author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Percy DAIGLE.
    No. 58814.
    Supreme Court of Louisiana.
    April 11, 1977.

      Preston N. Aucoin and Gilbert Wayne Aucoin, Ville Platte, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William Pu-cheu, Dist. Atty., A. Bruce Rozas, First Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant was indicted and tried for the murder of his wife, Nita Soileau Daigle, on November 17, 1972. Defendant pled not guilty and not guilty by reason of insanity and a sanity commission was appointed. After a hearing, the judge found the defendant competent to proceed with trial. The defendant was tried by a jury of twelve which returned a verdict of guilty on October 23, 1975. He was thereupon sentenced to life imprisonment. On appeal defendant relies upon thirteen assignments of error for reversal of his conviction.

Sometime prior to November 17, 1972, defendant and his wife (the murder victim) separated. On that date defendant allegedly met his estranged wife at an intersection in Ville Platte and she called him “flat nose” and told him she had just been to see her “boyfriend.” Shortly after this confrontation, defendant found his wife at her new residence, and in full view of her mother and two other witnesses, he shot his wife three times with a gun he had purchased several days before. He then put the gun in a paper bag which he placed in his car. He left his car door open and walked to a nearby service station where the police apprehended him.

ASSIGNMENT OF ERROR NO. 1,

Defense counsel questioned prospective juror Ms. Rose Marte Johnson concerning the defense of insanity. She stated that she could apply the law to the effect that if the evidence showed defendant did not know right from wrong at the time of the murder, defendant would be excused from criminal responsibility. However, she then stated: “I feel it would be a hard thing to prove, but if it can be proven I feel that I can go along with it.” After some further examination defendant requested that the prospective juror be excused for cause because she harbored a fixed opinion which would yield only after evidence was presented. The judge overruled the request and, since defendant had exhausted his peremptory challenges, he noted an assignment of error.

A reading of this prospective juror’s voir dire in full reveals that she was an impartial witness; she was merely of the opinion that to show someone did not know right from wrong at a particular time would be difficult to prove (which it is). As the state points out, she was recognizing (without knowing it) the presumption that a person is sane and responsible for his acts. The juror stated that if competent evidence could convince her that defendant did not know right from wrong at the time of the murder then she would render a verdict accordingly and would not refuse to apply the applicable law. Furthermore, she stated that she believed someone could be legally insane at the time of the murder and then resume his sanity so as to be permitted to return to society.

The statement of the juror upon which defendant principally relies was that she couldn’t imagine what would cause someone not to know right from wrong; she said she couldn’t “imagine what would cause this,” but she would be willing to listen. When she made this statement the judge explained that the jurors have to determine the facts, but that they must apply the law as given, and the law in this regard was that a man is not criminally responsible if medical evidence and other proof showed that some mental disease or defect prevented the defendant from distinguishing right from wrong. Asked if she could apply that law the juror replied in the affirmative. Finally the juror stated that she honestly believed that someone could kill another person without knowing right from wrong at that particular time and that if the evidence convinced her that this was the case, she would steadfastly vote that way in the jury room and not yield even if the vote was eleven to one.

We conclude that the juror was an impartial witness and would follow the law and apply it and would seriously consider the evidence on the sanity issue. The mere fact that a juror believes that insanity at the time of the crime would be difficult to prove is not grounds for excusal for cause.

The assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2.

After defendant pled not guilty and not guilty by reason of insanity, he requested that a sanity commission be appointed. The judge appointed a sanity commission to inquire into defendant’s present capacity and the mental condition he allegedly had at the time of the commission of the murder. Defendant assigns as error the alleged refusal of the court to permit the members of the sanity commission to testify at the sanity hearing as to defendant’s sanity at the time of the commission of the offense. As authority for his proposition defendant relies upon Article 650 of the Code of Criminal Procedure which provides in part that when a defendant makes the dual plea “the court may appoint a sanity commission . to make an examination as to the defendant’s mental condition at the time of the offense.” He argues on the authority of this article that when a judge has ordered the commission to inquire into defendant’s sanity at the time of the murder, defendant is entitled at the sanity commission hearing to examine the commission members as to their findings in this regard.

There is no merit to defendant’s assignment, for the record indicates that the judge did not refuse to permit the members of the sanity commission to testify at the sanity hearing relative to defendant’s insanity at the time of the commission of the offense. In fact, the judge ruled that defense counsel could inquire into defendant’s insanity at the time of the commission of the crime insofar as it was pertinent to the issue at the hearing, namely defendant’s present capacity to stand trial. The record clearly indicates that counsel’s objection was directed at the trial court’s refusal to rule on defendant’s insanity at time of commission of the offense.

The question of present capacity to stand trial is a question for the judge (C.Cr.P. art. 647) while the issue of defendant’s insanity at the time of the commission of the offense is a fact question reserved for the jury. State v. Link, 301 So.2d 339 (La.1974). Thus defendant is not entitled to have the court rule on defendant’s ability to distinguish between right and wrong at the time of the murder. State v. Basco, 216 La. 365, 43 So.2d 761 (1950); State v. Cook, 215 La. 163, 39 So.2d 898 (1949). Defendant was not barred from interrogating commission members as to their opinions with respect to sanity at the time of commission of the offense. The judge simply properly ruled that it was not his province to rule upon that issue.

ASSIGNMENT OF ERROR NO. 3.

In this assignment defendant contends that the trial judge erred in ruling the defendant had the capacity to proceed. He contends that he was suffering amnesia as to events occurring immediately before until after the shooting and that on this account he was incapable of assisting his counsel in his defense at trial. He relies upon Article 641 of the Code of Criminal Procedure which provides:

“Mental incapacity to proceed exists when, as a result of a mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.”

Inasmuch as the medical experts differed as to whether in fact defendant actually suffered amnesia concerning the events surrounding the shooting, we need not consider whether amnesia alone requires a finding that defendant cannot assist his counsel.

The trial court’s finding defendant able to assist counsel in his defense is supported by the record. Thus there is no merit to the assignment.

We find no error in the trial court’s determination that defendant had the capacity to proceed.

ASSIGNMENT OF ERROR NO. 4.

The judge refused to give defendant’s requested charges numbers one and two which were to the following effect:

“Article 656 [654] of the Louisiana Code of Criminal Procedure, in pertinent part, provides that:
‘When a verdict of not guilty by reason of insanity is returned in a capital case, the court shall commit the defendant to a proper state mental institution for custody, care, and treatment.’
“Therefore, if you vote to acquit Percy Daigle by reason of insanity, this Court shall commit him to a proper state mental institution.
“The word ‘shall’ is mandatory and means the Court has to commit him to said institution. The Court has no choice but to commit him.”
* * * * * *
“If you return a verdict of not guilty by reason of insanity, the Court shall commit Percy Daigle to a proper state mental institution for custody, care and treatment.”

The judge correctly refused to give defendant’s requested charges. Code of Criminal Procedure Article 807 provides that a requested special charge “need not be given if it is included in the general charge.” The judge gave a very lengthy charge as to the legal effect of not guilty by reason of insanity in a capital case. The charge quoted verbatim the relevant articles in the Code of Criminal Procedure dealing with the mandatory commitment, the hearing to determine, after six months, whether the defendant may be released, the one year delay between successive applications to be released, the appointment of a commission to report whether defendant should be released and other related matters. In other words, the court charged the jury with the complete procedure, immediately after the verdict is rendered and subsequently. The general charge, therefore, conveyed defendant’s requested charge number two and part of charge number one. The only dispute is apparently whether the judge should have given that part of the requested charge which relates that the word “shall” is mandatory.

It is true that Article 5 of the Code of Criminal Procedure states that “shall” means “mandatory.” Obviously, defendant wanted to adequately impress upon the jury that the judge had absolutely no discretion in the matter. However, the general charge adequately conveyed the idea that this would be the result (i. e., that defendant would be sent to an institution) not that it might be. In addition, defense counsel both in opening and closing statements pointed out that the jury would not be turning the defendant loose but that he would necessarily be sent to an institution. The jury was sufficiently apprised of the fact that commitment was mandatory.

Because the judge’s charge conveyed the substance of both requested charges, the assignment lacks merit.

ASSIGNMENT OF ERROR NO. 5.

The judge refused to give defendant’s requested special charge number 29 which read:

“1) Was Percy Daigle, at the time of the commission of the homicide, as a matter of fact, affected with a disease of the mind, so as to be idiotic or otherwise insane? (2) If such be the case, did he know right from wrong, as applied to the particular act in question? If he did not have such knowledge, he is not legally responsible. (3) If he did have such knowledge, he may nevertheless not be legally responsible, if the two following conditions concur: a) If, by reason of the duress of such mental disease, he had so far lost the power to choose between the right and wrong and to avoid doing the act in question as that his free agency was at the time destroyed; b) and if at the same time the homicide was so connected with such mental disease, in the relation of case and effect, as to have been the product of it solely.
“If you answer ‘yes’ to ‘1’ and ‘no’ to ‘2’, you must vote to acquit.
“If you answer ‘no’ to T and ‘no’ to ‘2’, but ‘Yes’ to ‘a’ and ‘b’, you must still vote to acquit.”

