (99) YEARS from the date of this contract.” Burns, according to the agreement, was to have exclusive use and control of the lower or first story of the building.

In further consideration of the lease of the upper or second story to the Lodge by Burns it was stipulated that the Lodge, “in addition to building the said upper or second [story]”, agreed to pay the taxes on the second story and to keep the second story and the roof in repair “as may be necessary to keep it in suitable use as a Lodge room for use and control” of the Lodge.

Burns also agreed “to keep the foundation of the said building in good and substantial repair and condition and to keep the posts, walls and studding of the ground or first story of said building in such conditions that they will at all times substantially support the said upper or second story.”

The lease was to be considered terminated and null and void if the building was destroyed by fire or an Act of God.

The document was executed by the parties in authentic form before a notary and two witnesses.

After execution of the lease Burns completed the ground floor; and the Masons, using the $1,500 received from the Department, the materials salvaged from their meeting hall in the Roseberry building, and the volunteered labor of the membership, constructed the upper story. They have used and maintained these premises as a meeting hall until the present time.

Burns established a grocery store on the ground floor which he operated until 1953. He then leased that area to A. T. Matthews at a monthly rental of $25.

In 1955 Burns died and his widow and Cortez Burns Armour, his daughter, owned the property. Until the widow’s death, the lease arrangements with the Lodge and Matthews continued. After her death the arrangements were continued by the daughter as sole owner until Matthews died on April 17, 1974. Shortly thereafter the daughter Armour requested that the Lodge vacate the premises. The Lodge refused and responded by requesting that she repair, according to the contract, the deteriorated foundation and structural members supporting the upper floor of the building.

This suit followed on December 2, 1974 in which Cortez Burns Armour, as plaintiff, sought to have the agreement with the Lodge dated November 22, 1950 declared null and void; she also sought eviction of the Lodge and prayed that possession of the premises be delivered to her. The bases of plaintiff’s suit are that the lease contains no fixed, certain and determinate price as required by Articles 2669, 2670 and 2671 of the Civil Code, and that there exists no serious consideration to sustain the lease.

As defendant, the Lodge denied these allegations, asserting the validity of the agreement as a lease or, alternatively, as a donation inter vivos by Andrew Clark Burns to his Masonic Lodge. In reconvention the Lodge sought specific performance of the plaintiff’s obligation under the agreement to keep the foundation of the building in good and substantial repair.

After trial, judgment was rendered in favor of plaintiff declaring the agreement null and void for lack of a serious consideration. On appeal to the Second Circuit the judgment was affirmed. 330 So.2d 341. Certiorari was granted on defendant’s application to review the issues thus presented. 333 So.2d 245. While the matter was pending in this Court, before submission, defendants filed a plea of prescription of five and ten years to the plaintiff's action of nullity based upon Articles 3542 and 2221 of the Civil Code, respectively.

No pleas of prescription were filed in the trial court, and, although similar pleas of prescription had been filed in the Court of Appeal, they were not considered by that court, for they were filed after the case was submitted. In this Court, however, the pleas are timely and will be considered for the purpose of this concurring opinion.

“Prescription may be pleaded in every stage of a cause, even on the appeal, but it ought to be pleaded expressly and specially before the final judgment.” La. Civil Code art. 3464.

An “appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to submission of the case . . .” La. Code Civ.Pro. Art. 2163. This Court hearing a case on a writ of certiorari is considered as an appellate court within the contemplation of Article 2163. La.Const. art. V, § 5(F) (1974); Gulotta v. Cutshaw, 283 So.2d 482 (La.1973). Thus, this Court “may” in its discretion, consider peremptory exceptions filed here for the first time.

The exception to this rule lies in Article 3465 of the Civil Code to the effect that “prescription can not be pleaded in the Supreme Court, unless the proof of it appear from documents exhibited or testimony taken in the inferior court.” Finding that proof of the facts requisite to a consideration of the pleas of prescription appears from the documents and testimony received at the trial in the district court, no obstacle to adjudication of the issue in this Court is presented.

The Articles of the Civil Code relied upon to support defendant’s pleas of prescription provide:

“Art. 3542. The following actions are prescribed by five years:
That for the nullity or rescission of contracts, testaments or other acts.
That for reduction of excessive donations.
That for the rescission of partitions and guarantee of the portions.
This prescription only commences against minors after their majority.”
“Art. 2221. In all cases, in which the action of nullity or of rescission of an agreement, is not limited to a shorter period by [a] particular law, that action may be brought within ten years.”

Each of the foregoing articles applies to actions of “nullity or rescission” of agreements or contracts. Article 2221 is broader in scope and applies to all agreements, while Article 3542 applies to “contracts”, “reduction of donations” and “rescission of partitions”. The time difference is unimportant here, however, because the relevant period begins on November 22, 1950, the date of the contract, and extends to the date the plea of prescription was asserted, June 21, 1976, a period exceeding 25 years. Under either time period, therefore, more than sufficient time has elapsed to satisfy that element of the prescriptive plea.

Plaintiff’s principal defense to the plea of prescription is that the time periods of five and ten years allowed to institute actions for nullity or rescission of agreements or contracts, which Articles 3542 and 2221 establish, do not apply in this case because the nullity complained of by plaintiff is absolute, not relative, and as such the action is imprescriptible.

Agreements legally entered into have the effect of laws on those who have formed them. They cannot be revoked, unless by mutual consent of the parties, or for causes acknowledged by law. They must be performed in good faith. La. Civil Code art. 1901.

All things that are not forbidden by law may legally become the subject of, or the motive for, contracts. La. Civil Code art. 1764. Thus, conditions in contracts which are impossible, repugnant to moral conduct, or prohibited by law are null and render void the agreement which depends on them. La. Civil Code arts. 11, 1892, 1895, 2031. These conditions do not exist in the contract before the Court. ■ .

The Louisiana Civil Code contains no definition of absolute and relative nullity. However, the concepts of absolute and relative nullities are found in the Codes of France and Louisiana. From the writings of Demolombe, Laurent and Planiol, definitions have been formulated which are consistent with these concepts:

“(1) A relatively null contract can be validated by ratification or confirmation. Such ratification is a renunciation of the action for annulment. The contract becomes as valid as if it had been regular at its formation. Conversely, an absolutely null contract cannot be ratified. The nullity exists before any judgment is pronounced, because an absolutely null contract, although having the appearances of a valid agreement has no legal existence. It cannot be ratified because it is impossible to confirm a non-existence.
“(2) The right of action to declare a relative nullity is available only to the incapable person or to one whose consent has been defective. With regard to all other persons, including the other party to the contract, the contract is valid. Conversely, any interested party may have the court declare the nullity of an absolutely null contract.
“(3) The right to assert a relative nullity may be lost by prescription, but the right to have the nullity of an absolutely null contract is imprescriptible.
“(4) The relative nullity does not affect the contract at its formation. The agreement produces ordinary effects until it is annulled by a judgment, at which time its nullity is retroactive. Conversely, a cause of absolute nullity prevents the formation of a contract. Consequently no contractual effects are ever produced.” Note, 38 Tul.L.Rev. 755, 756 (1964). See generally Pearlstiae v. Mattes, 223 La. 1032, 67 So.2d 582 (1953); Whitney National Bank v. Schwob, 203 La. 175, 13 So.2d 782 (1943).

In referring to circumstances which produce the vice of consent, which gives a right of action to declare a relative nullity, Pla- : niol cites as an example the pecuniary damage a juridical act causes the person who has entered into it. The vice of consent arises in the case of pecuniary damage, he writes, in two situations: where the party affected knew of the damage he would sustain or where he did not know of it. In the first case, according to Planiol, his consent must not have been free, for he is considered to have consented under the influence of a pressing necessity; in the second case, it is error, which also vitiates valid consent. The defective consent permits the party involved to assert an action of rescission based upon the relative nullity. Planiol, Civil Law — Treatise, Vol. I, Part I, No. 284 (English Translation, La. State Law Institute).

These principles are applicable to the claim asserted here that the lease contract should be declared null for lack of a serious consideration.

A lease is a “contract” by definition. La. Civil Code art. 2669. The principal contention that the consideration in the lease in question is not serious is a claim that the lease is relatively null because the .party asserting the nullity claims a pecuniary damage by the contract of lease. The action for nullity or rescission is, therefore, lost by the passage of time prescribed by law. La. Civil Code art. 3542. The plea of prescription of five years should therefore be maintained.

A right of action cannot be sustained forever; issues of law must have a resolution, either by affirmation or rejection in a court of law, or by the passage of time. One against whom a cause of action exists must be eventually liberated of the apprehension it creates. Articles 2221 and 3542 of the Civil Code provide for this liberation. Lee Lumber Co. v. International Paper Co., 321 So.2d 42 (La.App.1976), cert. denied, 324 So.2d 423. By the long and continued acquiescence the lessor has tacitly approved the lease.

Furthermore, in firm reliance upon the contract, the Lodge has, over the years, made significant improvements and repairs to the building at considerable expense and with volunteered labor by its members.

The contract provision requiring plaintiff to maintain the foundation and structure of the building supporting the second floor occupied by defendants does not lend itself to specific performance. When the contract requires continued supervision by the Court, as it would here, and necessitates personal services on the part of the lessor for its accomplishment, specific performance will not be required.

