text:
    STATE of Louisiana, Appellee, v. Ulysses SMITH, Appellant.
    No. 58975.
    Supreme Court of Louisiana.
    July 1, 1977.

      Patrick C. McGinity, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of possession of cocaine with intent to distribute it, La.R.S. 40:967, and sentenced to twenty-five years at hard labor. He appeals, relying upon a single assignment of error. By it, he complains of the denial of a motion to suppress evidence (the cocaine) as illegally seized.

The sole issue of this appeal concerns the legality of an initial stop of the accused by the police, which subsequently led to the finding of cocaine on his person.

(1)

A law enforcement officer is permitted by law to stop any person in a public place “whpm he reasonably suspects is committing, has committed, or is about to commit a felony or a misdemeanor * * * La.C.Cr.P. art. 215.1. The prohibition against unreasonable searches and seizures of the person by our state and federal constitutions likewise requires this, at the minimum, as a basis for a governmental agent to invade the privacy or person of individuals living under our constitutions. State v. Kinneman, 337 So.2d 441 (La.1976).

The right of the police to make an investigatory stop must be based upon reasonable cause sufficient to cause them to suspect the detainee of past, present, or imminent criminal conduct. State v. Weathers, 320 So.2d 892 (La.1975); State v. Winesberry, 256 La. 523, 237 So.2d 364 (1970). As these decisions note, the reasonable cause must be determined under the facts of each case, by whether the officers had sufficient knowledge of particular circumstances sufficient to permit them to infringe upon that individual’s right to be left alone free of government interference with his liberty.

If, however, the officers do not have the right to make an investigatory stop, evidence seized or otherwise obtained as the result thereof cannot constitutionally be admitted into evidence against a criminally accused. State v. Truss, 317 So.2d 177 (La.1975); State v. Finklea, 313 So.2d 224 (La.1975); State v. Jones, 308 So.2d 790 (La.1975); State v. Saia, 302 So.2d 869 (La.1974). This inadmissibility extends to property dropped or abandoned in response to an illegal stop. State v. Lawson, 256 La. 471, 236 So.2d 804 (1970).

(2)

Two uniformed police officers were on routine patrol in the neighborhood of a housing project. They observed the accused walking across a courtyard in which they were driving. They did not know the accused, who lived in the project.

They called to the accused to stop and to come to their police car. As we read the officer’s testimony, the sole reason for the stop was: “We stop everyone we don’t know in the area — a high crime area, a lot of narcotics traffic, numerous subjects with weapons, and armed robberies on pedestrians and business in the area.” Tr. 5, see also Tr. 25, of the hearing on the motion.

The stop was made at noon on December 18,1972. The accused was wearing a leather coat over two sweaters. The officers themselves did not remark upon the accused’s clothing as any cause for their stop.

The officers descended from the car. One officer checked the accused’s identification papers and found them to be in order. The other frisked (patted down) the accused from inside to out, starting with the pants pockets, the sweaters, and then the outside leather jacket. He felt something (soft) in the left outer pocket; when he grabbed it, the defendant ran. The officers tackled the accused and arrested him.

The soft object in the pocket was a plastic bag which (upon analysis) contained cocaine. Additional cocaine was found on the accused’s person after he was taken to the hospital for treatment of lacerations received in the encounter.

The state argues in brief the particular causes supplying reasonable cause for this stop and frisk were “(1) the high crime rate of the area, (2) the fact that this man was unknown to the officers, and (3) that he was heavily clothed on this sunny day gave the officers reasonable cause to stop the defendant.”

(3)

The evidence is devoid of any basis by which these law enforcement officers could reasonably suspect that the accused was committing or about to commit a crime, or that he had committed one. Police officers are not entitled to stop at will any person in a high-crime area just because that person is unknown to them, nor because he is wearing a leather jacket on a warm December day.

To repeat what we have consistently emphasized, under La.C.Cr.P. art. 215.1, the governmental officer must have reasonable cause to stop and question the particular individual detained. If based solely upon the officer’s observation of that individual at that time, the stop must be based upon a reasonable belief, justified by some conduct on the individual’s part, that he has been, is, or is about to be engaged in criminal conduct. State v. Cook, 332 So.2d 760 (La.1976). We find here no basis for any such reasonable suspicion of this individual walking in broad daylight in the courtyard of the housing project in which he lived.

Conclusion

For the reasons stated, the product of the illegal stop is not admissible in evidence, the motion to suppress was incorrectly denied and must be sustained, the conviction and sentence must be set aside, and this case must be remanded to the district court for a new trial in accordance with law.

REVERSED AND REMANDED FOR A NEW TRIAL.

SUMMERS, J., dissents for the reasons assigned.

SANDERS, C. J., dissents for the reasons assigned by SUMMERS, J.

SUMMERS, Justice

(dissenting).

Appellant, Ulysses Smith, was charged on January 12,1973 by bill of information with willful and unlawful possession with intent to distribute a controlled dangerous substance, cocaine. La.Rev.Stat. 40:967. A motion to suppress was filed by appellant in which it was alleged that cocaine was unlawfully seized from his person as a result of a warrantless search on December 18, 1972. The motion was denied, and the case was set for trial on June 27, 1973.

The trial commenced, and a jury was impanelled and sworn. The case was recessed for a few minutes to enable the court to dispose of other matters on the docket. Counsel for defendant requested and obtained permission of the court for his client to accompany him into the hallway to telephone witnesses. Defendant was discharged on his bond to use the phone. Minutes later, counsel for the defendant returned to the courtroom and informed the trial judge that his client had absconded by running down the stairs and out of the building. A mistrial was declared. Approximately seventeen months later appellant was apprehended and again brought to trial. This trial also resulted in a mistrial in October 1974. Finally, on January 9, 1975, appellant was again tried. This trial concluded with a unanimous verdict of guilty, after which defendant was sentenced to twenty-five years at hard labor.

Appellant contends that the trial court erred in denying his motion to suppress.

Two uniformed policemen of the New Orleans Urban Squad, Officers Giangrosso and Dusset, were on routine car patrol in the vicinity of 2600 Congress Street at noontime on December 18, 1972. The officers described the area as “a high crime area, a lot of narcotic traffic, numerous subjects with weapons, and armed robberies on pedestrians and businesses . . . As was their habit, the officers drove onto the grounds of the Florida Housing Project from Gallier Street, and as they proceeded through the courtyard toward Congress Street, they observed Smith walking in the same direction. They had never seen him before. Smith was wearing a three-quarter length leather coat over a dark brown coat sweater, which, in turn, covered a black turtle-neck sweater. It was a bright, sunshiny day with the temperature in the low sixties.