As authority for the proposition that this charge is “wholly correct and pertinent” and does not require “qualification, limitation, or explanation” (see C.Cr.P. art. 807 quoted in Footnote 2), defendant argues that this charge has been approved by the Supreme Court since it was first cited in State v. Lyons, 118 La. 959, 37 So. 890 (1905). It is conceded that the general charge did not include the substance of part (3) of the requested charge. In fact, the judge in his general charge gave parts (1) and (2) but specifically deleted part (3). Thus, this assignment presents the issue of whether the requested charge was “wholly correct and pertinent” and did not require “qualification, limitation, or explanation.”

Defendant’s reliance upon State v. Lyons, supra., is misplaced. In Lyons the defendant requested that the judge charge the jury as to the insanity test of “irresistible impulse.” As authority for defendant’s position in Lyons the Court cited Parsons v. State, 81 Ala. 577, 2 So. 854 (1887) which approved the charge cited above. The Court, in affirming the judge’s refusal to give the charge on “irresistible impulse” stated that the general charge in fact given was broader and more favorable to the defense than the charge approved in Parsons. Thus, the Court did not in any way approve the quoted charge and defendant has not cited any other cases in this jurisdiction where refusal to give the irresistible impulse charge has been found erroneous.

The judge properly refused to give part (3) of the charge. An analysis of the language reveals that the charge is attempting to set forth the insanity test of “irresistible impulse.” Our Court has thus far refused to adapt that test jurisprudentially, saying that it is a matter for the legislature. State v. Johanson, 332 So.2d 270 (La.1976); State v. Berry, 324 So.2d 822 (La.1975). It has been specifically held that irresistible impulse is not a proper inquiry when legal insanity is at issue. State v. Johanson, supra.; State v. Berry, supra. Therefore, since the charge defendant requested the court give attempts to set forth the “irresistible impulse” test, the requested charge was not “wholly correct and pertinent” and was properly rejected.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 6.

The judge refused to give defendant’s requested special charge number 36 which read:

“If you find from the evidence that the personal peculiarities, eccentricities, fits of temper or rage of Percy Daigle, as well as from the other evidence that Percy Daigle could not distinguish or choose right from wrong at the time of the homicide, you must vote to acquit.”

Defendant contends that the trial judge should have given this instruction because State v. Swails, 226 La. 441, 76 So.2d 523 (1954) recognized that lay opinion on sanity is permissible by witnesses who have observed the defendant’s “speech, manner, habits and conduct of such person.”

In State v. Whisenant, 247 La. 987, 175 So.2d 293 (1965), the Court stated that in determining legal insanity the jury should consider the commissioner’s report, the testimony of experts and lay witnesses, and the conduct and actions of the accused. Thus, to the extent that this charge attempted to convey this rule of law it was correct. However, the judge in his general charge noted that on the sanity issue the jury should consider all of the evidence, language which infers that the jury should consider lay as well as medical evidence. In addition, the judge gave defendant’s requested charge number 30 which read:

“In Louisiana, the fact that a person is unable to discriminate between right and wrong is best ascertained not by the opinion of any medical witness nor by any medical theory, but by the acts of the individual himself.
“If you find that by the acts of Percy Daigle, he was unable to discriminate between right and wrong at the time of the homicide, you must vote to acquit.”

Thus, the judge properly rejected the charge as “repetitious” as it was included in the general charge and in another special charge (number 30) which was given.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 7.

The judge refused to give defendant’s requested special charge number 37 which provided:

“Insanity does not have to be established beyond a reasonable doubt.
“If you feel that there is enough evidence to warrant the insanity of Percy Daigle at the time of the homicide, even though there is evidence to the contrary, you must vote to acquit.”

Defendant argues in this assignment of error that the judge’s refusal to give this charge constitutes reversible error. This assignment lacks merit because the judge on numerous occasions in his charge stated that the state had the burden to prove beyond a reasonable doubt the guilt of the accused, but the defendant had the burden of proving by a preponderance of the evidence that he was legally insane at the time of the murder. The standard of preponderance of the evidence is the proper test. C.Cr.P. art. 652. Thus, the charge was included within the general charge. Furthermore, defendant’s charge is not wholly correct but required clarification because it did not clearly set forth that defendant’s burden of proof is by preponderance of the evidence. The charge therefore was properly refused.

ASSIGNMENT OF ERROR NO. 8.

Defendant was initially indicted on November 30, 1972 for the murder. Before this indictment was nolle prossed defendant was indicted by a different panel of grand jurors on February 18, 1975 for the same murder. Defendant moved to quash the second indictment (the one under which he was prosecuted) contending that it denied him due process of law and in brief he argues that the second indictment “smacks of double jeopardy” and that the Code of Criminal Procedure only envisions one indictment being “in esse” at a time. The judge overruled the motion to quash and this ruling forms the basis of this assignment of error.

As the state points out, defendant was originally indicted in 1972 by an all-male grand jury. Prior to trial in 1975 the United States Supreme Court in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), held that exclusion of women from juries was unconstitutional. Although a later case announced that Taylor would not be applied retroactively, the district attorney thought it would be wise to get another indictment in accordance with the Taylor guidelines. Therefore, a grand jury was selected from a venire which did not exclude women.

The assignment does not have merit. Jeopardy does not attach until the first witness is sworn at the trial on the merits. C.Cr.P. art. 592. Nor do we find merit in defendant’s contention that he was denied due process of law.

We cannot conceive of how defendant might have been prejudiced by the district attorney’s precautionary efforts to avoid possible reversible error by procuring a second indictment from a properly constituted grand jury and thereafter entering a nolle prosequi to the first indictment. Therefore, defendant’s arguments are without merit.

ASSIGNMENT OF ERROR NO. 10.

Defendant moved for a new trial on the basis that 1) the verdict was contrary to the law and the evidence and 2) the bill of exceptions reserved during trial show error committed to the prejudice of the accused. However, in this assignment he argues that this Court should order a new trial on the basis of Article 851 of the Code of Criminal Procedure which provides in part that:

“The court, on motion of the defendant, shall grant a new trial whenever:
* * * * * *
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.”

He argues that on the basis of this article a new trial should be granted because the evidence preponderates that defendant did not know right from wrong.

We believe that defendant makes here a very serious argument, but we conclude that it has no merit because the assignment presents nothing for our review. Defendant did not in the trial court move for a new trial under Article 851(5). Inasmuch as the trial judge was not afforded an opportunity to entertain the plea for a new trial under the plenary authority afforded him under Article 851(5), there is no ruling of the trial court in this regard which we are able to review.

The scope of appellate review in this Court is limited to errors patent on the face of the record and errors committed in the trial court and designated in the assignment of errors. There was no ruling of the trial court as to which error might now be alleged since defendant did not move for a new trial on the basis of Article 851(5), nor is the purported error discoverable by a mere inspection of pleadings and proceedings without inspection of the evidence. C.Cr.P. art. 920. For this reason, we cannot review on appeal defendant’s contention that the interests of justice require that he should be afforded a new trial.

ASSIGNMENT OF ERROR NO. 11.

Five days after defendant was indicted he was arraigned without counsel and he pled “not guilty.” Subsequently, counsel was appointed and the court attempted to arraign him anew. Defense counsel advised the court that he was objecting to the arraignment and that his client was merely attempting to “change his plea.” The defendant then pled “not guilty and not guilty by reason of insanity.” (The defense attorney was obviously attempting to preserve a technical error in that defendant was arraigned without counsel and he hoped that a mere change of plea with counsel would not cure the defect.) A few days later the district attorney advised the court that to be safe defendant should be arraigned again. Defense counsel objected, told his client to stand mute and not listen to the reading of the indictment by stopping his ears with his fingers. Defense counsel objected to the court “forcing his client to be arraigned.” The defendant was then forced to hear the indictment but did not plead, whereupon the court entered a plea of “not guilty.” Finally, after the second indictment was filed in 1975 defendant was again arraigned and he pled not guilty and not guilty by reason of insanity. Defendant contends this procedure is ground for reversal.

We cannot imagine how defendant might have been prejudiced by the foregoing procedures. The assignment lacks merit.

ASSIGNMENT OF ERROR NO. 12.