In my view the per curiam opinion of the majority fails to meet the issues or give reasons for its judgment. I therefore concur in the result only for the reason I have assigned.


source: Caselaw Access Project

author: TATE, Justice. DIXON, Justice

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Kenny REEVES, Appellant.
    No. 58173.
    Supreme Court of Louisiana.
    Jan. 24, 1977.

      Herman I. Stewart, Jr., Kay, Stewart & Nichols, De Ridder, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Alfred R. Ryder, Dist. Atty., Terry J. Johnson, Asst. Dist. Atty., Oakdale, for appellee.
   TATE, Justice.

We granted certiorari, 337 So.2d 522 (La. 1976), to review the defendant’s conviction for unauthorized use of movables, La.R.S. 14:68, for which he received a suspended 30-day sentence and was fined $100.

Facts.

The conviction is based on an incident involving the catching and selling of wild horses of the value of $71. The accused, a schoolteacher, had received permission from Mrs. Wesley Miller to catch and sell some wild horses which had belonged to her deceased husband.

The defendant caught one in a pasture on the west side of the highway and shared the proceeds with Mrs. Miller, per the agreement. He told her he would try to catch some more later.

The accused then openly organized another expedition at his school to catch some more Miller wild horses. On this expedition, the group captured three wild horses on another pasture where horses owned by the Millers ran, some twelve miles away from the first site, but on the east side of the highway.

The present charge was brought against him by Leon Miller, another Miller co-owner, on the basis that by intra-family partition the horses in this pasture on the east side of the highway belonged to him, not to Mrs. Wesley Miller (whose horses were only on the west side).

Mrs. Wesley Miller testified that, after the incident, she was informed that the horses in the east pasture had been given to Leon Miller by Levi Miller, her father-in-law, before his death. Until then, she had apparently assumed her late husband owned an interest in these Miller horses, as he did in those horses in the west pasture.

She further stated that she had expressly given the defendant Reeves permission to take horses only from the west pasture (undoubtedly owned by her husband Wesley). She conceded, however, that Reeves “might have took it for granted” that her permission was to take all Miller horses, whether in the east or west pasture.

Essentially based on the circumstance that Mrs. Miller’s permission to Reeves was to take horses only from the west pasture, the trial court found that Reeves’ taking of the horses from the east pasture (at best, by her testimony, only owned in part by Wesley Miller) was unauthorized and without the consent of their true owner. Also, essentially based on this circumstance and also upon the distance between the two pastures, the trial court held that the defendant’s intentional taking of Leon Miller horses was not excused by any “reasonable ignorance of fact or mistake of fact”, La. R.S. 14:16.

The defendant’s contention that the evidence does not prove the crime charged.

The defendant contends that no evidence at all proves the crime with which charged.

(1)

He first argues, with considerable force, that the preponderance of the evidence proves that, pursuant to his permission from Mrs. Wesley Miller, he took the Miller horses from the east as well as the west pasture under the reasonable belief that he had permission from their owner to catch them and sell them and share the proceeds with her.

The issue thus noted is properly raised by a motion for acquittal, La.C.Cr.P. art. 778, or by a motion for a new trial, La.C.Cr.P. art. 851(1). State v. Butler, La., 331 So.2d 425.

If we construe the oral motion at the final argument before the trial court as a motion for acquittal, we are nevertheless unable on appellate review to reverse the present conviction.

The trial court’s denial of a motion for acquittal may be reversed on appeal only where there is a total lack of evidence to prove the offense or any element of it. State v. Douglas, 278 So.2d 485 (La.1973). Sufficiency of the evidence is not within the scope of appellate review, which is restricted to issues of law. La. Const, of 1974, Article 5, Section 5(C).

Accordingly, this court cannot reverse the trial court’s denial of a motion for acquittal where there is some evidence from which the trier of fact can reasonably conclude the crime and every element of it has been proved. State v. Calvin, 337 So.2d 500 (La.1976); State v. Williams, 310 So.2d 513 (La.1975); State v. Pryor, 306 So.2d 675 (La.1975).

The defendant’s contention that no evidence proves that he took the horses without their owner’s consent depends chiefly upon the consent he undoubtedly obtained from Mrs. Wesley Miller to take some Miller horses. He argues that, if he was mistaken in assuming that the horses in the east pasture belonged to her and were within the scope of her permission, this was a reasonable mistake of fact which precludes the requisite criminal intent. La.R.S. 14:16.

Nevertheless, based upon Mrs. Miller’s testimony as well as the entirely different location of the pastures some twelve miles apart, we are unable to hold that no evidence at all supports the trial court’s finding that the accused did not have Mrs. Miller’s consent to take the horses in the east pasture. Likewise, for this reason we cannot say that no evidence supports the trial court’s standing that the accused could not reasonably believe that Mrs. Miller’s permission to him to take the horses in the west pasture also included permission to take the horses in the east one.

Since there is some evidence upon which the trial judge could base his finding of guilt, the limitations upon the scope of criminal review prevent us from considering whether in our view it sufficiently proves guilt.

(2)

The defendant further contends that, if any criminal intent at all is proved, it is to deprive the owner of his property permanently, not temporarily. Thus, he argues, the crime of theft, La.R.S. 14:67 may have been proved, but not that of unauthorized use of movables, La.R.S. 14:68: The chief difference between theft and the latter lesser crime is the lack of an intention in the latter case to deprive the owner permanently of his property. See Official Revision Comment, La.R.S. 14:68.

However, La.R.S. 14:5 provides: “An offender who commits an offense which includes all the elements of other lesser offenses, may be prosecuted for and convicted of either the greater offense or one of the lesser and included offenses. * * * ” Cf. also State v. Madison, 319 So.2d 912 (La.1975) and State v. Cooley, 260 La. 768, 257 So.2d 400 (1972). (Of course, conviction or acquittal of the lesser charge precludes subsequent prosecution for the greater offense, by reason of double jeopardy principles. La.C.Cr.P. art. 596.)

Unauthorized use is a lesser and included offense of theft, because theft includes all the elements of unauthorized use — plus the intent to deprive permanently (instead of only temporarily) the owner of his property. Unauthorized use is, in fact, a responsive verdict to theft. La.C.Cr.P. art. 814(A)(23).

Accordingly, any evidence that the accused took the property of another with the intent to deprive him of it permanently (i. e., theft) is likewise sufficient to prove the lesser offense here charged (i. e., unauthorized use), even though in the latter case the requisite intent is only to deprive the owner temporarily of his property. We therefore find no merit to the defendant’s contention.

The defendant’s contention that the trial court committed an error of law.

We granted certiorari primarily because we thought the trial court had erroneously held that an accused could be guilty of unauthorized use if he negligently used another’s property without the latter’s permission. To the contrary, the crime requires criminal intent. State v. Kelley, 241 La. 224, 128 So.2d 18 (1961).

The basis for this contention arose because of a trial court ruling at the conclusion of a preliminary examination. The trial court there held that there was not probable cause to hold the accused for theft, originally charged, because the evidence proved no specific intent to take Leon Miller’s horses.

As a result of that ruling, the state filed a new information charging the accused with unauthorized use instead of with theft. The evidence taken at the preliminary examination was, by stipulation, submitted to the trial court for its ruling upon whether, on the basis of the same evidence, the accused was guilty of the lesser charge.

The defendant persuasively argues that, if the trial court found no criminal intent to take the property of another, the accused could not be convicted either of theft or of unauthorized use. If indeed the trial court held to the contrary, the record would present a reversible error of law.

Our difficulty is that the record does not demonstrate that, in finding the defendant guilty of the lesser charge, the trial court did so as a result of an error of law that guilt of the lesser charge does not require criminal intent. The record is silent as to whether, by the time of the trial on the lesser charge, the trial court had informed itself as to the correct legal principles applicable.

In a trial before a judge without a jury, the proper method, of preserving such an issue of law for appellate review is to request the judge to charge himself before the verdict as to the disputed issue of law, La.C.Cr.P. art. 781, and to object to it if incorrect, La.C.Cr.P. art. 841, or if the trial court refuses to give a special charge correctly stating the law, La.C.Cr.P. art. 807. State v. Adams, 154 La. 873, 98 So. 402 (1923); State v. Rose, 147 La. 243, 84 So. 643 (1920).

In the present instance, in the absence of such procedure, we are unable to determine that the trial court decided the guilt of the accused on the basis of an incorrect appreciation of the legal principles applicable.

Decree

Finding no reversible error within the limitations of the scope of appellate review, we must affirm the conviction and sentence.

AFFIRMED.

DIXON, J., dissents with reasons.

DIXON, Justice

(dissenting).

I respectfully dissent. If there is no intentional taking of property of another in the theft charge, and if the unauthorized use charge was tried on the same evidence, there was no intentional taking or use of property of another in the unauthorized use case.