Officer Giangrosso drove to a point alongside Smith, and as they stopped Dus-set called to him to come to the car. Routinely the officers stopped and questioned strangers in the project, frisking them for weapons because of the numerous armed robberies which had occurred there. Smith complied, and the officers got out of the car and asked Smith for his identification. Smith responded by removing a small bundle of loose papers from his rear pocket which he placed on the trunk of the car. While Dusset looked through these papers for identification, Giangrosso began to frisk Smith. He patted him down inside the leather coat first. Continuing, Giangrosso patted the outer leather coat and when he reached the outer left pocket, feeling an object there, he held it. At this time Smith became “agitated”, thrust his hands into that pocket, turned and fled toward Gallier Street, trying to shed his leather coat and holding a plastic bag in his fist as he ran.

Both officers gave chase, and about 100 feet from the car Dusset attempted to tackle Smith but Smith went down to one knee as the pursuing officer rolled over his shoulders. Smith then spun around and started to run in the opposite direction, at which time he was tackled by Giangrosso. When Smith was tackled the plastic bag protruding from his clenched fist was thrown to the ground. He then resisted detention, “screaming and hollering that he’s not going back to jail, and that we [the officers] would have to kill him. He resisted violently and we finally managed to physically subdue him . . .” Having subdued Smith, Giangrosso recovered the plastic bag containing a white powder which he believed to be heroin. It was later shown to be cocaine.

Smith was taken to Charity Hospital for examination of the minor lacerations and bruises incurred in the encounter with the police. There, in the course of his examination to determine if he was an addict, the sleeve of his sweater was rolled up to inspect his arm for track marks. One package fell out, which contained 6 packets of cocaine. Further search of Smith’s clothing uncovered a large foil package containing two plastic bags. One bag had 6 packets of cocaine, the other contained 20 packets of the same substance.

The issue presented concerns the legality of the initial stop of Smith which led to the search and seizure of the cocaine.

It is a statutory right of “law enforcement officers” to stop any person in a “public place” whom they “reasonably suspect[s] is committing, has committed or is about to commit a felony or a misdemeanor”, and they “may demand of him his name, address and an explanation of his actions.” La.Code Crim.Pro. art. 215.1.

In the case at bar these requirements were fulfilled. These “law enforcement officers” stopped Smith in a “public place” to “demand of him his name, address and explanation of his actions.” This much is undisputed. The crucial question is whether the facts and circumstances gave these officers cause to “reasonably suspect” Smith was committing, had committed or was about to commit a crime.

Reasonable cause to suspect is, of course, a lesser requirement than reasonable or probable cause to believe, the latter being the standard applied to justify a search and seizure. Neither standard is, however, in the context of constitutional searches and seizures, so stringent that it must be supported by facts which would be sufficient to convict. State v. Weathers, 320 So.2d 892 (La.1975).

To establish grounds to suspect, therefore, the lesser of three burdens of proof is required. The common meaning of “suspect” as it relates to crimes is “to imagine (one) to be guilty or culpable on slight evidence or without proof” such as to “suspect one of theft” or “suspect one of giving false information.” In its broad and general context the word means “to imagine to be or to be true, likely or probable: have a suspicion, intimation or inkling.” Webster’s Third New International Dictionary (unabridged). Adopting this common meaning of the word “suspect” will provide for the just determination of this prosecution. La. Code Crim.Pro. art. 2.

Did these officers have a reasonable suspicion that Smith was about to commit a crime? Only the initial stop is in question here, for the officers’ right to frisk for a dangerous weapon is not seriously controverted in view of the record showing that they were aware of the fact that many pedestrians in this project were the victims of armed robberies. And, plainly, when Smith thrust his hand into his pocket and fled facts were presented justifying the pursuit — the higher standard of reasonable cause to believe had developed.

What then were the facts which gave reasonable cause to suspect which would justify the initial stop? These officers were routinely assigned to patrolling this project and the neighborhood. They knew that it was “a high crime area, a lot of narcotic traffic, numerous subjects with weapons, and armed robberies on pedestrians and businesses . . . .” Smith was a stranger to them, and, to say the least, his dress was unique and uncalled for in the prevailing weather conditions, a mild sunny day at 12:00 noon.

It is evident that these officers, accustomed as they were to this high crime area, had reason to suspect this stranger and his garb. It is a permissible inference that their experience and training supported this suspicion. Would they not know that such inappropriate dress could serve little purpose except to provide concealment of objects on the person of the wearer? Prevalence of narcotic traffic and armed robberies at this location would indicate a likelihood that either narcotic drugs or weapons were the objects concealed. And, of course, possession of either object permitted the inference that a crime had been or would be committed. The officers were, therefore, lawfully entitled to stop Smith and demand his identity. The circumstances “are to be viewed through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.” United States v. Hall, 174 U.S.App.D.C. 78, 525 F.2d 857, at 859 (1976); United States v. Magda, 547 F.2d 756 (2d Cir. 1976); State v. Cook, 332 So.2d 760 (La.1976). A reasonable cause to suspect having been shown, Article 215.1 was complied with.

Although, under federal standards, a police officer may not arrest upon mere suspicion, Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), or for “investigation”, Bennett v. United States, 70 U.S.App.D.C. 76, 104 F.2d 209 (1939), he has a duty to approach, Lee v. United States, 95 U.S.App.D.C. 156, 221 F.2d 29 (1954) confront and interrogate (which may include the power to temporarily detain). These procedures provide the most useful, most efficient and most effective method of investigation which often develops probable cause. Keiningham v. United States, 113 U.S.App.D.C. 295, 307 F.2d 632 (1962).

Street encounters are an everyday occurrence in today’s cities, and the United States Supreme Court has acknowledged that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). The Court in Terry upheld an intrusion by a police officer based on something less than probable cause, saying: “In justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” 392 U.S. at 21, 88 S.Ct. at 1880. These tests are met in the instant case.

The considerable weight to be accorded to the fact-finding prerogative of the trial judge in these cases is noted. With this influence added to the recited facts, the ruling denying the motion to suppress gains additional support.

While giving lip service to the “suspect” standard in Article 216.1, the majority in fact applies a higher standard to this stop, saying police must have “reasonable cause” to stop.

I would affirm the ruling of the trial judge.

      . Testimonv at the trial on the merits showed the day to be bright and sunshiny, with temperature in the low 60’s.

      . La.Code Crim.Pro. art. 215.1:
      “A. A law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or a misdemeanor and may demand of him his name, address and an explanation of his actions.
      “B. When a law enforcement officer has stopped a person for questioning pursuant to this Article, and reasonably suspects that he is in danger of life or limb, he may search the outer clothing of such person for a dangerous weapon or for any other thing the possession of which may constitute a crime.
      “C. If the law enforcement officer finds a dangerous weapon or any other thing the possession of which may constitute a crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.”


source: Caselaw Access Project

author: TATE, Justice. TATE, Justice, SUMMERS, Justice

license: Public Domain

text:
    STATE of Louisiana, Respondent, v. Rex DRIEVER, Relator.
    No. 59109.
    Supreme Court of Louisiana.
    July 1, 1977.