Defendant complains that the trial judge erroneously overruled his motion to quash the jury venire on grounds that it violated his right to a fair trial by a representative cross-section of the community. At the hearing on his motion, defendant established that the only list used by the jury commissioners in order to draw up the venire was one furnished by the Registrar of Voters. Although the Commissioner stated that if other persons offered their service to the Commissioners they would be put on the list, he admitted that none had done so except three or four women who had requested to serve in the days before Taylor v. Louisiana, supra, forced a change in the state procedures in jury composition.

The Louisiana Constitution of 1974 states that “Every person charged with a crime ... is entitled to [an] . impartial trial.” La.Const. art. I, § 16. Likewise, the sixth amendment to the Constitution of the United States guarantees to criminal defendants in state courts the fundamental right to trial by a jury which is a truly representative cross-section of the community. Taylor v. Louisiana, supra.; Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972); Duncan v. Louisiana, 391 U.S. 145, 194, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). These guarantees have been implemented in Louisiana by statute, jurisprudence, and Supreme Court rules. C.Cr.P. arts. 401-419; State v. Procell, 332 So.2d 814 (La.1976); Rules of the Supreme Court XXV and XXVI. These provisions insure that juries in Louisiana are selected from a fair cross-section of the parish and that all qualified citizens have the opportunity to be considered for jury service.

Defendant’s contention that the fact that the general venire was selected exclusively from voter registration rolls does not comport with these federal and state guarantees is not a frivolous one. The system used in Evangeline Parish is very different from the system we approved in State v. Millsap, 258 La. 883, 248 So.2d 324, 329 (1971) where we described the system used in preparing that venire in this way:

“Each of the five jury commissioners submits lists of names from which individuals are selected to supplement the general venire. These lists are, for example, telephone books, light meter lists, voter registration rolls, union memberships, employee lists of large companies, a Junior Chamber of Commerce membership roster and church memberships.
* * * * * *
“From these lists, names are selected at random, such' as every third name, and no effort is made to include or exclude any particular class. The lists contain names from all walks of life and all geographic areas. The venire is truly composed of a cross section of the eligible population, selected ‘impartially’ in keeping with the mandate of Article 408 of the Code of Criminal Procedure.”

However, we cannot say that the use of voter lists without any showing in the record of any discrimination against a class of people establishes that the jury pool did not represent a fair cross-section of the community. See State v. Anderson, 315 So.2d 266 (La.1975); State v. Douglas, 256 La. 186, 235 So.2d 563, cert. denied 401 U.S. 914, 91 S.Ct. 888, 27 L.Ed.2d 814 (1970). Therefore, we find no merit in this assignment.

ASSIGNMENT OF ERROR NO. 13.

A gun which was bought by defendant and used in the slaying was seized by the police and introduced into evidence. Defendant had filed a motion to suppress this evidence but the motion was overruled. This ruling forms the basis of this assignment of error.

The evidence at the motion to suppress reveals that defendant drove into his wife’s driveway, got out of the car and shot her three times. He then placed the gun in a paper bag, placed the bag on the front seat of the ear, left the car door ajar and walked away. The police arrived at the scene some ten minutes later and the officer who seized the weapon testified that the victim was then some five or six feet from the car and was visibly shot. He knew the victim was defendant’s wife and knew that the car was the defendant’s but did not know that defendant had shot her at that time. He walked by the open door and noticed the gun on the front seat because the bag was open and the gun was clearly visible from outside the car because the opening of the bag faced the open door. He merely reached in the car and secured the gun.

Defendant contends that this “search” was not incident to a lawful arrest, was not a consent search and was not a search of an automobile under exigent circumstances because the car was not in danger of being moved. However, he does not even attempt to counter why this evidence was not seized as being in open (or “plain”) view. In fact, the record reveals that there was no “search” at all but the evidence was seized because it was in plain view. The officer obviously had a right to be where he was (reported homicide, body few feet from car, car on victim’s property) and the evidence was seen inadvertently (bag open and facing open door). The court properly ruled that the evidence was constitutionally seized.

This assignment lacks merit.

Accordingly the conviction and sentence of defendant are affirmed.

SUMMERS, J., concurs.

      . In this regard, however, see State v. Gray, 291 So.2d 390 (La.1974) wherein this Court quoted approvingly from State v. Swails, 223 La. 751, 66 So.2d 796 (1953) and stated that the very fact that appellant does not remember anything concerning his alleged criminal acts may be of material aid to his counsel in their presentation of case of insanity.

      . Article 807 provides in full:
      “The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.
      “A requested special charge shall be given by the court if it does not require qualiñcation, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given." (emphasis added)

      . In addition, in his second supplemental brief defendant contends that this Court should abandon the “right or wrong test.” This contention has already been answered in our discussion of assignment of error number five.


source: Caselaw Access Project

author: PER CÜRIAM.

license: Public Domain

text:
    STATE of Louisiana v. Robert B. MORROW.
    No. 58982.
    Supreme Court of Louisiana.
    April 20, 1977.

      Maurice T. Hattier, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CÜRIAM.

Affirmed.


author: PER CURIAM.

text:
    STATE of Louisiana v. Robert B. MORROW.
    No. 58983.
    Supreme Court of Louisiana.
    April 20, 1977.
    Maurice T. Hattier, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Templer JOHNSON.
    No. 59019.
    Supreme Court of Louisiana.
    April 20, 1977.
    Philip E. O’Neill, Orleans Indigent Defender Program, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: DIXON, Justice. MARCUS, Justice.

text:
    STATE of Louisiana v. Rayfield HOFFMAN.
    No. 58480.
    Supreme Court of Louisiana.
    Feb. 28, 1977.
    On Rehearing April 26, 1977.
    Clyde D. Merritt, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Geraldine S. Veazey, Brian G. Meissner, Asst. Dist. Attys., for plaintiff-appellee.
   DIXON, Justice.

On May 5, 1975 Rayfield Hoffman was found guilty by a jury of attempted aggravated rape. The crime occurred between 6:00 and 7:00 a. m. on December 25, 1974.

The victim lived alone in a one room apartment. She was in her bathrobe at about 6:00 o’clock in the morning when the defendant broke into her room and forced her to her bed. During the rape the defendant lost consciousness. The victim escaped to a nearby restaurant where she called the police. Upon their arrival, the police found the defendant asleep on the victim’s bed, naked except for underwear shorts around his knees, and a hammer in the bed near his feet.

On this appeal defendant argues Assignments of Error Nos. 3, 4, 6, 7 and 8. The other assignments of error were neither briefed nor argued and are thereby considered abandoned. State v. Matthews, 292 So.2d 226 (La.1974); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

Assignment of Error No. 3

In this assignment defendant seems to argue that the names of the veniremen who were called on voir dire were not selected indiscriminately and by lot, and that C.Cr.P. 784 was violated. That article provides:

“In selecting a panel, names shall be drawn from the petit jury venire indiscriminately and by lot in open court and in a manner to be determined by the court.”

The record before us does not reflect a violation of article 784, and does not make clear defendant’s complaint. Defense counsel seemed to have attempted to bargain for a copy of information of the past performance of jurors which, defense counsel said, was in the hands of the prosecutor. The per curiam of the trial judge merely points out that the jury venire was selected a week before the trial, and that it is shared with other sections.

The State seems to indicate that State v. Bradford, 298 So.2d 781 (La.1974) approved the practice of which defendant seems to complain. Bradford made no such holding. If it were true that the names of the veniremen were not drawn from the petit jury venire list indiscriminately and by lot in open court, there would be a serious defect in the trial. However, the record before us does not reveal such a violation.

There is no merit to Assignment of Error No. 3.

Assignment of Error No. 4

While the jury was being selected, defendant moved as follows: “Under Art. 788, when the State and Defense accept a juror we ask that they be immediately sworn.”

The trial court denied the motion and stated that all jurors would be sworn together before the trial began. Article 788 provides:

“After the examination provided by Article 786, a prospective juror shall be tendered first to the state, which shall accept or challenge him. If the state accepts the prospective juror, he shall be tendered to the defendant, who shall accept or challenge him. When a prospective juror is accepted by the state and the defendant, he shall be sworn immediately as a juror. This article is subject to the provisions of Articles 795 and 796.”

Article 795 of the Code of Criminal Procedure provides that peremptory challenges may be made by the State at any time before the juror is accepted by the State, and by the defendant at any time before the juror is sworn. Because of these provisions, a not unreasonable practice has developed on voir dire examination in which the State will “tentatively” accept a juror until after the panel has been completed, at which time the defense, with a full jury box before it, will exercise peremptory challenges. This procedure gives some latitude to the State, and is generally thought to give an advantage to the defendant, who need not exercise his peremptory challenges until after the State has accepted jurors.

Nevertheless, the practice is contrary to the provisions of C.Cr.P. 788. When requested by defense counsel, the trial judge must require that prospective jurors be tendered first to the State which shall accept or challenge, and then to the defendant, who must accept or challenge. The statutory system is a fair one, and, unless its provisions are waived by the parties, must be enforced.