      . In fairness to the defendant, it should be pointed out that considerable testimony in the record indicated a common belief that the late Levi Miller, the brother of Leon and father of Wesley, had given the horses to Wesley.


author: TATE, Justice. SUMMERS, Justice

text:
    The BATON ROUGE WATER WORKS COMPANY, Plaintiff-Appellee, v. LOUISIANA PUBLIC SERVICE COMMISSION, Defendant-Appellant.
    No. 58307.
    Supreme Court of Louisiana.
    Jan. 24, 1977.
    Rehearing Denied March 2, 1977.

      Marshall B. Brinkley, Gen. Counsel, Louisiana Public Service Commission, Baton Rouge, for defendant-appellant.
    F. W. Middleton, Jr., Taylor, Porter, Brooks & Phillips, Baton Rouge, for plaintiff-appellee.

         Summers and Dennis, JJ., were both of the opinion that a rehearing should be granted.

   TATE, Justice.

The plaintiff (“Baton Rouge Water”) sought judicial review in district court of the defendant Commission’s failure to authorize higher rates so as to produce a 13% return on equity, as applied for, instead of the 10.5% allowed by the commission. The district court found the Commission’s allowance of only 10.5% profit arbitrary, as contrary to the evidence, because allegedly the uncontradicted testimony of Baton Rouge Water’s expert showed the utility to be entitled to the higher rate. The court then modified the Commission order so as to allow the higher rate of return on equity.

The Commission appeals to this court as authorized by Art. 4, Section 21, La.Const. of 1974. It contends that the trial court erroneously placed the burden on the Commission of proving the petitioner’s demand to be unreasonable and that it failed to give proper weight to the Commission’s expertise in arriving at the proper rate of return on the investment in a closely-held local utility which obtains its equity capital by retaining earnings instead of paying full dividends.

The central issue of this appeal concerns to what extent, if any, the Commission may disregard uncontradicted expert opinion testimony before it in determining the rate of return on equity to be allowed for rate making purposes.

Facts

Baton Rouge Water applied to the defendant Commission for authority to charge increased rates so as to produce additional gross revenues of $1,341,100, which included a 13% return on equity. The additional revenues were necessary to permit Baton Rouge Water sufficient funds to meet increased costs and to expand operations, including the increased cost of borrowing funds, as well as allegedly to allow it a just and reasonable return on thd applicant’s investment.

After hearing, the Commission entered an order allowing increased revenues of $874,250, thereby allowing a return on equity of only 10.5%. Baton Rouge Water Works appealed to the district court, alleging that its uncontradicted expert testimony (based on a study of eight publicly quoted water company stocks) showed that 13% return of equity was necessary in terms of raising and supporting equity capital. This expert witness testified that the eight water companies used by him were compa-rables equivalent to Baton Rouge Water.

The Commission introduced no opposing expert evidence. Nevertheless, in an unar-ticulated order which concluded that the requested increase in revenues was excessive, it authorized increased rates sufficient to produce additional revenues of $874,250 instead of the $1,341,000 prayed for (i. e., producing a return on equity of 10.5% instead of the 13% sought).

In reversing the Commission and in allowing the full increased revenues sought, the district court felt that the Commission was arbitrary in not accepting the uncon-tradicted testimony of the applicant’s expert.

The Expert Opinion Testimony

The Commission concedes that its findings or conclusions may be set aside on judicial review as arbitrary, if not supported by the evidence. Louisiana Gas Service Co. v. Louisiana Public Service Commission, 256 La. 536, 237 So.2d 369 (1970); Southern Pacific Transportation Co. v. Louisiana Public Service Commission, 254 La. 23, 222 So.2d 499 (1969). However, the Commission points out, the evidence of the expert in the present record indicates on its face that Baton Rouge Water is entitled to a lesser rate of return than that to which he testified.

The general rule is that a regulatory body may use its own judgment in evaluating evidence as to a matter within its expertise; it is not bound by even uncontra-dicted testimony of experts which amount to mere opinions on their part. 2 Davis, Administrative Law Treatise, Section 14.13 (1958). Here, as the Commission points out, the opinion of Baton Rouge Water’s expert is based upon his necessarily subjective evaluation of the implications of certain facts. We are cited to no authority which requires the Commission to accept without deviation the expert’s opinion of the proper rate of return on equity to be ordered by it — at least where the factual data on which this opinion is based is reasonably susceptible to a different interpretation by the Commission, within its constitutional authority to make such fact and rate determinations based upon its own reasonable interpretation of the facts upon which the expert bases his opinion, as well as of the record as a whole.

The Commission suggests that the testimony of Baton Rouge Water’s expert that the applicant is entitled to a 13% return on equity indicates on its face reasons why the Commission need not accept it as conclusive:

In the first place, the 13% rate proposed is founded on an average of the earnings-price ratios of eight utilities which, without supporting testimony, the expert assumed were comparable. See footnote 2. These publicly-held companies might be, but need not necessarily be (and are not shown to be), comparables insofar as the proper rate of return on equity for a closely-held corporation such as is Baton Rouge Water.

Further, the expert based his opinion of a proper rate of return on equity on the earnings-price ratio of these possibly dissimilar utilities. This ratio is based on the earnings per share of the eight selected utilities based on the market value of their stock on a given day. In the absence of any shown relationship of the market value of the shares to the book value of the utility’s capital, for rate-making purposes the rate of earnings so reflected are not indicative of the rate of return on equity of these utilities. See Southern Bell Tel. & Tel. Co. v. Louisiana Public Service Commission, 239 La. 175, 118 So.2d 372, 386-87 (I960).

Finally, the Commission contends that the testimony of the expert on its face shows that he utilized a “fair value” concept of equity, not the “original cost” rule historically followed by Louisiana. Cf., Southern Bell Tel. & Tel. Co. v. Louisiana Public Service Commission, 239 La. 175, 118 So.2d 372, 386 (1970). Thus, the Commission suggests, it could disregard opinion testimony on a formula not accepted in Louisiana. Id.

Conclusion

The chief difficulty with the Commission’s argument is that it is based upon contentions made in brief rather than upon express findings of the Commission to such effect.

For purposes of judicial review, and in order to assure that the Commission has acted in accordance with law, it is usually preferable that, in a contested case involving complex issues, the administrative agency makes findings as to the central disputed issues and explain the reasons for its determination. Cf.: Louisiana Power and Light Co. v. Louisiana Public Service Commission, 324 So.2d 430 (La.1975); White v. Louisiana Public Service Commission, 259 La. 363, 250 So.2d 368, 373 (1971); Hunter v. Hussey, 90 So.2d 429 (La.App. 1st Cir. 1956), certiorari granted. “It is enough if the Commission proffers findings and conclusions sufficiently detailed to permit reasoned evaluation of the purposes and implications of its order.” In re Permian Basin Area Rate Cases, 390 U.S. 747, 814, 88 S.Ct. 1344, 1384, 20 L.Ed.2d 312 (1968). See also 2 Davis, Administrative Law Treatise, Chapter 16 (1958); 2 Cooper, State Administrative Law 465-78 (1965); Schwartz, Administrative Law, Sections 140, 141 (1976).

We have not before now, however, held that such formal findings and reasons are sacrosanct to the validity of an administrative determination, unless required by statute. Nevertheless, Louisiana courts have on occasion remanded for this purpose, when unable to review the agency determination in the absence thereof. See Louisiana decisions cited in the preceding paragraph.

The general principle governing judicial review is that, where some evidence as reasonably interpreted supports the regulatory body’s determination, the orders of the Commission and other regulatory bodies exercising discretionary authority are accorded great weight and will not be overturned by the courts in the absence of a clear showing that the administrative action is arbitrary and capricious. Truck Service, Inc. v. Louisiana Public Service Commission, 263 La. 588, 268 So.2d 666 (1972) and decisions therein cited.

In the present instance, the precise issue before us for review is relatively simple: Was the administrative agency arbitrary in not accepting the uncontradicted testimony of the utility’s expert that it was entitled to receive a 13% return on equity, but in instead allowing the utility only 10.5% (but almost two-thirds of the additional revenues sought)?

After reading the brief record, we are unable so to hold.

The expert’s opinion testimony is that Baton Rouge Water is entitled to a 13% return on equity. This opinion is based upon the average earnings-price ratio of eight utilities on a given day, at least two of whom have earnings-ratios below the 10.5% return on equity ultimately allowed by the Commission. See footnote 2 above.

The earnings-price ratios of other utilities, while relevant, are only one factor along with others, in the Commission’s determination of a rate of return, and one which must be used with circumspection due to the difficulty if not impossibility of true comparability of different utilities. See footnote 4 above and surrounding text.

Further, there can be no standard rate of return applicable to all utilities under all circumstances. The question of what constitutes a reasonable rate of return depends upon the peculiar situation of each utility, which is largely reflected in its own costs of capital. United Gas Pipe Line Co. v. La. Public Service Commission, 241 La. 687, 130 So.2d 652 (1961); Southern Bell Tel. & Tel. Co. v. La. Public Service Commission, 232 La. 446, 94 So.2d 431, 436 (1957). The present closely-held self-capitalized company is not shown to be truly comparable with the publicly-held companies used by the expert as a basis for his opinion. See LaSalle Telephone Co. v. Louisiana Public Service Commission, 245 La. 99, 157 So.2d 455 (1963).