      George T. Anderson, Jr., Shreveport, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., Roland V. McKneely, Asst. Dist. Atty., for plaintiff-respondent.
   TATE, Justice.

We granted certiorari, 341 So.2d 414 (La.1977), to review the denial of the defendant’s motion to quash this prosecution as prescribed. La.C.Cr.P. art. 578(2).

The chief issue is whether the state’s inability to locate a material state witness for a portion of the prescriptive period constitutes an interruption of the prescribed time within which the state must try the accused. See La.C.Cr.P. art. 579(2). The trial court held the prescription was interrupted. We reverse.

Context Facts

The defendant is charged with a non-capital felony. La.C.Cr.P. art. 578(2) provides that “no trial shall be commenced” in a non-capital felony “after two years from the date of institution of the prosecution.” (Other code articles provide, however, that in limited circumstances this delay may be suspended or interrupted, La.C.Cr.P. arts. 580, 581, one of which the state claims here applies.)

In the present instance, the accused was charged by bill of information on September 10, 1974. On the present occasion, by motion of August 24, 1976, the state fixed the prosecution for trial on September 13, 1976, (i. e., three days past the date upon which the continued prosecution was prescribed). On that date, the accused filed a motion to quash the prosecution as prescribed.

After a hearing, the district court overruled the motion. It essentially held that the absence of a material state witness, allegedly the only eye-witness to the crime, excused the state’s delay in not trying the accused within the mandatory statutory time allowed for trial of the charge.

We have concluded that the state has not met its heavy burden of showing that it is excused from trying an accused on a charge later than the period mandated by Article 578. The prosecution must therefore be dismissed.

(1)

In the first place, the evidence shows that the missing witness was available for trial before expiration of the two-year period.

We need at this point to recapitulate the evidence and showing at the hearing. Aside from minute entries and stipulations as to records and procedures, the state relies solely upon the testimony of its investigator to show that it could not try the case earlier.

The record shows that, on September 10, 1974, the accused was formally charged with a killing five days earlier in a nightclub fight. He was arraigned and pleaded not guilty on September 18, eight days after he was charged.

The state set the case for trial on four earlier occasions: November 25,1974, January 27, 1975, March 10, 1975, and May 5, 1975.

The defendant never moved for continuance. On each occasion, he appeared for trial and subpoenaed some five or six defense witnesses, who were present. Likewise, on each occasion, the state subpoenaed some 16 state witnesses (7 of them police officers and a coroner).

The state did not ever move for a continuance. The trial date in each instance was passed on the court’s own motion. Since no formal motion was made at the time, we have to rely upon the reason suggested by an investigator’s testimony, which was taken after the two-year prescriptive period had expired:

Starting about February, 1975, the state was unable to locate the whereabouts of Sherri Lawrence, a material state witness. We will accept for the moment (but see (2) below) the investigator’s testimony as showing that diligent efforts were made to locate Miss Lawrence, which were not successful until August, 1976.

Thereafter, by motion of August 24, the state fixed the charge for trial on September 13, 1976, which the district court in its post-hearing per curiam states was “the first available trial date on the fall term.”

In summary, the missing state witness was located in August, 1976, before expiration of the two years. By motion of August 24, the district attorney fixed the accused’s trial for September 13, after expiration of the mandatory two-year delay, instead of before.

We know of no prohibition which prevented the trial court from fixing the trial before the expiration of the delay, instead of after it, even though this might have required a special jury week (see footnote 1). The court system cannot excuse itself from affording an accused a trial within the delay required by law, simply by relying upon internal operating procedures which result in noncompliance with the statutory mandate.

To protect persons accused of crime against indefinite delay in state prosecutions against them, our legislature has provided that “no trial shall be commenced . after two years” from the date of institution of the present prosecution. La. C.Cr.P. art. 578(2). The constitutional right to a speedy trial was intended to be at least partially effectuated thereby.

The present record does not support a finding that the state’s duty to try the case within the prescribed time is excused by the only reason advanced in support of the delay: That the statutorily limited period for trial of the defendant was interrupted because, during the period, the accused “cannot be tried” for a “cause beyond the control of the state,” La.C.Cr.P. art. 579(2).

(2)

In the second place, assuming that inability to locate an essential state witness may under some circumstances be a valid cause interrupting prescription, the state has not here met the heavy burden of proving that the absence of this material witness excused indefinite delay in trying an accused within the statutorily mandated period.

Miss Lawrence was held as a material witness for some two months or so after the charge was filed against the accused, until she was released on her own recognizance. Apparently it was only after February 14, 1975 that the state lost track of her, although the evidence suggests she was still in Shreveport, a nearby city. (See S-2, also testimony of the defendant’s attorney.)

The state investigator in charge of the case now testifies, after the time-limits had elapsed, that he had tried to locate her diligently. His initial efforts were to ask other deputies on perhaps two occasions to check on her whereabouts, when they were going to Baton Rouge or Lafayette (where she had previously worked) to a convention or on other business. Finally, on October 21, 1975, the state asked the assistance of the Federal Bureau of Investigation in listing her as a missing witness — and eventually, in August 1976, thereby her whereabouts routinely showed up. Following this, her presence was readily secured for trial.

On the other hand, the state made no attempt to locate Miss Lawrence through inquiry of her mother (residing in Kilgore, Texas) or of her former employers or friends in Shreveport. Defense counsel, for instance, testified that he talked with her on a local call by telephone during 1975, during a period in which the investigator’s (post-delay) testimony indicated that the state did not then know her whereabouts. By a letter to the prosecutor of March, 1975 (S-2), defense counsel suggested a local Shreveport address where she resided — so far as the record shows, the state investigator did not check this address at that time.

Further, although the state argues that Miss Lawrence’s testimony was its chief evidence in the case, the post-prescription record does not establish this. At the hearing, the investigator admitted that she was a “material” witness, not necessarily an eye-witness. He also admitted that others of the available state witnesses were present at the scene of the crime, at least one of whom was also a material witness.

In our opinion, by this showing, the state’s heavy burden to prove it could not try the charge within the time mandated by law, even assuming (see footnote 2) that its inability to locate Miss Lawrence could under some circumstances have been “cause beyond the control of the state,” by reason of which the defendant “cannot” be tried within such period, La.C.Cr.P. art. 579(2).

Decree

Accordingly, since we find that the state did not try this accused within the time mandated by law, La.C.Cr.P. art. 579(2), the motion to quash the indictment must be granted, La.C.Cr.P. art. 581, the trial court ruling to the contrary must be overruled, and defendant ordered discharged from custody or bail, La.C.Cr.P. art. 538(2).

TRIAL COURT RULING REVERSED AND MOTION TO QUASH GRANTED.

SUMMERS, J., dissents and assigns reasons.

DENNIS, J., dissents.

TATE, Justice,

concurring.

By these additional concurring reasons, the writer feels it may be appropriate to note certain issues implicit in this case. It was unnecessary for the court opinion to discuss them, because the motion to quash was sustained for other reasons.