However, defendant does not point to any prejudice he has suffered, nor to any advantage gained by the State from this error. Although there is obviously a violation of a statutory provision, the practice complained of has not affected the right of the accused to a fair and impartial trial, and is not a violation of a substantial right of the accused. Therefore, the assignment of error is not ground for reversal.

Assignments of Error Nos. 6 and 7

In Assignment of Error No. 6 the defendant complains that it was error for the court to provide the jury with a list of responsive verdicts which included attempted aggravated rape and simple rape, because there was no evidence to support either verdict. Assignment of Error No. 7 complains of the denial of the defendant’s motion for a new trial and in arrest of judgment because of a “total lack of evidence supporting the defendant’s conviction.”

In brief defendant seems to argue that the United States Supreme Court in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), disapproved Louisiana’s responsive verdict system, which lacked standards to guide the jury in selecting the lesser included offenses of which they might find the defendant guilty. The defendant argues that, if the State’s evidence is believed, it would support only a finding of aggravated rape; if the State’s evidence is not believed (and the defendant testified that he had not raped the victim), the defendant must be found not guilty.

The trial judge had no alternative but to submit to the jury the list of responsive verdicts. The responsive verdicts fixed by statute (C.Cr.P. 814) for aggravated rape include attempted aggravated rape and simple rape. Roberts v. Louisiana found the death penalty in Louisiana unconstitutional, not the responsive verdict system.

It is true that there is an element of intellectual confusion in certain of the responsive verdicts. (For instance, manslaughter is a responsive verdict to first degree and second degree murder. See State v. Cooley, 260 La. 768, 257 So.2d 400 (1972).

Nevertheless, no constitutional bar has been suggested which would invalidate the responsive verdict system used in Louisiana. Since the trial judge was required by statute to submit the responsive verdicts to the jury, and was not prohibited by the Constitution, the defendant cannot complain, and there is no merit in his argument.

The argument in the motion for a new trial and the motion in arrest of judgment that there was no evidence of attempted aggravated rape is simply a play on words. There was not only an attempt; the attempt was successful. There was evidence of every element of aggravated rape, and the defendant cannot complain that the jury did not find him guilty of as severe a crime as they might have.

Assignment of Error No. 8

After conviction, the defendant was billed as a multiple offender, and was sentenced as a third offender to forty years at hard labor.

It is argued that the present policy of the district attorney’s office in Orleans Parish is to employ the multiple offender procedure in every case in which the defendant has been previously convicted of a felony. In contrast, it is argued that it was not the policy during the administration of the district attorney’s predecessor to employ the multiple offender procedure, and that, when the defendant pleaded guilty in 1968 and 1971 to charges of simple burglary and simple robbery, he was not informed that these sentences might subsequently be employed to enhance the penalty, in the event he.should be convicted at a later time of another felony.

This argument is without substance. There is no requirement that a defendant must be informed of every possible consequence of his guilty plea before it can be considered knowingly and intelligently given. Defendant also complains that in 1971 he was charged with simple robbery and pleaded guilty to attempted simple robbery, without the bill of information having been amended. For this reason, since attempted simple robbery was not a responsive verdict, to a charge of simple robbery, there is a defect in the proceedings which invalidates the conviction and sentence for attempted simple robbery.

A similar agrument was answered in State v. Green, 263 La. 837, 269 So.2d 460 (1972), where the defendant, charged with armed robbery, pleaded guilty to attempted armed robbery without the bill of information having been amended. Attempted armed robbery is not a responsive verdict to armed robbery. C.Cr.P. 814. C.Cr.P. 558 provides that with the consent of the district attorney, an accused may plead guilty “of a lesser offense that is included in the offense charged in the indictment.” The procedure has been specifically approved by an amendment to C.Cr.P. 487 (Act 679 of 1970).

This contention is without merit.

Finally, the defense argues that the records in the cases charged in the habitual offender bill as prior felony convictions are silent as to whether defendant was represented by an attorney at the time of the sentence, and whether the defendant was advised of his rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), when he pleaded guilty. In Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747, 756 Fn. 6 (1970), the court stated that a guilty plea to a felony charge entered without counsel and without a waiver of counsel is invalid. In City of Monroe v. Fincher, 305 So.2d 108 (La.1974), this court applied Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), and held that where the record of defendant’s first DWI conviction does not establish that he had counsel or had made a waiver of counsel, the prior uncounseled DWI conviction may not be used to subject the defendant to prosecution and imprisonment as a repeat DWI offender. In the instant case, the State argues that the burden is upon the defendant to prove that the pleas were un-counseled or involuntary. However, it appears that under the Boykin rationale, the record must show that the pleas were counseled or waivers of counsel.

In the instant case, this court has not been provided with a transcript of the hearing on the multiple offender bill. Nor does the record contain the minutes of the prior guilty pleas.

The State merely argues that there was no evidence produced showing that the pri- or pleas of guilty were not voluntary or were not entered with the assistance of counsel.

The same argument was made in City of Monroe v. Coleman, 304 So.2d 332 (La.1974). The record must affirmatively show that the accused either was accompanied by counsel or that he was informed of his right to counsel and waived that right, and that the plea was knowingly and intelligently entered. See also State v. Guiliotte, 297 So.2d 423 (La.1974); State v. Coody, 275 So.2d 773 (La.1973).

In the absence of such showing, such convictions cannot serve to enhance the penalty under the multiple offender statute.

For these reasons, the conviction is affirmed; the sentence is set aside; the case is remanded to the district court for sentencing consistent with the views here expressed and in accordance with law.

ON REHEARING

MARCUS, Justice.

Rayfield Hoffman was indicted by the grand jury for the Parish of Orleans for having committed aggravated rape in violation of La.R.S. 14:42. After trial by jury, defendant was found guilty of attempted aggravated rape. Subsequent to his conviction, the district attorney filed an information accusing defendant of being an habitual offender. After a hearing, the trial judge found defendant to be an habitual offender and sentenced him to serve forty years at hard labor. On appeal to this court, defendant’s conviction was affirmed. However, his sentence was set aside and the case was remanded to the district court for resentencing due to the insufficiency of the record relative to the previous felony convictions upon which the habitual offender proceeding was based. Upon application by defendant, we granted a rehearing to reconsider whether or not the jury panel which served in defendant’s case was selected in accordance with law. After rehearing, we have determined that we were in error in affirming defendant’s conviction.

On original hearing, defendant urged as Assignment of Error No. 3 the failure of the trial judge to select a jury panel “. indiscriminately and by lot in open court as directed by La.Code Crim.P. art. 784. Defendant claimed that the trial judge called the prospective jurors for voir dire examination in the order in which their names appeared on a jury panel sheet comprised of fifty names which had been compiled and furnished by the Jury Commission. Defendant timely objected to the alleged procedure before the first prospective juror was called for voir dire examination. Moreover, he made his objection general as to each juror selected and sworn. Nevertheless, we were unable to find merit in defendant’s argument on original hearing because the record before us at that time did not demonstrate that the jury panel was in fact selected in the manner represented by defendant. We noted, however, that if defendant’s claims were true, “there would be a serious defect in the trial.”

On rehearing, the record has been supplemented at our request and it now substantiates defendant’s contention that the jury panel was not selected in accordance with law.

La.Code Crim.P. art. 784 directs:

In selecting a panel, names shall be drawn from the petit jury venire indiscriminately and by lot in open court and in a manner to be determined by the court. (Emphasis added.)

In order to facilitate the administration of criminal justice in Orleans Parish, the Louisiana Legislature in 1972 passed Act No. 41 which authorizes the creation and operation of a central jury pool for the Criminal District Court for the Parish of Orleans. Act No. 41, now codified as La.Code Crim.P. art. 409.1, provides as follows:

A.There is hereby created a central jury pool for the Criminal District Court for the Parish of Orleans which shall be administered by the Jury Commission of the Parish of Orleans as hereinafter provided.
B. In order to properly and adequately administer and operate the central jury pool for the Criminal District Court for the Parish of Orleans, the chairman of the Jury Commissioners for the Parish of Orleans shall designate two jury commissioners each month who shall be specifically charged with the responsibility for administering and operating the central jury pool. The chairman of the jury commissioners shall rotate the responsibility for the administration and operation of the central jury pool amongst the other four jury commissioners so that no jury commissioner shall be assigned to the central jury pool for more than six months out of every twelve months.
C. The Criminal District Court for the Parish of Orleans acting en banc shall by majority vote determine the number of jurors to serve in the central jury pool in any given month, the jury days for that month, and all other matters relative to the operating procedures of the central jury pool.
D. The jury commission shall select the number of jurors to serve in the central jury pool as hereinabove determined by the criminal district court acting en banc and by the method now prescribed by law.
E. The provisions of this Act shall be cumulative of and in addition to the method now prescribed by law for the selection of a jury panel for the Criminal District Court for the Parish of Orleans except that those provisions in conflict with this Act are hereby repealed and declared invalid insofar as they apply to the Criminal District Court for the Parish of Orleans. (Emphasis added.)