It would have been preferable if the Commission order, in finding that the requested increase was excessive, had specifically stated (for reasons such as are noted) why the Commission rejected or modified the 13% return on equity which the defendant’s expert opinion stated was necessary. If the Commission had done so, this court could not, within the limitations of judicial review, hold that the Commission acted arbitrarily in so rejecting and modifying the return on equity which the expert believed to be necessary.

Under these present circumstances, where the findings and reason for the Commission’s action are necessarily implied by the record, and where our study of the brief administrative record shows that on the-simple issue presented for judicial review' sufficient evidence supports the administrative determination, little purpose would be served by a remand for such formality. As stated under somewhat similar circumstances by the Florida Supreme Court, “it would be little more than a gesture to reverse the judgment and direct that the administrator be required to specify what so obviously was the reason for his action * * Little Man’s Club v. Schott, 60 So.2d 624 (Fla.1952). See 2 Davis, Administrative Law Treatise, Sections 16.07, 16.14 (1958).

The courts may not on judicial review substitute their judgment for the Commission’s and overturn an administrative determination not shown to be clearly arbitrary as contrary to law or to the evidence heard by the regulatory body. Truck Service, Inc. v. Louisiana Public Service Commission, 263 La. 588, 268 So.2d 666 (1972) and decisions therein cited. No such arbitrariness being here demonstrated, the district court was in error in modifying the Commission’s determination.

Accordingly, we reverse the judgment of the district court which modified the Commission order; and we dismiss this suit, at the cost of the plaintiff-appellee.

REVERSED AND DISMISSED.

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice

(dissenting).

On May 21, 1974 Baton Rouge Water Works Company applied to the Louisiana Public Service Commission for approval of an increase and adjustment of rates and charges for water utilities service sold to the City of Baton Rouge and the surrounding area. The application requested authority to increase the Company’s rates to provide additional gross revenues of $1,341,-100, based upon financial results of the twelve month period ending March 31,1974.

After notice, a hearing was had on July 15, 1974, at which the Company offered testimony and filed evidence and exhibits. No opposition or objection to the Company’s application was made at the hearing.

The following is a summary of the expert testimony presented by the Company at the hearing. The public utilities of this country today face by far the worst financing problem in their history. The interest rates on the bonds they sell have more than doubled over the last ten years and the cost of raising and supporting equity capital in terms of required earnings and dividends has gone up even more. This is due to the present high rate of inflation. It is a long term historical fact that inflation is something that must be paid for in the interest rate and in the cost of capital in general.

Ten years ago Baton Rouge Water could have sold long term bonds at a cost of 5% or less. Today they would do well to do the same thing at a cost of 10%, and if inflation is not abated this cost could go higher. High grade corporate bonds in Britain, where inflation is worse than here, now sell to yield about 16Y2.

The high interest rates that utilities now have to pay is probably well understood and recognized by regulators. What has not yet been adequately recognized by them has been the drastic increase in the cost of equity capital. Bonds and stocks are of course interchangeable forms of investment and what happens to the yield on bonds directly affects what investors expect from stocks. It couldn’t be any other way.

In the years 1963 to 1965 when utility stocks were in favor with investors, and not in disfavor as they are now, most electric stocks sold in the range of 18 to 22 times earnings. They now mostly sell in the range of 6 to 8 times earnings. Most of these stocks are selling way below book value, which means that new stock can only be sold at the cost of seriously diluting the position of the old stockholders. This in turn can only lead somewhere along the line to a cut in dividends per share. From the Consolidated Edison experience, it means being cut off from all types of financing, bond and stock alike.

Water company stocks, while not so well publicized because there are so few of them, fared nearly as badly as electric stocks. A study of the behavior of 8 water company stocks, which is about all that are publicly quoted, is presented. This study shows that in the years 1963 to 1965 it required only about $6.25 of reported earnings to support $100 of market value of these stocks on average. As of May 31, 1974, it required over $13 of earnings to do the same job. That indicates more than a doubling in the cost, in terms of earnings, of raising and supporting equity capital by these 8 water companies. From that point the situation has deteriorated further. Taking into account the cost of selling new shares, and depression in the market resulting therefrom, it was concluded that these water companies would require a 15% return on equity capital to enable them to realize from the new shares as much as the book value of the old shares.

A 15% return on book equity is recommended for Baton Rouge Water. This represents only a 9.1% return on this equity revalued in dollars of present purchasing power. By past standards 15% on book equity looks high, but it doesn’t any more— not in a period when the banks are charging their most credit worthy borrowers 12% for short term money, often demanding compensating balances besides which increases the effective rate. A 15% return on equity is not over 5% more than the likely present cost of bond money. Back in the period when bonds yielded 5% or less, a 10% return on equity to a utility like Baton Rouge Water was considered reasonable and most utilities were then earning more than this. The testimony indicates that the cost of equity capital has gone up at least as much as the cost of debt capital.

Baton Rouge Water Works has not sold new stock to the public, at least for a long time. It has added the required equity capital by retaining most of its stockholders’ earnings. This is not a good reason why it should be discriminated against in the rate of return allowed. If this were the case, it would be in the stockholders’ interest for the company to pay out all its earnings, and raise new equity capital by selling stock.

The matter was taken under advisement and on November 22, 1974 the Commission issued its order finding “that the requested increase in revenues was excessive.” No other findings or reasons were assigned. Accordingly, revised schedules of rates were ordered filed to provide additional gross operating revenues of not more than $874,-250 annually in lieu of the $1,341,000 requested by the Company.

Pursuant to Article VI, Section 5, of the Constitution of 1921 and Article IV, Section 21(E), of the Constitution of 1974 the Company appealed the Commission’s order to the Nineteenth Judicial District Court.

On first consideration the district court affirmed; however, on the Company’s application a new trial was granted limited to reargument. On reconsideration the trial judge found that “the record is barren of any evidence which would suggest that the 13% return on equity requested by petitioner is unreasonable.” The trial judge was of the opinion that in the absence of such evidence, the court has no alternative but to conclude that the Commission’s order was arbitrary and unreasonable. Accordingly, judgment was rendered, setting aside the Commissioner’s order and granting the necessary rate increase to afford gross revenue annually of $1,310,747 as requested by the Company.

From the district court judgment the Commission appealed to this Court, specifying as grounds for reversal the allegations that the judge of the district court 1) shifted the burden of proof,. 2) failed to give weight to the Commission’s expertise, and, alternatively, 3) should have remanded the case to the Commission.

These contentions are argued together and the principles involved are interrelated to such an extent that they will be treated together.

The finding of the trial judge that there was no evidence to refute the proof of the Company does not shift the burden of proof to the Commission to prove that the requested return on equity is unreasonable. The burden of proving reasonableness rests upon the applicant. However, when the applicant does establish the reasonableness of the requested rates, the Commission may not deny the request unless there is an evidentiary basis for its action. LaSalle Telephone Company v. Louisiana Public Service Commission, 245 La. 99, 157 So.2d 455 (1963); Missouri Pacific Railroad Company v. Louisiana Public Service Commission, 238 La. 243, 115 So.2d 337 (1959); Gulf States Utilities Co. v. Louisiana Public Service Commission, 222 La. 132, 62 So.2d 250 (1952).

The absence of any opposition to the Company’s application plus the fact that there is no evidence to contradict their exhibits or to refute the credible testimony of their experts is not of the Company’s making. In the absence of such countervailing or rebuttal evidence the Company has discharged its burden of proof if it makes a showing of reasonableness. While this situation does not necessarily shift the burden to the Commission to prove that the rates requested are unreasonable, in the absence of evidence to contradict the showing of reasonableness the Commission may not reject the proof thereby established.

Some evidence is required to support the order of the Commission, whether it be produced by the Commission, by opponents, or, as may happen at times, by self-defeating evidence of the applicant. Although we cannot say who must bring this countervailing evidence to the record, it is sufficient to say it must be there. In any case, the presumed expertise of the Commission cannot alone serve to refute facts amply established by proof in the record.

In Mississippi River Fuel Corporation v. Federal Power Commission, 82 U.S.App. D.C. 208, 163 F.2d 433 (1947) the court rejected a commission contention which would have resulted in perfunctory judicial review, stating:

“. . . The Commission says that a reviewing court is limited to a consideration of the ‘end result’, the rate, or price, prescribed by the final rate order for the commodity or service.
“. . . The Commission seems to contend that the court must examine the rate per se, as an abstraction, or as a naked economic fact, divorced from the elements of which it is composed and regardless of its effects; and if it appears fair and reasonable upon such examination, it must stand. Such contention is without merit, either upon reason or upon authority and moreover is impossible of practice.
“The Commission says, ‘The Court, unlike the Commission, is not an expert body * * * Be that as it may, the Commission, even though expert, is forbidden to be arbitrary. And the courts are directed to prevent it from being so. The Commission cannot, and we do not understand it to claim that it can, shield arbitrariness by averments of its own infallibility, by technical expressions, or by failure to state adequate reasons for its conclusions. . . . ”

Pertinent principles are also stated by this Court.

“It is the settled jurisprudence that where the findings and conclusions of the Commission are not supported by the evidence, the order is unreasonable, arbitrary and unwarranted, and it is the duty of the court to vacate such an order. . ” Louisiana Gas Service Company v. Louisiana Public Service Commission, 256 La. 536, 237 So.2d 369 (1970).