In my opinion, there is substantial doubt that the state’s inability to ascertain the whereabout-s of a witness, even a material witness, ever prevents the state from trying an accused so as to constitute an interruption of prescription. The state’s case may be weaker, but traditional speedy-trial protections as well as the language and functional purpose of Articles 578-581 of the code, may not permit the state to delay a trial beyond the statutory period simply because its case is weak.

Support for this view is furnished by the very circumstance that in Louisiana the state has never before this case, so far as we can ascertain, advanced this as a cause beyond its control interrupting prescription, with the consequence that the state’s already lengthy period to try the accused starts anew. This view is re-enforced by the rather long periods given the state for mandatory trial of the case after the accused is formally charged, La.C.Cr.P. art. 578.

This interpretation is further supported by construing the code as a whole. The code does not permit even continuances, if sought because of the indefinite availability of a material witness. La.C.Cr.P. art. 709(2) (see footnote 3 in majority opinion). If a continuance may not be granted for this reason, it seems to me, such a reason cannot be relied upon as a “cause beyond the control of the state”, by reason of which “the defendant cannot be tried,” La.C.Cr.P. art. 579(2). In short, if under the code the indefinite absence of a witness is not sufficient cause to delay a trial, neither can it be (it seems to me) a sufficient cause for the state to delay its prosecution of an accused beyond the period mandated by law.

Diligent and scholarly prosecution and defense counsel have cited provisions from elsewhere that permit inability to produce an essential witness to suspend prescription. Our own code apparently does not do so, for only motions by the defendant suspend prescription. La.C.Cr.P. art. 580. The apparent reason for this is seen by the long periods (two years for non-capital felonies, three years for capital felonies) allowed for state trial by our code, La.C.Cr.P. art. 578, as compared with the much shorter periods (e. g., 60 days, four months) permitted by the source provisions. The statutory intent deduced, most probably, is that if the state cannot locate its witnesses within the two years allowed by statute, it must try its case without them — rather than maintain indefinitely the untried charges against the accused, in violation of his speedy-trial rights.

The inability to locate a state or defense witness should, at most, suspend prescription, and then only for a reasonable time certain in which the missing witness can be located. Cf. footnote 3, in majority opinion. Otherwise, by “interruption” of prescription, if allowed on this ground, the state may vitiate the intended speedy-trial protection given criminally accused persons by the statutorily-mandated time limitations for the trial of prosecutions. See footnote 1 of this concurring opinion.

The Uniform Rules of Criminal Procedure (National Conference of Commissioners of Uniform State Laws, 1974), provide a workable approach to the present problem. Rule 722(f)(7) excludes from (suspends) its rather short (four months) mandated periods for all trials:

“The period of a continuance granted at the request of the prosecuting attorney, if (i) the continuance is granted because of the unavailability of evidence material to the State’s case, where the prosecuting attorney has exercised reasonable diligence to obtain the evidence and there are reasonable grounds to believe that the evidence will become available within a reasonable time; * * *”

(To the same effect is American Bar Association Standards for Criminal Justice, Standard 2.3(d)(i) (1968).)

The present facts highlight the merits of regarding the inability of the state to locate a witness, not as an interruption, but only as a suspension of periods mandated for trial — providing that, before the time expires, the state moves for a continuance and proves at that time a valid cause practicably then preventing the immediate trial of the charge.

In the present case, the defendant appeared with his witnesses each of the four times the case was fixed for trial during the two-year period allowed the state to try the charge. Had he sought continuance on the ground that one of his witnesses indefinitely could not be located, the continuance might properly have been denied (see footnote 3 of the majority opinion), as (presumably) might have been a similar motion by the state.

So far as the accused was concerned, the state’s two-year period was running within which the state was mandated to try his case.

Nevertheless, after the two years had elapsed, the state for the first time sought, by hindsight, to justify its failure to try him earlier. The state’s case is based upon the justifying reasons essentially within the memory of its investigator, and not practicably subject to searching examination at the hearing. (The hearing was held many months after the circumstances arose which allegedly created the state’s alleged inability to locate its witness.)

To the contrary, the Uniform Rules would require that, before the period expires barring further prosecution, the state must move for continuance at the time the cause for the delay arises. This requirement permits a contemporaneous and formal court inquiry into whether sufficient cause then exists to permit the state to delay the time of the accused’s trial beyond the period otherwise mandated.

Further, if the cause is proved at that time, the period to try the accused is merely suspended for a definite time. It is not (in effect) indefinitely annulled by the after-the-fact finding of an earlier interruption of the time prescribed by law for trial of the case. Thus, the state’s failure to try the accused within the mandatory period may not be excused (as here contended), after the time has elapsed, by what is (belatedly) claimed to have been a failure to locate a missing witness some months earlier.

I add these concurring reasons, for what light they may shed upon the problem this case presents to the court, as well as for whatever aid they might be in future legislative regulation of the problem (which should, if this be allowed as a cause suspending prescription, also considerably shorten the periods allowed for the trial of pending charges). For, as noted by this concurring opinion, in my personal view (not necessarily the court’s), the inability of the state to locate a missing witness may neither interrupt, La.C.Cr.P. art. 579, nor suspend, La.C.Cr.P. art. 578, the period within which the state must try an accused after a criminal prosecution is instituted against him.

SUMMERS, Justice

(dissenting).

Relator Rex Driever was charged by bill of information on September 10, 1974 with the September 5, 1974 second degree murder of David Wall. La.Rev.Stat. 14:30.1. According to this record, the only eyewitness to the offense was Sherri Lawrence who was taken into custody by the State as a material witness. She was soon released on her own recognizance on September 8, 1974.

After the relator’s arraignment on September 18, 1974, at which he entered a plea of not guilty, the case was set for trial on November 25, 1974, January 27, 1975, March 10, 1975 and May 5, 1975. On each occasion, however, the case was passed over because of the absence of Sherri Lawrence, the State’s material eyewitness, who had absconded and could not be located. There is no evidence that relator objected to these continuances, or that he moved for or otherwise demanded a speedy trial, although he was present in court on each occasion.

In the meantime the office of the district attorney and the police investigating the case made inquires and enlisted the assistance of the Lafayette (where Sherri Lawrence had lived previously) and the Baton Rouge Sheriff departments. In October 1975 the District Attorney formally requested the F.B.I. to join the search. Finally, in late August 1976, Sherri Lawrence was located in Monarch, North Dakota. She was promptly returned to Louisiana by the District Attorney, who, on August 24, 1976, obtained a formal written order fixing the case for trial on September 13,1976, the first available trial date during the fall term of court.

On that date relator moved to quash the indictment, alleging that he should be discharged because more than two years had elapsed since the institution of prosecution on September 10, 1974 without any interruption or suspension of the time limitation prescribed in Article 578(2) of the Code of Criminal Procedure. A hearing was held on defendant’s motion in which the State presented evidence to support its position that it had exercised reasonable diligence in its effort to produce Sherri Lawrence to testify. The other facts were stipulated, or appear from the record. The trial judge overruled the motion, and writs were granted by this Court to review the ruling.