La.Code Crim.P. art. 409.1(C) permits the judges of the Criminal District Court for the Parish of Orleans acting en banc by majority vote to pass rules governing the composition of the central jury pool, as well as all matters relative to the operation of the jury pool. In our view, this article includes authority for the judges to adopt a procedure for compilation of a list of as many names from the central jury pool as are requested by the trial judge, from which list a jury panel would ultimately be selected. La.Code Crim.P. art. 409.1 does not, however, address itself to the proper method for selection of a jury panel. The article directs that the provisions of the act (central jury pool) “shall be cumulative of and in addition to the method now prescribed by law for the selection of a jury panel . . . (Emphasis added.) It further provides that the jury panel selection provisions in conflict with La.Code Crim.P. art. 409.1 are repealed and invalid insofar as they apply to the Criminal District Court for the Parish of Orleans. Except for the fact that a jury panel in Orleans Parish may now be selected from a central jury pool rather than from the petit jury venire as is the practice in most other parishes in the state, we perceive no conflict between the provisions of La.Code Crim.P. arts. 409.1 and 784. Hence, we conclude that the mandates of La.Code Crim.P. art. 784 are equally applicable whether the jury panel is selected from a petit jury venire or from a central jury pool. In either situation, La.Code Crim.P. art. 784 prescribes that the jury panel “shall be drawn . . . indiscriminately and by lot in open court . . .”

In the instant case, the jury panel was not selected in compliance with La. Code Crim.P. art. 784. Prospective jurors were called by the trial judge in the order that their names appeared on the jury panel sheet compiled by the Jury Commission. Clearly, the panel was not drawn indiscriminately and by lot in open court as mandated by law. Hence, defendant’s objection is well founded and we conclude that his conviction and sentence must be reversed. We cannot say, however, that the violation complained of herein is one which affects the determination of guilt or innocence in this case. Accordingly, having authoritatively construed and reconciled La.Code Crim.P. arts. 409.1 and 784 for the first time and contrary to the prior construction placed on these articles by a majority of the judges of the Criminal District Court for the Parish of Orleans, we have determined that the interests of the administration of justice would best be served by giving this decision prospective application only to those cases wherein a jury panel is selected after this opinion becomes final except those cases which have already been submitted to this court for decision.

DECREE

For the reasons assigned, our original decree is vacated and set aside; defendant’s conviction and sentence are reversed and the case is remanded to district court for a new trial in accordance with the views herein expressed.

DIXON, J., concurs, being of the opinion that the rule of this case should be effective at the latest on the day after this opinion is handed down.

CALOGERO, J., concurs.

      . C.Cr.P. 796 provides:
      “If it is discovered after a juror has been accepted and sworn, that he is incompetent to serve, the court may, at any time before the first witness is sworn, order the juror removed and the panel completed in the ordinary course.”

      . The record did not establish that defendant either had counsel or waived counsel prior to pleading guilty to the felonies which formed the basis of defendant’s sentencing as a multiple offender.

      . In the instant case, a list containing the names of fifty prospective jurors in numerical order was supplied to the trial judge. Opposite each name is a number that corresponds to the same name and number on another list of 355 names. This latter list is presumably the central jury pool. Other than this, nothing more is in the record relative to the procedure followed by the Jury Commission in reaching the point where the list of fifty prospective jurors were supplied to the trial judge for selection of the jury panel. Defendant does not dispute any aspect of the procedure relative to the selection of the central jury pool or the list of fifty names supplied to the trial judge. Accordingly, we do not pass upon same. Defendant’s only contention is directed at the manner in which the jury panel was selected by the trial judge from the list of fifty names. Hence, it is only to this issue that this opinion is directed.

      . La.Code Crim.P. art. 409.2 authorizes a similar central jury pool for the Twenty-Fourth Judicial District Court for the Parish of Jefferson.


author: DENNIS, Justice.

text:
    LOUISIANA NATIONAL BANK OF BATON ROUGE v. TRIPLE R CONTRACTORS, INC., et al.
    No. 58405.
    Supreme Court of Louisiana.
    April 11, 1977.
    Rehearings Denied May 13, 1977.
    Robert M. Day, Day & Grand, Baton Rouge, for plaintiff-applicant.
    Charles W. Borde, Jr., Durbin, Durbin, Borde & Fogg, Denham Springs, Charles 0. Simmons, Jr., E. Drew McKinnis, McKinnis & Juban, Baton Rouge, for defendants-respondents.
    Prentice L. G. Smith, Jr., Smith & Smith, Baker, for intervenor-respondent.
   DENNIS, Justice.

We are called upon to decide whether the developer of an apartment complex who divides its construction into two segments, by having the construction performed on separate but adjacent lots under two separate construction contracts, may give his lender a mortgage superior to material-men’s liens on the second segment although work commences on the first segment before the mortgage is filed. The case ultimately hinges upon whether the segments constitute two different “phases” of subdivision development under the Private Works Act, La. R.S. 9:4801, et seq.

On October 17,1972, Triple R Contractors mortgaged to Louisiana National Bank (LNB) 4.89 acres of its 6.6 acre tract on Essen Lane in East Baton Rouge Parish to secure a loan for the construction of a 94-unit apartment complex on the mortgaged property. LNB provided 10% of the funds for the project and Colwell Mortgage Trust supplied the remaining 90%; at the completion of construction, the mortgage and the note it secured were to be assigned to Col-well which would reimburse to LNB its 10% investment. The act of mortgage was recorded on the same day it was executed, together with a building contract between Triple R and Riddle Masonry Company, Inc., and an affidavit by a licensed civil engineer certifying that no work had begun and no materials had been placed on the building site. Construction began shortly thereafter.

On March 1, 1973, Triple R purchased an additional 2.58 acres adjacent to its 6.6 acre tract, and on March 29,1973, mortgaged the entire 9.18 acre tract to LNB, under the same arrangement with Colwell Mortgage Trust as the 1972 mortgage. This mortgage was given to secure a second loan to be used in the construction of a 97-unit apartment complex, specifically described and referred to as “Phase II” in the mortgage, on the 4.29 acres of the property not already devoted to the construction of Phase I. Recorded with the mortgage and a building contract for the Phase II construction, was a civil engineer’s no-work affidavit relating only to the 4.29 acres comprising Phase II. At this time work on Phase I was well under way.

Phase I was accepted as completed on January 2, 1974, and a clear lien certificate was issued by the Clerk of Court on February 4, 1974. The mortgage on Phase I was then assigned to Colwell Mortgage Trust.

Prior to the completion of Phase II, Triple R defaulted under the terms of both the Phase I and Phase II mortgages and notes. As a result Colwell Mortgage Trust instituted foreclosure proceedings against the Phase I complex and LNB instituted foreclosure proceedings against the Phase II complex.

A number of interventions claiming ma-terialman’s liens were filed against the Phase II property by persons who had furnished supplies and materials to that project. On February 12,1975 the property was adjudicated to LNB by Sheriff’s sale subject to any liens and encumbrances which primed the mortgage in favor of LNB. LNB then brought this rule to have its mortgage recognized as superior to the claims and liens of the intervenors and to have LNB declared to be entitled to the said property free and clear of all liens and other encumbrances.

After a hearing on the rule, the trial judge concluded that the apartment complex was built as one project, albeit in “two interconnected phases,” and that LNB’s rights under the Phase II mortgage could not prime those of the lienholding material-men because the mortgage was not recorded before work had begun on the project, which in his opinion included Phase I. The First Circuit Court of Appeal affirmed the judgment of the trial court.

LNB argues that the lower courts erred in failing to recognize the Phase II job site as distinct from the Phase I construction; under this view, the Phase II mortgage would have a superior rank if recorded before work had begun or materials were supplied to the Phase II job site.