It is essential to the exercise of this Court’s appellate jurisdiction, La.Const. art. IV, § 21(E) (1974), that the basis for the Commission order be established by the record. For it is not only the right but the duty of this Court to determine whether the order was justified by the facts. Railway Express Agency v. Louisiana Public Service Commission, 243 La. 518, 145 So.2d 18 (1962).

Here there is no evidence to contradict what I consider to be a prima facie showing by the Company that its proposal was just and reasonable.

Remand, which the Commission seeks, should only be permitted in those instances where the party seeking that result has made a reasonable effort to support its position with proof at the trial. In the case at hand the Commission made no effort whatsoever in this respect. The delays already involved in this case and the lack of any indication in this record that the Commission could or would refute the Company’s position by proof do not warrant a remand in the interest of justice. Harris-Irby Cotton Co. v. State, 31 Okl. 367, 121 P. 642 (1912).

I would affirm the judgment of the district court.

      . Actually, this expert’s opinion was that a 15% return on equity was necessary. However, Baton Rouge Water only seeks 13%.

      . Actually, the expert testified: “While the Baton Rouge Water Works Company has no common stock quoted on the public markets, it seems reasonable to assume that the cost to it of raising and supporting equity capital would move in line with that of other utilities in the same line of business.”
      We also note that, in the most recent year, two of the eight “comparables” relied upon by him had an earnings-price ratio (alleged by the expert to be equivalent to a return on equity) less than the 10.5% return on equity allowed Baton Rouge Water by the Commission: Indianapolis Water, 10.15% ; North Haven Water, 9.28%. Two others had an earnings-price ratio less than the 13% return on equity sought by Baton Rouge Water and allowed by the trial court: Hackensack Water, 12.46%; S. Cal. Water, 12.45%. (The “earnings-price ratio” was derived by the expert by dividing the earnings per share by the mean of the high and low market quotes for the particular stock on May 31, 1974.)

      . For instance, unlike the “comparables”, Baton Rouge Water finances its expansion from surplus earned for its investors rather than by diluting their capital ownership by offering stock to the public. This court has recognized that this may be a valid distinction for differences in rate treatment. LaSalle Telephone Co. v. Louisiana Public Service Commission, 245 La. 99, 157 So.2d 455 (1963). Cf. also Southern Bell Tel. & Tel. Co. v. Louisiana Public Service Commission, 239 La. 175, 118 So.2d 372, 385 (1960).

      . We have stated that the earnings-price ratio “serves as a reasonably reliable guide in fixing the cost of equity capital when it is used with the exercise of an informed judgment based not only on the statistical data but also on the

        other relevant factors which cannot be measured precisely.” United Gas Pipe Line Co. v. Louisiana Public Service Commission, 241 La. 687, 130 So.2d 652, 660 (1961). (Italics supplied) We also noted that for comparable purposes the earning studies of other companies “must be used with circumspection. It is difficult, if not impossible, to identify other business undertakings that are truly comparable.” Id. at 130 So.2d 660-61. See also: In computing the rate of return to stockholders, “The procedure used here is that of ascertaining the appropriate rate from a study of earnings-price ratios, which rate is usually adjusted somewhat on the basis of the informed judgment of the Commission.” Comment, 22 La.L.Rev. 257, 261 (1961). In the present case, for example, the Commission cites market-to-book ratios from certain authoritative publications indicating that in 1974 the market prices of seven of the eight utilities was from .411 to .800 of their actual book value, which had the effect of reducing the actual rate of return on equity for these utilities.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Isaiah HALL.
    No. 58444.
    Supreme Court of Louisiana.
    Jan. 24, 1977.
    Rehearing Denied March 2, 1977.

      Laurence D. Rudman, Rudman & Howard, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Gretna, for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged Isaiah Hall with possession of heroin with the intent to distribute in violation of LSA-R.S. 40:966(A). After a jury trial, defendant was found guilty as charged. The court sentenced him to life imprisonment.

He appeals his conviction and sentence, relying upon fourteen assignments of error.

ASSIGNMENTS OF ERROR NOS. 22, 24, AND 25

In these assignments, defendant asserts that his right to privacy was violated when the police officers entered into a private dwelling without a warrant. Amendment IV of the United States Constitution; Article I, Section 5 of the Louisiana Constitution of 1974.

Defendant contends that without a warrant or probable cause for arrest, police officers entered his motel room, held him at gun point, searched his room, and found two plastic bags containing heroin and other narcotics paraphernalia.

At the hearing on the motion to suppress, the following evidence was adduced:

Agent Richard Dennis of the Jefferson Parish Police Department Narcotics Division, acting upon information supplied by a confidential informant, whose reliability in the past led to narcotics arrests in Jefferson Parish, sent the confidential informant to Room 229 of the Sentry Motel in Gretna, Louisiana, to purchase three packets of heroin. Following standard police procedure, Agent Dennis searched the confidential informant but found no money or narcotics on his person. He then gave the informant thirty-six dollars with which to purchase the three packets of heroin. Agent Dennis proceeded to a place where he could observe the actions of the informant and there witnessed the informant knock on the door of Room 229 of the Sentry Motel and gain entrance. The agent then witnessed the informant exit that room and proceed to a pre-arranged meeting place where the informant produced three tin-foil packets. The agent conducted a field test and found the packets contained heroin. He searched the confidential informant and found no other narcotics or money. The informant told Agent Dennis that Isaiah Hall and James Lewis, also known as “Cadillac Slim” and “Slim,” were in possession of a large quantity of heroin and that the heroin might be moved.

A search warrant was secured for Lewis’s residence, 1815 Joanne Place in New Orleans. Both New Orleans and Jefferson Parish Police Officers executed the warrant. Mrs. Lewis and her children were present. Certain non-contraband articles were seized along with $1,190 in cash and an envelope bearing the words: “Call Slim at 366-4551, Room 229.” The officers traced this telephone number to the Sentry Motel in Gret-na where the informant made the buy from Isaiah Hall with Lewis present. Fearing that the occupants of Room 229 would receive word of the search of Lewis’s residence or that the occupants had already received word, the officers returned to the Sentry Motel at approximately 5 a.m. and obtained a pass key from the manager. They knocked on the door of Room 229 and announced that they were police officers. Receiving no response, but hearing movements inside, they opened the door with the key and entered with guns drawn. The officers testified that they feared the contraband would be destroyed. The officers found defendant, a woman, and a small child in the bed. They ordered the occupants out of bed. Defendant was arrested and read his “Miranda rights.” The officers explained the purpose of the entry to defendant and told him that they would obtain a search warrant before fully searching the room. A cursory “Chimel” search was conducted for weapons within the reach of the occupants. Within a few minutes Agent Dennis left the room “secured” and obtained a search warrant. Within approximately sixty minutes of the entry into the motel room, Agent Dennis returned with the search warrant. A full search was then conducted. There officers found two plastic bags containing a brown substance which they field tested and found to contain 9% heroin. The officers found the heroin above the tiles of the suspended ceiling, along with a small tin foil package of white powder. When tested, the white powder was found to contain three grams of procaine, a substance used to dilute heroin for sale on the street. The officers also seized two cans of shaving powder and a set of five measuring spoons which when tested disclosed procaine residue.

In substance, defendant argues that the entry cannot be justified; that there was no necessity for “securing” the motel room. He contends that the police officers could have kept the room under surveillance and monitored the motel switchboard until the warrant was procured.

Defendant concedes that he was arrested when the police officers entered the room and restrained him. Nonetheless, he argues that because he was not removed from the scene until an hour later, when the search warrant was executed and the contraband seized, the officers did not intend to hold him on the basis of their warrantless entry.

Louisiana Code of Criminal Procedure Article 213 authorizes an officer to arrest a person without a warrant when there is reasonable cause to believe that that individual has committed an offense, although not in the presence of the officer. Reasonable or probable cause to arrest exists when the facts and circumstances within the arresting officer’s knowledge suffice to justify a man of average caution to believe that an offense has been committed.

In determining whether reasonable cause for arrest exists, the rigorous proof required for conviction is unnecessary. Reasonable cause is something less and must be judged by the probabilities and practical considerations of everyday life on which average men, and more particularly, average police officers can be expected to act. State v. St. Amand, La., 274 So.2d 179 (1973); State v. Williams, 260 La. 1167, 258 So.2d 539 (1972); State v. Dell, 258 La. 1024, 249 So.2d 118 (1971).

Admittedly, defendant was arrested when the officers entered his motel and restrained his movement. The police officers actually placed defendant under arrest based upon their conclusion that defendant possessed heroin with the intent to distribute.

We find that the police officers had reasonable cause to arrest defendant, Since the arrest was legal, the search for weapons within the reach of the occupants following the arrest was also proper. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

We also find that exigent circumstances existed which justified the warrantless entry until a search warrant could be obtained. Once Lewis’s residence in New Orleans was searched, the large amount of heroin at the motel was in danger of being destroyed. Officers could not have known whether the news of the search of Lewis’s residence in New Orleans had reached the motel room in Gretna. The officers, therefore, acted reasonably in preventing the destruction of the evidence. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

Assignments of Error Nos. 22, 24, and 25 are without merit.