The question is whether the trial judge properly considered the absence of a material witness to be a “cause beyond the control of the state” within the contemplation of Article 579(2) which would interrupt the period of limitation established by Article 578(2). Article 579 creates exceptions to the time limitations prescribed by Article 578, demonstrating that the limitation periods of Article 578 are not imperative. The particular provisions of Article 579(2) which applies here permits an interruption of the Article 578 time limitations if the defendant cannot be tried “for any cause beyond the control of the state.” This last part of Clause (2) of Article 579 “is based upon the consideration that the state is entitled to the full period allowed by law and in many instances administratively requires the whole of the period allowed by Article 578. However, if for any cause beyond the control of the state the trial cannot be commenced within the periods allowed, then the periods are enlarged by operation of Clause (2).” Official Revision Comment (e), art. 579.

The Official Revision Comment under Article 581 restates the principle: “If an interruption or a suspension occurs under Arts. 579 or 580, then, of course, the time limitation will not expire . . . .” This comment continues: “In this connection it will be noted that the last part of Clause (2) of Art. 579 gives the court a great deal of discretion in determining whether there has been an interruption because commencement of the trial was not possible for causes ‘beyond the control of the state.’ ” We have been referred to decisions of Federal Circuit Courts for the proposition that the absence of a material state witness is a proper ground for denying a motion for a speedy trial. Mackey v. United States, 122 U.S.App.D.C. 97, 351 F.2d 794 (1947) and Shepherd v. United States, 163 F.2d 974 (8th Cir. 1947). Although not on point, the principle is recognized that absence of a material witness is a “cause” for delaying the trial. And, upon the facts in the case, we are convinced that the witness’ failure to appear was “beyond the control of the state.”

Considering the intendment of Articles 578 and 579 as expressed in the comments to these articles, the “great discretion” vested in the trial judge, the gravity of the alleged crime, the failure of the relator to object to the continuances or demand a speedy trial, and the total absence of any showing of prejudice to relator as a result of the delay, the ruling of the trial judge was correct.

I would uphold that ruling.

      . Although we do not rely solely upon the following circumstance, the district court calendar shows that the court was open for hearings in Bossier Parish each day during the weeks of August 23 (one judge) and September 6 (two judges). The court rules apparently permitted a special fixing for jury trial of this criminal case on some or all of these days (see La.Civ.P. art. 193); the calendar shows that the date fixed for trial (September 13) was calendar-designated as for regular assignments of felony arraignments and juvenile court, but not for petit jury trials such as the present, specially assigned to be tried that date.

      . In additional concurring reasons, the author of this opinion by the court has expressed his personal view to the contrary of this assumption, an issue not reached by the court.

      . If, for instance, the state had formally sought continuance from the trial dates earlier fixed, on the ground of Miss Lawrence’s absence, there is some doubt that the continuance would have been granted, assuming the same rule applies to the state as to the accused. See interpretations of La.C.Cr.P. art. 709(2), e. g., State v. Cain, 307 So.2d 621 (La.1975), which uphold the denial of a continuance in the absence of a showing of the probability that the presence of the absent witness could be obtained by the date to which the trial will be deferred. Had the state sought and been refused a continuance from an earlier fixing, presumably it would have been forced to try its case absent Miss Lawrence’s testimony.

      . If mere inability to locate a state witness “interrupts” the period during which the state is required to try an accused, then in effect the state may be granted indefinite delays to try cases because of the difficulty of inefficiency involved in locating particular witnesses. In the present case, the state witness was not located until August, 1976, almost two years after the prosecution had been instituted. If inability to locate a witness interrupts prescription, then the same result is reached if this witness had not been located until 10 years later, after which the state would still have had 2 more years to try the accused.
      La.C.Cr.P. art. 579(2) should probably be interpreted to permit interruption of prescription due to inability to secure the presence of witnesses only when: “The defendant cannot be tried . . . because his presence for trial cannot be obtained by legal process. * * *”
      Compare this code article with the federal speedy trial act, 18 U.S.C.A. Section 3161, which expressly recognizes a suspension of the stringent time limits for trial thereby provided for “Any period of delay resulting from the absence or unavailability of the defendant or of an essential witness.” 18 U.S.C.A. 3161(h)(3). The reason for allowing a suspension (not even an interruption), for such reason, must also be viewed in the context of the act, which will require that felony trials be commenced within sixty days of arraignment, 3161(c), with arraignment to be within ten days of the indictment, Id.

      . La.Code Crim.Pro. art. 578 provides:
      “Except as otherwise provided in this Chapter, no trial shall be commenced:
      (1) In capital cases after three years from the date of institution of the prosecution;
      (2) In other felony cases after two years from the date of institution of the prosecution; and
      (3) In misdemeanor cases after one year from the date of institution of the prosecution.
      The offense charged shall determine the applicable limitation.”

      . La.Code Crim.Pro. art. 579 provides:
      “The period of limitation established by Article 578 shall be interrupted if:
      (1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
      (2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state.
      The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.”


author: TATE, Justice. SUMMERS, Justice

text:
    STATE of Louisiana, Respondent, v. Roy J. NEAL, Relator.
    No. 59153.
    Supreme Court of Louisiana.
    July 1, 1977.
    Charley J. Schrader, Jr., Houma, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., John R. Walker, Asst. Dist. Atty., for plaintiff-respondent.
   TATE, Justice.

We granted certiorari, La., 341 So.2d 1131 (1977), to review the trial court’s denial of a motion to quash the indictment of the relator for driving while intoxicated, second offender. La.R.S. 14:98. The substantial issue for our determination is whether a person can be charged as a second offender, when the second incident of driving while intoxicated occurs before the motorist has been convicted of an earlier offense.

The relevant facts are these:

On January 17, 1976, the defendant Neal was arrested and charged with driving while intoxicated. Before trial on that charge, he was again arrested and charged with driving while intoxicated on May 11, 1976.

Neal pleaded guilty to the January charge on October 22, 1976. Three days later, the prosecutor then filed an amended bill of information as to the May charge, by which amendment (on the basis that the October conviction on the January charge was the first offense) Neal was charged with driving while intoxicated, second offense, and thus subject to the greater penalties for a second offense.

The Issue

We grant certiorari to review the denial of the defendant’s motion to quash the amended charge that, because of the October conviction, he was subject to prosecution on the May incident as a second offender. The issue, as articulated in the state’s brief, is: “Can a defendant be charged and subsequently convicted for second offense DWI when the arrest upon which the second offense DWI is based occurred after the arrest for the first offense DWI but prior to conviction or guilty plea in first offense DWI?”

Interpretation of La.R.S. 14:98

The issue involves an interpretation of the statutory intent reflected by La.R.S. 14:98.