La. R.S. 9:4801 grants a privilege upon immovables to persons furnishing materials for use in construction or improvement of the property with the consent or at the request of the owner. Materialmen’s liens, secured in compliance with the provisions of La. R.S. 9:4801, et seq., are superior to the claims of mortgagees unless the mortgages “exist and have been recorded before the work or labor has begun or any material has been furnished.” La. R.S. 9:4801(B). The phrase, “before the work or labor is begun or any material [has been] furnished,” is defined by La. R.S. 9:4819 (A)(1) and (3) as follows:

“(1) In the event that the work or construction is new, then ‘work or labor is begun or material is furnished’ is defined as having begun when either excavation has been started so that it can be observed on inspection, or material has been furnished and delivered to the job site which is visible upon inspection and which material when delivered had a value in excess of one hundred dollars provided, however, that test piling shall be excluded from this definition.
“(3) In any event, if an affidavit, duly signed by an architect, a licensed civil engineer or registered land surveyor, before a notary public, has been filed in the office of the clerk and recorder of the parish in which the property is located or in the case of Orleans Parish, in the mortgage office thereof, which affidavit certifies that he has inspected the job site on a certain date and at a certain time and that no work has begun or material furnished to the building site, either on new construction or on the improvement, repair or reconstruction of existing construction; and such affidavit is filed immediately prior to the filing of a bona fide mortgage or bona fide vendor’s lien, or within two business days thereafter, then any lender, including banks, savings and loan associations, life insurance companies, credit unions or other institutional lenders, and other interested parties may rely on the facts recited in said affidavit and shall maintain any and all privileges to and priority over other liens and claims as conferred by Title 9, and particularly, 9:4801, 9:4812, and 9:4813. The filing of such an affidavit will in no wise prejudice the rights of the furnishers of labor or material to file and perfect liens to which they may be entitled, but if materials have been furnished after the affidavit of the engineer, architect or surveyor has been filed, then a materialmen’s lien is subordinated to the bona fide mortgage or vendor’s lien.

The statute speaks of visible work or material on the “job site” but offers no guidance in delimiting the job site. The engineer’s affidavit of March 29, 1973, certified that no work had begun and no materials had been furnished to the 4.29 acre tract which LNB envisioned as the building site. Great pains were taken by the owner and the mortgagee to create two job sites by expressly stating in the mortgage that it was confected solely for the purpose of construction on Phase II, identified as 4.29 acres and depicted by a plat delineating the two-phase division of the mortgaged property. The record is convincing that no contract was let or visible work done on Phase II before recordation of the mortgage. However, the lower courts found that the job site was coextensive with the entire property mortgaged (9.18 acres) and the LNB could not rely upon the affidavit because the engineer did not certify (as he could not have done) that no work had begun on the entire tract.

We disagree, finding authority for division of the 9.18 acre tract into two separate job sites in La. R.S. 9:4816(A) which provides, in pertinent part:

“A. Any person furnishing service or material or performing any labor for the contemporaneous and continuous construction or improvement of two or more buildings or works by a single general contractor under a single construction contract, which buildings or works are situated on adjacent lots or parcels of land of a single owner, may file a single privilege upon all said buildings or works and upon the lands on which they are situated. Such a privilege shall secure the payment in principal and interest of the entire amount due for all service, material or labor, furnished and performed, and the costs of recording said privilege. Proof of the performance of labor on, or the delivery of materials to any of the said buildings or works shall be sufficient to establish the performance of labor on, or the delivery of materials to all such buildings or works. sf: *
“Such a privilege shall not attach to or bear upon buildings or works or the land on which they are situated, constructed or improved by other general contractors on adjacent lots or parcels of land, or constructed or improved by the same general contractor on adjacent lots or parcels of land, during a separate phase of subdivision development and pursuant to separate and distinct construction contracts. (Emphasis supplied.)

Under this provision, furnishing materials for one construction project would not give rise to a privilege upon buildings or the land on which they are situated, if the buildings were constructed on adjacent parcels of land, during a separate phase of development and pursuant to separate construction contracts. By the same token, work begun or materials furnished to one site could not be considered work begun or materials furnished to construction on adjacent parcels of land, during a separate phase of development and pursuant to separate construction contracts.

Although the statute refers to “subdivision development,” our courts had previously recognized its applicability to apartment complexes or other multi-building projects such as that involved in the instant case. McGill Corporation v. Dolese Concrete Company, 201 So.2d 125 (La. App. 1st Cir. 1967); Bernard Lumber Co. v. John F. Cerise Co., 148 So.2d 819 (La. App. 4th Cir. 1963). The addition to the statute in 1972 of the final sentence, relied upon here, was an apparent recognition that the increasing magnitude of housing developments, encompassing a much larger number of units and extending over a much longer time, required some limitation of the privilege granted therein. Acts 1972, No. 430, § 1. See, Dainow, Legislative Symposium: The 1958 Regular Session — Civil Code and Related Subjects: Part II (Security Devices), 19 La.L.Rev. 52, 69 (1958). We do not believe that the legislature intended by this amendment to restrict the statute’s application to single family dwelling subdivision developments when, as the courts had already noted, other types of large-scale housing developments present the same problems and warrant the same treatment. Furthermore, our interpretation of the statute is consistent with the rule that lien statutes, being in derogation of the common rights of owners and mortgagees, must be strictly construed against the lienors and liberally interpreted in favor of persons whose common rights are thereby impinged upon. In re Lurgi-Knost, Inc., 380 F.Supp. 400 (M.D.La.1974); Courshon v. Mauroner-Craddock, Inc., 219 So.2d 258 (La. App. 1st Cir. 1968), cert. den., 253 La. 761, 219 So.2d 778 (1969); Pringle-Associated Mortgage Corporation v. Eanes, 208 So.2d 346 (La. App. 1st Cir. 1968).

We conclude that Phase II of the project was a separate job site, within the meaning of La. R.S. 9:4819 (A), as modified by La. R.S. 9:4816(A). Both lower courts acknowledged that there were separate phases of development and separate building contracts; construction on Phase II proceeded according to plans which were not drafted until after Phase I construction was under way; Phase II occupied a separate parcel of land clearly identified in the March 29,1973 mortgage. Therefore, work begun or materials furnished to the Phase I job site cannot afford the lienholders a superior ranking over the mortgagee, LNB.

The lienors claim, however, that work had also begun on the Phase II site before the Phase II mortgage was recorded. Frank Granada, a subcontractor employed to install a sewer line on Phase I, testified at the hearing that at least one week before the March 29, 1973 mortgage was executed and recorded, he replaced a broken sewer line running approximately sixty feet into Phase II and servicing a small preexisting house located on Phase II.

Under La. R.S. 9:4819(A)(1), supra, and the cases interpreting it, “work begun” on a job site must be such that it would be visible upon inspection, so that a prospective lender might be warned that his mortgage would be subordinate to material-men’s liens. Pringle-Associated Mortgage Corporation v. Evans-Benck Construction Company, 209 So.2d 606 (La. App. 1st Cir. 1967); Pringle-Associated Mortgage Corporation v. Eanes, supra. There is nothing in the record to indicate that this minor sewerage work was apparent; in fact, Granada’s testimony suggests to the contrary that the four-inch submerged line would not have been visible upon inspection. This conclusion is strengthened by the testimony of David Huval, a licensed civil engineer, who stated that he inspected the Phase II property on March 29, 1973, and did not see any indication that work had been begun or materials furnished. Under the circumstances, we think the bank was entitled to rely upon his recorded affidavit to that effect. La. R.S. 9:4819(A)(3).

Based upon our conclusion that no visible work had been begun or materials furnished to the Phase II job site prior to the recordation of LNB’s March 29, 1973 mortgage, we find that the mortgage primes the claims of the intervenors. Accordingly, the judgment of the court of appeal is reversed, and judgment is rendered declaring LNB entitled to the property involved free and clear of all liens and other encumbrances. The costs of this appeal are to be borne by the appellees.

       2.58 acres of the Phase II building site were not acquired until March 1, 1973. If the lienors were permitted to prevail, ongoing work on a neighboring tract would give their claims priority over the mortgage which financed the purchase of this property — a bizarre result which we do not think was intended by the lawmakers.


author: SUMMERS, Justice.

text:
    Robert O. LANDRY v. Flora Villere, wife of A. T. WEBER, as Administratrix of the Succession of Flora Mary, widow of Walter P. Villere, Sr.
    No. 58531.
    Supreme Court of Louisiana.
    April 11, 1977.
    Rehearing Denied May 13, 1977.
    George L. Gillespie, Jr., Lyman L. Jones, Jr., Gillespie & Jones, Metairie, for plaintiff-applicant.
    C. Ellis Henican, Henican, James & Cleveland, New Orleans, for defendant-respondent.
   SUMMERS, Justice.

Robert O. Landry instituted this suit against the Administratrix of the Succession of Flora Mary, widow of Walter P. Villere, Sr. During the progress of the trial the administratrix resigned, and the newly appointed administrator was substituted as defendant. The suit involves a claim by Landry for a $1,500 commission allegedly owed him by the decedent Flora Mary Vil-lere because Landry sold a dragline for her. The trial court granted judgment in Landry’s favor, and on appeal to the Fourth Circuit the judgment was reversed. 335 So.2d 46.