ASSIGNMENTS OF ERROR NOS. 22, 24, AND 25

In these assignments, defendant again complains that the trial court erred in denying his motion to suppress. He argues specifically that the application for the search warrant was fatally defective in that it contained misrepresentations and uncorroborated hearsay evidence. Defendant contends that the confidential informant did not exist, and the purchase of three packets of heroin did not occur.

The application for the search warrant recites:

“THAT A SEARCH WARRANT SHOULD BE ISSUED FOR THE SEARCH OF the premises bearing municipal #’s 50 W. Bank Exp. Gretna, La. Said premises being the Sentry Motel. Said premises being a 2 story multi-dwell-ing motel const (constructed) of white concrete with green trim. Said premises being room 229.
“FOR THE FOLLOWING REASONS:
“On 4 Sept 75 Agent R. Dennis reports meeting with a Reliable Confidential Informant who has in the past given this Officer information which has led to the arrests of numerous narcotic violators on the West Bank of Jefferson Parish. Upon Agent meeting with the Reliable Confidential Informant who has in the past been referred to as C.I. he informed Agent Dennis that he knew of a n/m (negro-male) who had just come into Jefferson Parish with a large quantity of Heroin from California. The C.I. further informed Agent that the N/M’s name would be one Ike Hall and he would be staying at the Sentry Motel in room 229 Gretna, La. The C.I. further stated to Agent Dennis that Hall would be dealing the Heroin along with another N/M by the name of James Lewis (alias) Cadillac Slim. The C.I. went on to say that he knew of another N/M by the name of William Hayes . . . (alias) Sweet Pea who was going to purchase a large quantity of Heroin on this date from Lewis and Hall further furnishing Agent Dennis with Hayes’s address in N.O., La. The C.I. additionally stated to Agent Dennis that he would be in a position to purchase a quantity of Heroin from Hall if Agent wished. This was agreed upon by Agt arranging to meet with the C.I. at a latter date and time.
“Upon receipt of the above mentioned information Agent Dennis immediately initiated an investigation into the above information with the following results: Agent Dennis learned that Ike Hall is in fact staying at the Sentry Motel in room 229 Gretna, La. A check of the NOPD Computer revealed that William Hayes has prior narcotics arrests for Heroin. A check of the NOPD Computer revealed that James Lewis . . . Cadillac Slim also has an arrest record for Heroin. Hall has no previous arrest record. A check with other Agents of this division revealed that they have received information in the past in regards to Hayes and Lewis being involved in the Illicit Distribution of large quantity’s (quantities) of Heroin in Jefferson and Orleans Parish. It should be noted at this time that Agent Dennis notified Agents Habb and Dabdue of the NOPD Narcotics Division concerning the above mentioned matter. Dets (Detectives) Habb and Dabdue informed Agent Dennis that they had received information this very date from an informant who told them the same information concerning Hayes, and Lewis. It should be further noted at this time that Det’s of the NOPD Narcotics Division executed a search warrant on the residence of Hayes and seized appx. (approximately) 13 bundles of Heroin.
“On a later date and time Agent Dennis reports meeting with the Reliable Confidential Informant at a pre-arranged location. Upon Agent meeting with the C.I. Agent Dennis searched the person of the C.I. for any signs of contraband or money with negative results.- Agent Dennis then handed the C.I. $36.00 instructing him to proceed to room 229 of the Sentry Motel and to purchase 3 papers of Heroin. Agent and the C.I. then departed the area of the pre-arranged location to proceed directly to the area of the Sentry Motel room 229. Agent keeps the C.I. in view at all times. Agent observed the C.I. to approach and to knock on the front door of room 229. After a few seconds Agent observed the front door to open and the C.I., to enter. After appx. 5 minutes Agent Dennis observed the front door to room 229 to open and the C.I. to depart the area to proceed directly to the location of the pre-ar-ranged meeting place. Upon Agt meeting with the C.I. he handed Agent Dennis 3 small aluminum foil packets informing same that he had just purchased the 3 papers of heroin from Ike Hall and James Lewis . . . Cadilac Slim. The C.I. further stated to Agent that Lewis and Hall were getting ready to move all of the dope to a new location to keep them cool until they finished dealing all the Heroin. The C.I. further stated to Agent Dennis that while he was in the room be observed 2 clear plastic bags containing a large amount of brown powder that Hayes instructed him to be Heroin. Agent Dennis at this time conducted a preliminary field test on a portion of the evidence which proved positive for the presence of heroin. Agent Dennis then searched the person of the C.I. for any signs of contraband or money with negative results.
“It should be noted at this time that Agents of the Jefferson Parish Narcotics Division and Dets of NOPD Narcotics acting on probable cause furnished by Agent Dennis and the C.I. feeling that the evidence was about to be destroyed or lost used such probable cause to secure room 229 of the Sentry Motel awaiting Search Warrant.
“Based on the aforementioned information and facts it is respectfully requested that a Search Warrant be issued for the permises bearing municipal #’s 50 W. Bank Exp. Gretna, La. room 229 and that said search warrant be extended to include daytime, nightime, Sundays as well as Holiday Searches.”

Under our jurisprudence, a search warrant may not be issued upon an affidavit reciting nothing more than the affiant has reasonable cause to suspect that the object of the search is on the premises. State v. Wells, 253 La. 925, 221 So.2d 50 (1969). The affidavit must recite facts establishing to the judge’s satisfaction that probable cause exists for the issuance of the search warrant. State v. Holmes, 254 La. 501, 225 So.2d 1 (1969); State v. Wells, supra.

In State v. Paciera, La., 290 So.2d 681 (1974), we deduced the following rule:

“The affidavit submitted to the magistrate may be based entirely upon hearsay, but, if so, it must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him. Factors which support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the creditability of the information reported include (a) direct personal observation by the informant, or (b), if the information came indirectly to the informant, the reasons in sufficient factual detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly-obtained information.”

The present affidavit shows that the informant had furnished accurate reports in the past. It also describes in detail the informant’s visit to the motel room, witnessed by the affiant, and the informant’s personal observation of two bags of heroin in the room. It details the affiant’s personal knowledge of the confidential informant’s purchase of heroin. Finally, the affidavit reflects, that the affiant investigated and found that other members of the police also received the same information.

Besides defendant’s objection to the search warrant’s application containing hearsay, he also maintains that because it incorrectly recites that James Lewis had an arrest record for heroin, the search warrant was improper. While the application for the search warrant is factually incorrect in that regard, this mistake is insufficient to nullify the search warrant. The officer testified that this information resulted from a computer check and that he believed it to be true at the time he prepared the application.

As the search warrant was valid, the evidence seized pursuant to its execution is admissible. The trial court, therefore, correctly denied defendant’s motion to suppress.

Assignments of Error Nos. 22, 24, and 25 are without merit.

ASSIGNMENTS OF ERROR NOS. 1, 19, 20, 22, 24, 25, AND 26

In these assignments, defendant contends that because no warrant was issued for 1815 Joanne Place, any evidence obtained pursuant to this search, or any information obtained as a result of that search was tainted as the “fruit of the poisonous tree” and must be suppressed. He relies upon Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).

Defendant argues that because the State did not produce the search warrant for 1815 Joanne Place, none existed. He notes that Mrs. Lewis, the occupant present when the police searched the premises, testified that tbe police presented no warrant.

The record reflects that although the search warrant could not be located for trial, it did exist. Officer Dabdoub testified that he had a warrant on the night the search was conducted and that he presented the warrant to Mrs. Lewis. Commissioner Nils Douglas testified that he remembered issuing a search warrant for Joanne Place. He specifically recalled that he was awakened two separate times that evening to sign warrants. Officer Kirkpatrick testified that he saw the search warrant. Officer McNeil testified that there was a search warrant and that he saw it.

Although the State could not offer the search warrant into evidence, after hearing the testimony of numerous police officers, the trial court was satisfied that there was a search warrant and it was misplaced.

LSA-R.S. 15:436, the best evidence rule, provides:

“The best evidence which from the nature of the case must be supposed to exist, and which is within a party’s control, must be produced.”
LSA-R.S. 15:437 provides:
“Matters which can be proved only by written evidence can not be established by parol; but the contents of a document may be proved by parol, if its loss or destruction be shown, or if it is in the possession of the adverse party and he fails to produce it after reasonable notice.”

The trial court, therefore correctly ruled that, despite the loss or destruction of the search warrant, parol testimony could be used to prove its existence. Therefore, as the police did obtain the information, that defendant could be reached by telephone at 366-4551, Room 229, pursuant to a valid search warrant, that evidence was properly obtained and could not taint the later arrest and search.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 35

In this assignment of error, defendant complains that the trial judge erred in denying the following requested jury charges:

Special Charge No. 3
“A presumption is defined as the consequence which the law draws from a known fact to an unknown fact.
Special Charge No. 4
“The facts from which an inference or presumption are drawn must not only be established in evidence, but the inference or presumption to which the proven facts give rise must be strong and almost inevitable.
Special Charge No. 5
“The facts relied upon to establish an inferred conclusion must be proved by direct evidence or known to exist. You may not pyramid one inference upon another inference.
Special Charge No. 6
“If, in order to reach the conclusion that the state has proven the guilt of the defendant beyond a reasonable doubt, you must conclude by inference that he constructively possessed a controlled dangerous substance, and/or that he did so knowingly and intentionally, and you must use that inference as a basis to infer that he possessed the same with the intent to distribute it, I instruct you that you must find the defendant ‘not guilty’ of the crime of possession of a controlled dangerous substance with the intent to distribute.”