This enactment provides criminal penalties for operating a vehicle while intoxicated. After the first conviction, greater penalties are provided for subsequent offenses: for a “second conviction”, fine and imprisonment not less than 125 days in the parish jail, 98 C; for a “third conviction,” imprisonment for from one to five years in either the parish jail or the state penitentiary, 98 D; and for a “fourth conviction,” imprisonment in the penitentiary for not less than ten nor more than thirty years, 98 E.

The state contends that the statute unambiguously provides for enhanced punishments upon second, third, and fourth “convictions.” The state points out that the statute does not specify that the first conviction need precede the second conviction.

Nevertheless, in our opinion, the preferable construction of La.R.S. 14:98 is that one cannot be guilty of the crime of driving while intoxicated, second offense, unless such crime is committed after a first conviction for this offense. We are re-enforced in this view by jurisprudential applications of the statute (by which the previous convictions are regarded necessary allegations and proof of the second offense crime itself), as well as by the most reasonable legislative intent reflected by a provision for greater punishment upon second and subsequent convictions.

Where an accused is charged as second, third, or fourth DWI offender, the information or indictment must allege the prior convictions. State v. Montgomery, 250 La. 326, 195 So.2d 285 (1967). Further, where there is a jury trial, this indictment charging the multiple offenses should be read to the jury. State v. Johnson, 250 La. 473,196 So.2d 797 (1967). The prior offense or offenses must be proved as part of the state’s case, otherwise the conviction will be set aside. City of Monroe v. French, La., 345 So.2d 23 (1977).

Thus, the earlier conviction(s) must be alleged and proved as part of the state’s case against an alleged second (or third or fourth) offender before a conviction as a multiple offender may be secured, so as to permit the imposition of the enhanced penalties for later offenses. See also State v. Bouzigard, 286 So.2d 633 (La.1973) (possession of marijuana, second offense).

If therefore the prior conviction is an essential allegation for conviction of the second-offense crime, an accused cannot be charged with the latter crime when arrested for the second incident if, at that time, he had not been before convicted of a first offense.

“Criminal conduct consists of: (1) An act or a failure to act that produces criminal consequences, and which is combined with criminal intent.* * * ” La.R.S. 14:8. Neither specific or general criminal intent, La.R.S. 14:10, to commit the crime of driving while intoxicated, second offense, can be inferred from driving while intoxicated, when one has never before been convicted for the offense — a necessary allegation of indictment and proof of the crime, which is not in existence at the time of the offense (and which may never arise, should for instance the accused be acquitted or never tried for the first offense).

Traditional American principles of criminal responsibility of an individual for his conduct do not permit the state to convert a formal charge against him for a less serious offense, into a charge for a more serious offense, on the legal basis of a change of status or other incident which occurs after the initial offense charged. Criminal conduct ordinarily subjects an individual to the imposition of criminal penalties applicable to the act at the time it is committed.

We agree with the relator that the consistent application of La.R.S. 14:98 over the years has been that prior convictions, in order to be available for imposition of a greater punishment as a subsequent offender, must precede the commission of the principle offense, that is, the latest prosecution in point of time. Indeed, this is the greatly preponderant interpretation of similar statutes throughout the nation, regardless of the phraseology of the statute (or whether it specifies that the earlier conviction^) must precede the latest offense), whenever enhanced penalties are provided for a subsequent offense, whether with regard to multiple-offender statutes or to driving-while-intoxicated or other statutes creating a greater degree of criminal liability for a repeater offense by wording similar to the present. Annotation, 24 A.L.R.2d 1247, 1248-49, see, e.g., 1270-73 (1952).

As summarized by this annotation, 24 A.L.R. 1248-49 many of the decisions note as legislative purpose the principle inherent in such a provision: “* * * the legislature in enacting such a statute intended it to serve as a warning to first offenders and to afford them an opportunity to reform, and that the reason for the infliction of severer punishment for a repetition of offenses is not so much that defendant has sinned more than once as that he is deemed incorrigible when he persists in violations of the law after conviction of previous infractions.”

In this regard, counsel for the defendant cogently observes in his brief: “The criminal law has a basic purpose to discourage the violation of the law. Its primary purpose is not to find excuses to put people in jail. The conviction and resultant punishment hopefully will discourage future violation. The increase of punishment for second and subsequent offenders presupposes that the prior punishment has not resulted in rehabilitation. If a second conviction is allowed for an offense occurring before the first conviction, we have done away with the rehabilitation concept implicit in recidivist statutes.”

The interpretation, here urged by the state would permit the arrest of an offender for four offenses committed on the same day to result, upon conviction of the four offenses, in imprisonment for not less than ten years in the state penitentiary as a fourth offender. It would permit simultaneous charging of four offenses widely separated in time, for which the accused had never before been arrested, and his imprisonment for from ten to thirty years in the penitentiary upon his belated conviction of the charges.

In our opinion, our lawmakers did not intend that individuals be subjected to enhanced punishment, including to the penitentiary, when at the time the offense was committed the offender was subject only to fine or minor imprisonment. Consonant with the general purpose of enhanced punishment statutes, the most reasonable legislative intent to ascribe to the more serious punishment accorded for a subsequent “conviction”by La.R.S. 14:98 is that, if following conviction of the offense, the offender repeats the prohibited conduct, he is then subject to enhanced penalty — but not if, after the first conviction has put him on notice of the possibility of more severe punishment, the offender takes heed and reforms.

We conclude, therefore, that the district court was in error in denying the defendant’s motion to quash the amended indictment, insofar as it alleged that for his May 11,1976 charge of driving while intoxicated he was subject to punishment as a second offender solely by virtue of his October, 1976 conviction of a similar offense. The motion to quash is granted, and the case is remanded to the district court for further proceedings in accordance with law.

REVERSED AND REMANDED.

SANDERS, C. J., dissents for the reasons assigned by SUMMERS, J.

SUMMERS, J., dissents and assigns reasons.

MARCUS, J., dissents.

SUMMERS, Justice

(dissenting).

On January 17, 1976, relator Roy Joseph Neal was arrested and charged with driving while intoxicated, an offense denounced by Article 98 of the Criminal Code. Thereafter, on May 11,1976, Neal was again arrested and charged with driving while intoxicated, both incidents having occurred in Terrebonne Parish.

On June 2, 1976, the District Attorney filed a bill of information against Neal for driving while intoxicated, second offense, citing as the first offense a guilty plea to a charge that in Lafourche Parish on June 22, 1971, he operated a motor vehicle while under the influence of alcoholic beverages in violation of Article 98. As a second offense the bill of information alleged that he violated Article 98 by operating a vehicle while under the influence of alcoholic beverages on May 11, 1976.

While the second offense charge was pending, Neal pled guilty to the January 17, 1976 offense on October 22, 1976. Three days later, on ex parte motion of the District Attorney, the June 2, 1976 second offense bill of information, based upon the June 22, 1971 and May 11, 1976 offenses, was amended. The guilty plea conviction of October 22, 1976, involving the January 17, 1976 offense, was substituted for the June 22, 1971 guilty plea conviction.