Before Walter Villere died, he and Landry worked together on various construction and demolition projects. Some time after his death, his widow Flora Mary Vil-lere contacted Landry with a view to supervising the cleaning of the batture which her husband rented and where his operations had been conducted. Broken machinery, sheds and debris cluttered the area, and the owners of the batture were demanding a cleanup. Because of his familiarity with the location and his contacts with laborers who could perform this kind of work, Landry accepted the undertaking.

Mrs. Villere visited the work from time to time, and as the work progressed, the question arose as to what should be done with a dragline located on the batture belonging to Mrs. Villere’s husband’s business. At the time Mrs. Villere said she had received an offer of $12,000 for the dragline. However, the record does not disclose who made the offer or the conditions involved. After conversations at the site during January 1974, it was agreed between Mrs. Villere and Landry that he was to supervise the repair and otherwise restore the dragline, putting it in condition for sale for which he would receive a commission. These conversations occurred in the presence of Arthur Butler who was employed by Landry as a chauffeur and also as maintenance man at a motel owned and operated by Landry.

On another occasion when the question arose about the amount of the commission Landry was to receive for the sale of the dragline, Butler drove Landry and Mrs. Vil-lere to Road Equipment Co. There Landry and Mrs. Villere ascertained that ten percent was the usual commission paid for the sale of secondhand heavy equipment such as a dragline.

In keeping with this understanding, Landry engaged men and equipment to move the dragline from the batture. Work could not be undertaken there because the drag-line was in about two or three feet of water. Moving was accomplished by hauling the dragline over the levee, across the river road and onto a nearby yard where the work could be performed. The oil was drained from the engine, repairs were made, parts replaced and the dragline was scraped and painted.

Sometime in February, after the work was completed, Ralph A. Lewis of Jackson, Mississippi, learned from a local source that the dragline was for sale. He came to New Orleans and registered at Landry’s motel where he remained for about a week. On several occasions during his stay Butler drove him to the yard where the dragline was located. Lewis had a mechanic with him who inspected and started the dragline. The day he bought the dragline Butler was with him and saw the dragline loaded and hauled away.

In payment of the purchase price of $15,-000 Lewis delivered his draft in that amount to Landry. It was drawn on the Deposit Guaranty National Bank of Jackson, Mississippi, dated February 21, 1974, and was payable to Mrs. Walter Villere. Thereafter, on March 1,1974, Landry delivered the draft to Mrs. Villere, and together they walked from his motel to a nearby bank where the draft, indorsed by Mrs. Villere, was deposited. On this occasion Mrs. Villere paid Landry $2,088.75, the amount he had advanced to cover the expense involved in moving, repairing and restoring the dragline, saying, according to Landry, that she would send him a $1,500 check for the commission. It may be inferred that Mrs. Villere was determined to wait until the draft was honored before paying the commission. Before she was able to make the payment, however, Mrs. Villere died on March 14, 1974.

Thereafter Landry contacted Margaret Villere, a daughter-in-law of the deceased, who told him to send a bill for his commission to the attorney for the succession. Her testimony permits the inference that the deceased Mrs. Villere told her that she had hired Landry to clear the batture. Accordingly, Landry’s letter of March 26, 1974 claiming the $1,500 commission was sent to the succession attorney. When neither the payment was received nor the claim approved, this suit was filed on December 4, 1974. La.Code Civil Pro. arts. 3242, 3246.

The defense was principally based upon the inconsistency of Landry’s testimony relative to the time when Mrs. Villere agreed to pay him the commission. The defense proved that Mrs. Villere was away in Houston during February when Landry asserted the agreement was made.

Notwithstanding this evidence, according to his reasons for judgment, the trial judge was impressed by Arthur Butler’s testimony, finding him “utterly honest and clear in his recollection that Mrs. Villere agreed to pay Mr. Landry a 10% commission.” The trial judge was further of the opinion that Landry’s inability to recall the exact date of the discussion with Mrs. Villere leading to the agreement to pay the ten percent commission was unimportant in light of Butler’s testimony and the corroborating circumstances.

While accepting these important factual determinations of the trial judge, the Court of Appeal was nevertheless of the opinion that it was necessary, because of the proof requirements of the Dead Man’s Statute, La.Rev.Stat. 13:3721-22, for plaintiff to prove both the offer and acceptance which gave rise to Mrs. Villere’s liability by the testimony of at least one “creditable” witness, other than himself, and other corroborating circumstances. The Court of Appeal found that the testimonial proof of the offer, and the moving, repair and sale of the dragline constituted corroborating circumstances, but Butler’s testimony did not prove plaintiff’s connection with the sale of the dragline.

This suit was filed, within one year of Mrs. Villere’s death, as required by Section 3721(1). See footnote 1.

Considering the fact that Landry was 83 years old at the time of the trial, the trial judge understandably held that his inability to recall the exact date of the conversations with Mrs. Villere which led to the agreement to pay the commission was of “no moment.” Butler’s testimony that the agreement was made in January 1974 was “utterly honest and clear” on this point.

Butler, in the opinion of the trial judge, was a creditable witness as required by Section 3722. See footnote 1. There were also many corroborating circumstances established by the testimony of witnesses which are briefly outlined above. Furthermore, there were documents such as the bank statement showing the deposit by Mrs. Villere of the $15,000 draft; the statement of Road Equipment Company, Inc., itemizing the parts used to repair the dragline; Landry’s statement of March 1,1974 for the funds advanced by him for the repair of the dragline; Mrs. Villere’s check in payment of this March 1, 1974 statement; Landry’s letter of March 26 claiming the commission shortly after Mrs. Villere’s death; and the succession attorney’s inquiry of Landry on May 21,1974 relating to Landry’s claim of a commission.

Butler’s testimony that he heard Mrs. Villere agree with Landry that she would pay a commission of ten percent satisfies the proof requirement of Section 3722, for Butler was a “creditable witness” other than the claimant, and there were other corroborating circumstances. Proof of the agreement to pay was therefore satisfied. However, we cannot agree with the Court of Appeal’s opinion that there was no proof, other than Landry’s testimony, that he sold the dragline as agreed. Acting as an employee of Landry, Butler testified that on several occasions he drove the purchaser Lewis from Landry’s motel to the site where the dragline had been restored, and he was present when Lewis “bought the machine and loaded it.” This testimony was direct proof of Landry’s connection with the sale of the dragline. It is difficult to conclude that Butler’s actions to advance the sale were not carried out under Landry’s authority and instructions, or that the purchaser Lewis would have delivered the draft to Landry in payment of the purchase price if he was not instrumental in bringing about the sale.

Moreover, the circumstances militate against a conclusion that Landry supervised all of this work, advanced his funds, and sold the dragline as a gratuitous undertaking. The opposite conclusion is more in keeping with the facts and common sense.

Despite the fact that Mrs. Villere told Landry when they discussed repairing and selling the dragline that she had received an offer of $12,000 for it, the reality of that offer was not otherwise established. If she did receive such an offer, she nevertheless agreed to have Landry undertake the repair in an effort to obtain a better sale price, and she accepted payment when the sale was made. The fact that the costs and the commission resulted in a net return somewhat less than the purported offer of $12,-000 does not detract from Landry’s entitlement to the agreed-upon commission. Supervising the clearing of the batture and repair of the' dragline were valuable services rendered by Landry to Mrs. Villere on the promise that he would receive a commission.

Sections 3721 and 3722 of Title 13 of the Revised Statutes were amended in 1960 on the recommendation of the Louisiana State Law Institute to mitigate the rigors of the former rules with respect to creditors diligently attempting to enforce their claims against a deceased person. While the purpose of these sections is to protect assets of a deceased person from stale and unfounded claims which the deceased might have refuted, this is not a stale claim. It is instead a claim asserted immediately after Mrs. Villere’s death, at a time when the succession representative had ample opportunity to prepare a refutation if proof were available. It is, moreover, a claim which the circumstances indicate very persuasively Mrs. Villere could not have refuted.

For the reasons assigned the judgment of the Court of Appeal is reversed, and the judgment of the trial court is reinstated and made the judgment of this Court.

      . La.Rev.Stat. 13:3721:
      “Parol evidence shall not be received to prove any debt or liability of a deceased person against his succession representative, heirs, or legatees when no suit to enforce it has been brought against the deceased prior to his death, unless within one year of the death of the deceased:
      “(1) A suit to enforce the debt or liability is brought against the succession representative, heirs, or legatees of the deceased;
      “(2) The debt or liability is acknowledged by the succession representative as provided in Article 3242 of the Code of Civil Procedure, or by his placing it on a tableau of distribution, or petitioning for authority to pay it;
      “(3) The claimant has opposed a petition for authority to pay debts, or a tableau of distribution, filed by the succession representative, on the ground that it did not include the debt or liability in question; or
      “(4) The claimant has submitted to the succession representative a formal proof of his claim against the succession, as provided in Article 3245 of the Code of Civil Procedure.
      “The provisions of this section cannot be waived impliedly through the failure of a litigant to object to the admission of evidence which is inadmissible thereunder.”
      La.Rev.Stat. 13:3722:
      “When parol evidence is admissible under the provisions of R.S. 13:3721 the debt or liability of the deceased must be proved by the testimony of at least one creditable witness other than the claimant, and other corroborating circumstances.”


text:
    STATE of Louisiana v. John Albert JOHNSON.
    No. 58613.
    Supreme Court of Louisiana.
    April 11, 1977.
    Rehearing Denied May 13, 1977.