In denying these special requested jury charges, the trial judge correctly stated in his Per Curiam:

“Requested special charges Numbers Three through Six dealt with an alleged judicial rule that one inference may not be drawn from another inference. Defendant requested that the jury be instructed that under this rule the defendant must be found not guilty if the jury must conclude by inference that the defendant constructively possessed a C.D.S., (controlled dangerous substance) and further infer from that conclusion that he possessed the C.D.S. with the intent to distribute.
“In the opinion of this Court the whole thrust of defendant’s argument is incorrect. It is true that there are two separate elements to the offense of possession with intent to distribute a C.D.S., one element being possession, the other being the intent to distribute. It is also true that both of these elements may be proven by inference from circumstantial evidence. However, the two elements are separate and distinct. One element of the crime cannot, without more, be said to supply some evidence of the other required element of the offense. The mere possession of a C.D.S. can never be used to infer an intent to distribute. This inference must be drawn from other circumstances surrounding the transaction, such as possession of a quantity so large that it would be unreasonable to contend that possession was with any other purpose than to distribute. State v. House [La.], 325 So.2d 222.
“Defendant’s Requested Charges Three through Six were therefore denied on the basis that they erroneously stated the law applicable to the case.”

We agree with the trial judge that the special charges incorrectly state the law. Therefore, he properly rejected the charges. A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. LSA-C.Cr.P. Art. 807.

Assignment of Error No. 35 is without merit.

ASSIGNMENTS OF ERROR NOS. 10, 11, 13, 17, 27, AND 28

In these assignments defendant’s basic contention is that the trial court erred in overruling all of his attempts to identify the confidential informant.

Herein defendant raises Assignments of Error No. 10, 11, 13, 17, 27, and 28 which allege that the trial court erred in refusing to allow defendant to question Agent Dennis as to the time he went to the Sentry Motel with the confidential informant; in overruling defendant’s objection to testimony concerning the purchase of three papers of heroin by the informant; and by denying defendant information regarding the informant’s identity in Bill of Particulars Nos. 13, 14, and 6.

The informer privilege is a privilege of withholding the identity of an informant who supplies information to law enforcement officials concerning crime. The privilege is founded upon strong public policy, designed to encourage the reporting of crime. Disclosure of an informant’s identity is warranted only under exceptional circumstances. The burden of showing exceptional circumstances is upon defendant. State v. Rhodes, La., 308 So.2d 770 (1975); State v. Howard, La., 283 So.2d 199 (1973); State v. Dotson, 260 La. 471, 256 So.2d 594 (1971).

We have held that a confidential informant’s supplying-information used by police officers in an affidavit for the issuance of a warrant is not of itself an exceptional circumstance warranting disclosure of the informant’s identity. State v. Dabon, La., 337 So.2d 502 (1976); State v. Santos, La., 309 So.2d 129 (1975); State v. Howard, supra.

Defendant’s bare allegation that the confidential informant did not exist is insufficient to warrant the disclosure. The defendant has not. satisfied his burden of showing exceptional circumstances.

Assignments of Error Nos. 10, 11, 13, 17, 27, and 28 are without merit.

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

DIXON, J., concurs not agreeing with the treatment of the last group of assignments.

DENNIS, J., concurs.

      . Although defendant filed thirty-six formal assignments of error, he notes only fourteen assignments in his brief and oral argument. The remaining twenty-two assignments, which were neither briefed nor argued, are considered abandoned. State v. Phillips, La., 337 So.2d 1157 (1976); State v. Blanton, La., 325 So.2d 586 (1976); State v. Carlisle, La., 315 So.2d 675 (1975).
      This opinion will conform generally to the five basic groupings of assignments of error in defendant’s brief and oral argument.

      . In defendant’s formal assignments of error in the record, he complains of the trial court’s refusal to give special jury charges Nos. 1-6. However, in brief, he complains only of the denial of this third through sixth requested jury charges. Therefore, special charges Nos. 1 and 3 are not considered.


author: SUMMERS, Justice. PER CURIAM.

text:
    STATE of Louisiana v. David L. FIELDS, Sr.
    No. 58449.
    Supreme Court of Louisiana.
    Jan. 24, 1977.
    Rehearing Denied Feb. 25, 1977.

      Anthony C. D’Antonio, New Orleans, Greenberg & Dallam, Gretna, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Gretna, for plaintiff-appellee.
   SUMMERS, Justice.

An indictment returned by the grand jury of Jefferson Parish on May 16, 1975 charged that David Fields committed second degree murder of Norman Newton on February 26, 1975. La.Rev.Stat. 14:30.1. He was tried, convicted and sentenced to imprisonment for life without eligibility for parole, probation or suspension of sentence for a period of twenty years. Four assignments of error are urged on this appeal.

The State’s principal witness, Joy Thig-pen, testified that shortly after 7:30 p. m. on February 26, 1975 she was at Sally’s Beauty Company where Norman Newton was the manager. She was waiting for him to return to the store to lock up. While sitting near the front window of the store, she saw Newton drive up to the front. He was followed by a man in a blue-white ’73 or ’74 Ford LTD. As the cars came to a stop Norman’s pursuer pulled a gun and made him get out of the car. Thigpen then heard loud voices and saw Norman’s assailant shoot him three times.

Defendant was later identified by the witness Thigpen and one Tamporella, an employee of Ryder’s Truck Rental, a business adjoining Sally’s Beauty Supply. The defense was alibi. Both Fields and his wife testified that he was at home when Newton was murdered. The gun and the car driven by Newton’s killer were never located by the State.

Assignment 1

Prior to calling the first witness, the State moved that the jury be withdrawn in order to establish the predicate for introduction of a written statement obtained by Detective Joe Perez from the defendant. When the jury was withdrawn, defense counsel objected to any written statement taken from Fields and moved for a mistrial because no such statement was referred to in the prosecutor’s opening statement. No ruling was made at this time.

The State then proceeded with the testimony of Detective Perez. He testified that Fields agreed to go to the Detective Bureau with him and Sergeant Claverie on the morning of March 18, 1975, where he voluntarily gave a statement after having been advised of his rights. Detective Perez typed the statement which Fields signed. Perez and Claverie signed as witnesses.

After establishing that the statement was free and voluntary, the State introduced it into evidence. Apparently no defense objection to the introduction of the statement was urged at that time. Nevertheless, on the basis of the initial objection to testimony concerning such a statement and the motion for a mistrial, the defense contends that evidence of the statement and its introduction constitute reversible error. This contention is based upon the argument that the defense statement was not referred to in the State’s opening statement.

Article 767 of the Code of Criminal Procedure declares “The state shall not, in the opening statement, advert in any way to a confession or inculpatory statement made by the defendant.” At the same time Article 769 states that “Evidence not fairly within the scope of the opening statement of the state shall not be admitted in evidence.” However, the second paragraph of that article provides that “If the state offers evidence that was inadvertently and in good faith omitted from the opening statement, the court, in its discretion may admit the evidence if it finds that the defendant is not taken by surprise or prejudiced in the preparation of his defense.”

In order that a confession, which cannot be mentioned in the opening statement, may be used in evidence, Article 768 of the Code requires that, in lieu of mentioning confessions in the opening statement by the prosecutor and to avoid surprise to the defendant, the State “shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.”

In the instant case the District Attorney advised by motion in the record that it was his intention “to use the written statement of the defendant given to Detective Joe Perez at the Jefferson Parish Sheriff’s Office Detective Bureau on March 18, 1975, in the trial of the merits of this case.”

This notice did not refer to a “confession” or “inculpatory statement” as contemplated by Article 768. And the statement when reviewed does not appear to be either a confession or inculpatory statement. Technically, then, it is not such a statement which required the State to give the defense notice that it would be used.

Therefore, the logical inquiry is whether the statement is fairly within the scope of the opening statement, for, if it is, it is admissible. And the converse is true; if the statement can not be said to be fairly within the scope of the opening statement it is inadmissible. La.Code Crim.Pro. art. 769.

It is this Court’s understanding that evidence not specifically referred to in the opening statement, but which by implication can be considered within the scope of the opening statement is admissible. The Code of Criminal Procedure requires only that the State set forth in “general terms” the nature of the evidence by which the State expects to prove the charge. La.Code Crim.Pro. art. 766. The importance of Articles 766 and 767 is their design to avoid surprise to the defendant and prevent prejudice. State v. Jones, 230 La. 356, 88 So.2d 655 (1956); State v. McLean, 211 La. 413, 30 So.2d 187 (1947). See also State v. Eubanks, 240 La. 552, 124 So.2d 543 (1960). Their purpose is to put the defendant on notice of what the State intends to prove. These objectives have been attained here.