As thus amended the driving while intoxicated, second offense, charge was ultimately fixed for trial on December 29, 1976. However, prior to the trial date, a motion to quash the bill of information was filed by Neal on November 29, 1976, alleging that the amendment rendered the bill defective because it was accomplished without proper notice, without leave of court and without legal authority. The motion also alleged that the bill of information was fatally defective, unlawful, illegal and unconstitutional in that the second offense occurred prior to the conviction for the first offense. The motion to quash was denied, and the trial judge granted defendant time to apply to this Court for review of his ruling. Cer-tiorari was granted on Neal’s application. 341 So.2d 1131.

The amendment to the bill of information was undoubtedly a change in the substance. It is evident also that the amendment came long before the date fixed for trial. Such an amendment is permissible in advance of trial, La.Code Crim.Pro. arts. 532(2), 487. Since the trial had not begun at the time, the trial judge properly authorized and approved the amendment after the District Attorney’s ex parte action. Relator’s remedy, if he felt aggrieved by the amendment, was to move for a continuance. La.Code Crim.Pro. art. 489. Actually a continuance has, in effect, resulted by the two-month-time interval between the amendment and the trial and by allowing time to apply to this Court for writs to review the trial judge ruling. This contention is therefore without merit.

The other issue raised by the motion to quash is res nova in our jurisprudence. The defense contends that the phrase “on a second conviction”, as used in Paragraph C of Article 98, requires in a second offense indictment that the first offense must result in a conviction prior to the occurrence of the second offense. Here, it is argued, the second alleged offense occurred before Neal was convicted on the first offense. Therefore, the second offense charge did not allege a violation of Article 98.

In support of this contention, the defense asserts that for many years the consistent practice has been to construe Article 98 in pari materia with the Habitual Offender Statute, La.Rev.Stat. 15:529.1. Under this latter statute, the defense argues, a person is deemed a second offender only if the crime resulting in the second conviction is committed after the first conviction. Guided by this concept prosecutors charging a second offense under Article 98 have required that a conviction of the first offense must precede the happening of the second offense before a second offense charge would lie. This contemporaneous construction should therefore govern prosecutions under Article 98 for second, third or fourth offenders, according to the defense.

Except for defense counsel’s assertion, nothing in the record discloses that such a contemporaneous construction is followed in practice. To the contrary, the State’s attorney in a very positive manner denies that such a construction has been adopted by prosecutors. He represents that when other offenders are similarly situated they are charged as relator Neal has been charged. Moreover, the doctrine of contemporaneous construction is, more properly, applied to settled administrative practice and has not been applied by this Court to the construction of statutes defining crimes. Traigle v. PPG Industries, 332 So.2d 777 (La.1976); Washington v. St. Charles Parish School Board, 288 So.2d 321 (La.1974); Roberts v. City of Baton Rouge, 236 La. 521, 108 So.2d 111 (1958); Conley v. City of Shreveport, 216 La. 78, 43 So.2d 223 (1950); State ex rel Payne v. Exchange Bank of Natchitoches, 147 La. 25, 84 So. 481 (1920). The defense argument, that alleged contemporaneous construction should be considered in this determination, is therefore not well-founded.

The defense contention that Article 98 should be considered in the light of the Habitual Offender Law because they are statutes in pari materia is also untenable. If this argument were adopted, the second offense under Article 98 would also have to occur after conviction of the first, as the Habitual Offender Law requires. The argument is not acceptable. The statutes are not laws in pari materia. The Habitual Offender Law has no application to the instant case, and there is no basis for making it applicable by analogy. The Habitual Offender Law is a general statute concerned with enhancing the penalties of habitual felons, whereas Article 98 is a special statute which defines as a crime the repetition of a specific crime, prescribing a greater punishment when there is a second conviction for the same offense. State v. Washington, 248 La. 894, 182 So.2d 528 (1966). Cf. State v. Montgomery, 250 La. 326, 195 So.2d 285 (1967); State v. Sanders, 337 So.2d 1131 (La.1976). One statute deals with habitual felony offenders generally, by enhancing their penalties because they are recidivistic transgressors of felony laws generally, while the other pertains to those who repeat the same offense which is a misdemeanor in the first instance.

As the State points out, there is no more reason for construing Article 98 in pari materia with the Habitual Offender Law than there is for considering other repeat offense crimes to be in pari materia with that enactment. To illustrate this argument reference is made to articles of the Criminal Code which provide for repeat crimes carrying graver penalties as distinguished from enhancement of penalties in felony convictions after a former conviction for another felony, not necessarily the same crime. Thus, Article 67, proscribing theft, provides for a crime carrying a graver penalty when it is a repetition of a like offense for which the offender has previously been convicted. Reckless operation of a vehicle, Article 99, is another example. And the same is true of possession of marijuana, second offense. Rev.Stat. 40:966. State v. Ricks, 329 So.2d 684 (La.1976); State v. Bouzigard, 286 So.2d 633 (La.1973).

When reference is made to a second conviction in Article 98, there is no intimation that the offense upon which the convictions are based must occur in any particular sequence. It is the repetition of the same offense which the statute is designed to punish, regardless of the sequence in which they occur.

Another factor relevant to the construction of Article 98 is the public policy consideration underlying its enactment. Almost fifty years ago this Court recognized that driving a motor vehicle while intoxicated or under the influence of drugs presents one of the greatest menaces to human life and property. State v. Glennon, 165 La. 380, 115 So. 627 (1928). It is common knowledge that the menace continues to plague our highways. Article 98 is a special enactment reflecting the Legislature’s concern for protecting the public against the ravages of the drunken driver by prescribing graver penalties for repeat offenders. State v. Gerald, 250 La. 759, 199 So.2d 536 (1967). It is therefore my opinion, contrary to the majority view, that the legislative concern in this repeat offense statute was not rehabilitation but deterring the danger implicit in drunken drivers on the streets and highways of the State.

These considerations persuade me to apply to Article 98 a meaning which is in keeping with general principles of statutory construction. If the legislature had intended that the second offender statute should be based upon offenses and convictions which occurred in chronological sequence as relator contends, such a limitation would have been stated as it was in the Habitual Offender Statute. Taken according to their fair import, in their usual sense, and in order to carry out the legislative policy, the words of the statute do not require that the crime resulting in the second conviction must have been committed after the first conviction; they merely mean “on a second conviction” without requiring that the crime resulting in the second conviction shall have been committed after the first conviction. By the result it reaches the majority rewrites the law. I would uphold the ruling of the trial .judge.