      Anthony M. Fazzio, DeVillier & Ardoin, Eunice, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Adam L. Ortego, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

In an indictment returned on October 28, 1975 the grand jury of Calcasieu Parish charged John Albert Johnson with the second-degree murder of Betty Jean Chavis on August 7, 1975. La.Rev.Stat. 14:30.1(1). After entering a plea of not guilty and not guilty by reason of insanity, Johnson was tried by jury, found guilty and sentenced to imprisonment at hard labor for life without benefit of parole, probation, or suspension of sentence. On this appeal Johnson argues six assignments of error. Finding that Assignment of Error No. 5 has merit, it is not necessary to render an opinion on the others.

Betty Chavis was the common-law wife of the defendant. On the night of August 7, 1975 she drove her car to Louis’ Drive-Inn in Lake Charles. She was accompanied by her son Kevin, age 8, her sister, her sister-in-law and her two young children. Betty Chavis parked near the drive-in service window, and let Kevin out to pick up food she had ordered. The car door remained opened.

While Kevin was at the service window, defendant arrived in a red Ford, parked next to Betty Chavis’ car and walked to the open door. He then sought to prevail upon her to get out of the car to talk to him. When she refused, he pulled her from the ear causing her head to strike the door frame after which she fell to the ground. Defendant aimed a .38 caliber pistol at her and shot four times and then raced away from the scene in his ear. Betty Chavis was rushed to the hospital but was pronounced dead upon arrival. Later that night defendant, accompanied by his parents, turned himself in to the Calcasieu Parish Sheriff’s office.

Assignment 5

Defendant’s sister Viola Cross was called to testify on behalf of the defense. She testified on direct examination that she had seen the defendant on August 1, 2, 5 and 7. On August 1 defendant came to see her at the service station where she worked. He was heartbroken and crying at the time. When she asked him what was wrong he said he was trying to talk to his wife but she refused to talk to him. They were having trouble because his wife “didn’t give him a chance”, some of his in-laws were interfering and another fellow was involved. He was trying to bring about a reconciliation with her because he couldn’t live without her, and he felt like killing himself.

Two days later, on the Sunday before the shooting on August 7, Betty Chavis called Viola Cross at the service station where she was working. They arranged a rendezvous at the Burger Chef on highway 171 at eleven o’clock that night. When the witness tried to testify to what Betty said at the rendezvous, the State’s attorney objected that statements of the deceased were hearsay. Admission of decedent’s hearsay statements, the State argued, denied the State the opportunity to cross-examine. The objection was overruled.

Further, Viola Cross testified that the defendant told her the “other fellow” was “packing a shotgun for him”, and that she believed the defendant was serious about taking his own life.

The witness further recounted her conversation with the defendant about his request for a ride to Orange, Texas, to visit his sister there. He felt this would enable him to get his mind off of his wife. She also testified to his trip to Orange, his return to Lake Charles and her conversation with the defendant relating to the intervening circumstances.

She then related what the defendant told her after he returned to Lake Charles, about meeting the decedent’s two brothers and later the same night finding his wife in Dee’s Lounge with Francis Jones, the “other fellow”. The witness was then asked, “And what happened?” to which she replied, “So, he said he walked up to the table and he asked Betty could he talk to her for a minute. He wanted to talk to her, and he said she hesitated, but she did get up, and he said — ”

At this point the State’s attorney objected, saying:

“Your Honor, I’m going to again enter an objection to the things that the defendant said. Again, my objection is based on the fact that this is hearsay, that the defense is attempting to get into evidence and get in statements made by the defense, get that into evidence and get in statements made by the defense, get that into evidence made by the defendant without having to put the defendant on the stand and — .”

Defense counsel immediately moved for a mistrial and the trial judge admonished the jury that any remarks made by the State’s attorney

“. • . pertaining to the defendant testifying should be completely ignored. A defendant in a criminal proceeding has a constitutional right not to testify, not to give testimony of any kind. He has the absolute right to remain silent, so you are instructed to give no weight of any kind and erase from your mind any remarks made by Mr. Ortego pertaining to the defendant testifying. He is not required to do so.”

Again defense counsel objected that the admonition was not sufficient and that a mistrial was necessary.

Article 770 of the Code of Criminal Procedure is relied upon to support the defense motion for a mistrial based upon the prosecutor’s comment that the defense was attempting to get defendant’s statements into evidence “without having to put the defendant on the stand.” The article provides:

“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(3) The failure of the defendant to testify in his own defense;
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.”

In brief the defense argues the State’s attorney referred directly to the defendant’s failure to testify, thus focusing the jury’s attention on the fact that the defendant was presenting a defense without testifying. It is asserted that the comment is more than a mere reference to defendant’s silence, and amounts to an argument which used defendant’s silence to persuade the judge to sustain the prosecutor’s objection.

This Court has, according to the State’s argument, interpreted the quoted mandatory mistrial provision of Article 770 to mean that the reference must be direct and the inference plain that the remark was intended to bring the jury’s attention to defendant’s failure to testify.

In his per curiam the trial judge was of the opinion the remarks of the State’s attorney were directed to the defendant’s attempt to elicit statements supposedly made by the defendant to a third party prior to the alleged crime. As such, the remarks were not made for the purpose of directing attention to defendant’s failure to testify.

According to the trial judge, to constitute reversible error, a remark by the State’s attorney concerning defendant’s failure to testify must be direct and the inference must be plain that such a remark was intended to bring the defendant’s failure to testify to the attention of the jury. The judge was convinced that the remarks of the State’s attorney in this case did not influence the jury and did not contribute to the verdict.

The State’s attorney and the trial judge rely upon the decisions in State v. Reed, 284 So.2d 574 (La.1973), and State v. Howard, 262 La. 270, 263 So.2d 32 (1972), and take the position that to constitute reversible error the comment must be direct and the inference plain that the remark was intended to bring the jury’s attention to the failure of the defendant to testify. State v. Reed is authority for the proposition that statements in argument to the effect that there is no refuting evidence do not constitute an impermissible reference to the failure of the defendant to testify. To constitute reversible error, according to that decision, a remark by the district attorney concerning the defendant’s failure to testify must be direct, and the inference plain that the remark was intended to bring the jury’s attention to the failure to testify. The case is not authority for the State’s position in the case at bar. Here the remark was a direct reference to the defendant’s failure to take the stand. The remark was to the effect that defendant was trying to prove things he said without taking the stand himself. In this situation the intention of the prosecutor is irrelevant because a direct violation of a prohibitory statute occurs and the error is fatal. State v. Hall, 297 So.2d 413 (La.1974). 2 Marr’s Criminal Jurisprudence § 663 (1923).

State v. Howard also announces the rule that to be reversible a remark by the district attorney concerning defendant’s failure to testify must be direct and the inference plain that the remark was intended to bring the jury’s attention to such failure in order to constitute reversible error. There, however, the Court was considering an indirect remark and the case is distinguishable.

In the United States almost universal legislation decrees, in varying phraseology, that no inference may be drawn from the failure of the accused to testify. 8 Wigmore on Evidence § 2272 (McNaughton rev. 1961). And in Louisiana the history of the principle that it is error for the State’s attorney to refer directly or indirectly to the failure of the accused to testify in his own defense is fully set forth in State v. Bentley, 219 La. 893, 54 So.2d 137 (1951).

It suffices to say at this time that the rule of law is clearly stated in Article 770 of the Code of Criminal Procedure, and there is a general recognition and acceptance of the wisdom of the rule. A defendant is granted constitutional protection against self incrimination, which means that he cannot be compelled to give evidence against himself. La.Const. art. 1, § 16 (1974). An accused is not considered to be a competent witness at his trial unless he request the right to testify. La.Rev.Stat. 15:461. These rights would be hollow indeed if the silence they protect was allowed to be used against the accused by the State’s attorney.

The comment in this case is a graphic example of a substantial violation of a statutory right, and Article 770 mandates that a mistrial be ordered when such a remark is made. La.Code Crim.Pro. art. 921. An admonition to the jury to disregard the remark or comment shall not, in the plain language of Article 770, be sufficient to prevent a mistrial.

For the reasons assigned, the conviction is reversed, the sentence is set aside, and the case is remanded for a new trial.