In his opening statement the prosecutor mentioned that he would call several police officers to testify to their part in the investigation of the crime, to the evidence they discovered, and the witnesses they interviewed. Defendant’s statement was part of the testimony of Detective Perez, part of the information gained in his investigation to which the prosecutor specifically referred in his opening statement. The statement was, therefore, fairly within the scope of the opening statement.

If it were considered that the evidence was inadvertently and in good faith omitted from the opening statement, the court, in its discretion, could admit it into evidence if the defendant was not taken by surprise or prejudiced in his defense. La. Code Crim.Pro. art. 769. There is no claim of deliberate omission or bad faith on the part of the State; and no claim of surprise or prejudice in the defense can be claimed because the quoted notice required by Article 768 was given in advance of trial, fully informing defendant that the statement would be used as evidence at the trial.

This assignment is without merit.

Assignment 2

While the jury was withdrawn to allow the State to establish the predicate for the defendant’s statement by Detective Perez, Sergeant Claverie was seated at counsel’s table with the prosecuting attorney. Defense counsel moved that, inasmuch as he was not a member of the bar, he should not be allowed to sit at counsel’s table during the prosecution of the case. Defense counsel argued Sergeant Claverie should be required to sit in the spectator section of the courtroom. It was the defense contention that the presence of a representative of the sheriff’s office at the prosecutor’s table “looking directly at them down their throat so to speak” would affect the testimony of the witnesses.

The basis for the defense contention is that “[t]he district attorney may employ or accept the assistance of other counsel in the conduct of a criminal case”, La.Code Grim. Pro. art. 63, but there is no authorization to permit a nonlawyer to assist in the prosecution. Nevertheless, the trial judge ruled that allowing the deputy sheriff to sit at the bar next to the assistant district attorney during the trial was proper, where the deputy did not actively participate in the trial and was needed to confer with the prosecutor concerning the facts as the evidence unfolded at the trial.

Article 63 does not contemplate that the district attorney has the right to employ or accept the assistance of a person who is not an attorney at law to actively conduct a trial in the prosecution of a case. State v. Henry, 196 La. 217, 198 So. 910 (1940). This does not mean, however, that the trial judge may not, in his discretion, permit the prosecutor conducting the case to employ persons who are not lawyers to assist him at counsel’s table.

There is no intimation from this record that the prosecutor used Sergeant Claverie in this manner for the purpose of intimidating witnesses or to otherwise affect the free and impartial conduct of the trial. There is, therefore, no merit to this assignment.

Assignment 8

Not briefed. Abandoned.

Assignment 4

Defendant was placed in a lineup and identified by witnesses on May 2, 1975, approximately two months after his arrest. Thereafter, on May 16,1975 he was indicted by the grand jury. The defense maintains that the trial court committed error when it allowed the State to introduce testimony of this lineup because the defendant was not represented by counsel.

While conceding that this Court has consistently held that a person accused of crime is not entitled to counsel during pre-indictment lineup, defense counsel contends such a denial deprives the accused of due process of law as guaranteed by the fifth amendment of the Federal Constitution and Section 2 of Article I of the Louisiana Constitution of 1974.

Decisions of this Court do not prohibit or deny the accused the right to counsel at a lineup. These decisions do hold, however, that pre-indictment lineup is not a stage of the proceeding at which counsel must be present to guarantee state due process. La.Const. art. I, § 13; State v. Johnson, 327 So.2d 388 (La.1976). See also State v. Hargrove, 330 So.2d 895 (La.1976); State v. Maduell, 326 So.2d 820 (La.1976); State v. Stewart, 325 So.2d 819 (La.1976), cert. denied, 425 U.S. 997, 96 S.Ct. 2213, 48 L.Ed.2d 822 (1976); State v. Gilmore, 323 So.2d 459 (La.1975); State v. Nero, 319 So.2d 303 (La.1975); State v. Bland, 310 So.2d 622 (La.1975); State v. Lawrence, 294 So.2d 476 (La.1974); State v. Edgecombe, 275 So.2d 740 (La.1973), cert. denied, 414 U.S. 1075, 94 S.Ct. 591, 38 L.Ed.2d 482 (1973). Decisions of the United States Supreme Court are to the same effect, relative to federal due process. See Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

In the instant case defendant was fully aware of his right to counsel, having been advised to that effect and having consulted counsel since his arrest. Apparently defendant did not choose to have his attorney present. The opportunity to have counsel present was not denied the accused.

There is no merit to this assignment.

Assignment 5

Two statements made by the prosecutor in the State’s closing argument are said to be expressions of his personal opinion of the defendant’s guilt from facts outside the record and, as such, to constitute reversible error. The statements are:

“Maybe he did fix that lawnmower. I think he probably did but it wasn’t on that night or if it was it wasn’t during that time. It wasn’t at that time on that night because at that time on that night David Fields was shooting Norman Newton dead. That’s what he was doing.”

In another part of the closing argument the prosecutor said: “David Fields should not be off. He killed this man. This man is lying in his grave today and it’s because David Fields shot him.”

Although no contemporaneous objection was made to these statements at the time of the prosecutor’s argument as required by Article 841 of the Code of Criminal Procedure, the defense contends that noncompliance with Article 841 cannot deprive defendant of the constitutional right to review of this alleged error on appeal which Article I, Section 19 guarantees in these terms:

“No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. This right may be intelligently waived.”

This contention has been fully answered by this Court’s decision in State v. Marcell, 320 So.2d 195 (La.1975):

“Notwithstanding the foregoing, counsel for defendant argues that under the provisions of Article 1, § 19 of the Louisiana Constitution of 1974 defendant is entitled to a review of his assignments of errors despite the failure of trial counsel to object at the time the alleged errors occurred. Defendant interprets Article 1, § 19, guaranteeing a defendant the right of review unless the defendant intelligently waives that right, as meaning that a defendant does not lose his right to a review of trial errors unless he knowingly and intelligently waives his right to object or his right to demand a mistrial. He cites Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) for the proposition that an accused should not be presumed to have exercised a deliberate choice because of silence or inaction, and Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972) for the proposition that a waiver must be the product of an understanding and knowing decision of the accused himself, who is not necessarily bound by the decision or default of his counsel.
“Because Barker involved an alleged waiver of the right to a speedy trial and Humphrey a waiver of state remedies such as would bar federal habeas corpus relief, we do not find those cases disposi-tive of the issue with which we are here concerned. We would apply the principles of waiver expressed in Barker and Humphrey if in the instant case defendant were before us seeking an out of time appeal, arguing that while his counsel may have failed to take the proper steps to perfect an appeal, he himself had not intelligently or knowingly participated in that decision or neglect. We read Article 1, § 19 of the Louisiana Constitution of 1974 as establishing the right to an appeal and as conferring on the accused, and the accused alone, the right to waive this right. But it is apparent that defendant in the instant case has been afforded his right to appeal. His conviction is properly before this Court for appellate review, and we have reviewed his conviction insofar as Art. 841, C.Cr.P. allows. The problem is thus not that defendant is being denied the right to an appeal, but that the extent of this appellate review has been limited by the failure of his- trial counsel to object to alleged errors occurring during trial.
“The contemporaneous objection rule, as embodied in Article 841 of the Louisiana Code of Criminal Procedure, is necessary in order to promote judicial efficiency and in order to prevent a defendant from gambling for a favorable verdict and then, upon conviction, resorting to appeal on errors that might easily have been corrected by objection at trial. The rule is a reasonable one when viewed in light of the Sixth Amendment right to counsel, for an accused is not forced into a trial to fend for himself, but is instead afforded the opportunity to be represented by counsel trained in the intricacies of the law. While an accused may easily be informed of or educated in some of his fundamental rights and options, such as the right to assistance of counsel, the right to a speedy trial, and the right to exercise the privilege against self-incrimination, such education is not possible when it comes to the intricate and numerous rules governing trial by judge or jury. Consequently, during the course of trial, a defendant must rely upon his counsel, and the acts and choices of counsel are deemed to be those of the defendant himself. Where it appears that counsel has failed in his professional duty toward a defendant, our system affords a defendant relief through a writ of habeas corpus alleging incompetent or ineffective counsel, in effect the deprivation of the right to the assistance of counsel. Competence or incompetence of that counsel is not before us in this appeal.
We conclude, therefore, that Article 841 of the Louisiana Code of Criminal Procedure does not violate Article 1, § 19 of the Louisiana Constitution of 1974. While the constitutional provision does afford each defendant the right to judicial review based upon a complete record of all evidence upon which the judgment is based, the extent of this right is circumscribed by reasonable procedural formalities and requirements, including contemporaneous objections and the filing of assignments of error.”

This assignment has no merit.

For the reasons assigned the conviction and sentence are affirmed.

PER CURIAM.

Rehearing denied. Defendant is relegated to post-conviction procedures to litigate the new matter raised in the application for rehearing (the denial of counsel at the line-up).

SUMMERS, J., is of the opinion the rehearing should be denied without qualification.

SANDERS, C. J., is of the opinion that the rehearing should be denied.

       Article 1, § 19 provides in pertinent part:
      ‘No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. This right may be intelligently waived.’

      . La.Code Crim.Pro. art. 841 provides:
      “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.
      The requirement of an objection shall not apply to the court’s ruling on any written motion.”