      . La.R.S. 14:98 provides:
      “A. Operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, vessel or other means of conveyance while under the influence of alcoholic beverages, narcotic drugs, central nervous system stimulants, hallucinogenic drugs or barbiturates.
      “B. Whoever operates a vehicle while intoxicated is guilty of a crime and upon conviction shall be fined nor less than one hundred twenty-five dollars and not more than four hundred dollars or imprisoned in the parish jail for not less than thirty days nor more than six months or both.
      “C. On a second conviction, the offender shall be fined not less than one hundred twenty-five dollars nor more than five hundred dollars and shall be imprisoned for not less than one hundred twenty-five days nor more than six months.
      “D. On a third conviction, the offender shall be imprisoned with or without hard labor for not less than one year nor more than five years, and may be fined not more than one thousand dollars.
      “E. On a fourth conviction, the offender shall be sentenced to imprisonment at hard labor for not less than ten nor more than thirty years.
      “F. Provided that any offense under this statute committed more than five years prior to the commission of the ’ crime for which the defendant is being tried shall not be considered in the assessment of penalties hereunder.”

      . In all the years the present statute has been part of our law, this is the first instance before this court in which the interpretation advanced by the state has been even suggested. So far as we can ascertain, the same is true as to other repeater offenses, such as La.R.S. 14:67 (theft), 14:99 (reckless operation of a motor vehicle), and 40:966 (possession of marijuana). Long ago, in construing Act 39 of 1921 (Extra-Session), we noted that the statutory language providing a greater penalty “for the second or subsequent offense” (Section 3) of a liquor-prohibition statute, “evidently has reference to an offense committed after conviction”, State v. Sharp, 156 La. 531, 537, 100 So. 707 (1924) (Italics ours) — despite the lack of specific statutory language to that effect.

      . La.Crim.Code art. 98 provides:
      “A. Operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, vessel or other means of conveyance while under the influence of alcoholic beverages, narcotic drugs, central nervous system stimulants, hallucinogenic drugs or barbiturates.
      “B. Whoever operates a vehicle while intoxicated is guilty of a crime and upon conviction shall be fined not less than one hundred twenty-five dollars and not more than four hundred dollars or imprisoned in the parish jail for not less than thirty days nor more than six months or both.
      “C. On a second conviction, the offender shall be fined not less than one hundred twenty-five dollars nor more than five hundred dollars and shall be imprisoned for not less than one hundred twenty-five days nor more than six months.
      “D. On a third conviction, the offender shall be imprisoned with or without hard labor for not less than one year nor more than five years, and may be fined not more than one thousand dollars.
      “E. On a fourth conviction, the offender shall be sentenced to imprisonment at hard labor for not less than ten nor more than thirty years.
      “F. Provided that any offense under this statute committed more than five years prior to the commission of the crime for which the defendant is being tried shall not be considered in the assessment of penalties hereunder.”

      . La.Rev.Stat. 15:529.1 provides:
      “A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government or country of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state upon conviction of said felony shall be punished as follows:
      “(1) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction;
      “(2) If the third felony is such that, upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life, then the person shall be sentenced to imprisonment for any term, not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction;
      “(3) If the fourth or subsequent felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life, then the person shall be sentenced to imprisonment for the fourth subsequent felony for a determinate term not less than the longest term prescribed for a first conviction and not more than his natural life and in no case less than twenty years.
      “B. It is hereby declared to be the intent of this Section that an offender need not have been adjudged to be a second offender in a previous prosecution in order to be charged as, and adjudged to be, a third offender, or that an offender have been adjudged in a prior prosecution to be a third offender in order to be convicted as a fourth offender in a prosecution for a subsequent crime. Provided, however, that the offender shall be deemed a second offender only if the crime resulting in the second conviction shall have been committed after his first conviction; that one shall be deemed a third offender under this Section only if the crime resulting in the third conviction shall have been committed after his conviction for a crime which in fact caused him to be a second offender, whether or not he was adjudged to be a second offender in the prior instance; and that one shall be deemed to be a fourth offender under this Section only if the crime resulting in the fourth conviction shall have been committed añer his conviction for a crime which in fact caused him to be a third offender, whether or not he was adjudged to be a third offender in the prior instance.” (emphasis added.)


author: TATE, Justice. SANDERS, Chief Justice

text:
    Roma Gail STELLY, Plaintiff-Appellee-Relator, v. Richard Keith MONTGOMERY, Defendant-Appellant-Respondent.
    No. 59162.
    Supreme Court of Louisiana.
    July 1, 1977.

      Leon S. Haas, Jr., Opelousas, for plaintiff-appellee-relator.
    C. Kenneth Deshotel, Opelousas, for defendant-appellant-respondent.
   TATE, Justice.

We granted certiorari, La., 341 So.2d 1131, to review the ruling of the court of appeal, 339 So.2d 956 (3d Cir. 1977), that the plaintiff mother could maintain no cause of action against her husband to obtain the custody of the children of the marriage.

As stated by the court of appeal, the decisive issue is “whether the plaintiff wife may sue her husband for a writ of habeas corpus awarding her custody of the children, where the marriage still continues and there is no pending suit for separation from bed and board or divorce.”

Facts

The plaintiff wife instituted this habeas corpus proceeding, La.C.Civ.P. arts. 3821-31, to recover the custody of the two children of the marriage, respectively aged 5 years and 14 months. In 1969, the parties were married in St. Landry Parish, Louisiana, and lived in Louisiana until 1973. They then moved to Georgia and lived there as man and wife for three years.

In mid-1976, due to marital conflicts, the husband left and returned to Louisiana.

At the time he left, the husband took the 5-year-old child, allegedly for a visit. Shortly afterwards, he went back to Georgia with his parents and took the 14-month-old baby back to his parents’ home in Louisiana. A week later, the wife filed this habeas corpus suit to obtain custody of the children.

After hearing, the trial court concluded that both parents could provide the children with a good and loving home. The trial court further found that the wife was a good mother and correctly indicated that, if this were a suit for separation and divorce, the mother was entitled to custody of the children, under the principle that the best interest of children of tender years is ordinarily better served by leaving them with their mother. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971).

Nevertheless, since no suit for separation or divorce was pending, the trial court felt that the paternal authority over the children, Civil Code Article 216, should be recognized as conferring the primary right to custody in him, absent some showing of abuse of that authority.

The court of appeal did not reach this merit issue. Overruling the district court on a procedural issue, a majority held that, during the marriage, the wife cannot sue her husband, even for custody of the children of the marriage. It based this holding upon La. R.S. 9:291 (I960), providing for interspousal immunity from suits during marriage. It therefore affirmed, on this different ground, the dismissal of the mother’s habeas corpus proceeding to obtain the custody of her children.

(1)

The majority of the court of appeal was in error. In State ex rel. Lasserre v. Michel, 105 La. 741, 30 So. 122 (1901), this court resolved the apparent conflict between paramount parental custody rights, to be effectuated by the writ of habeas corpus, and the statutory prohibition against interspousal suits, now La. R.S. 9:291.

We there held: Even though no suit for separation or divorce has been filed, when the parents are actually living separate and apart, the statutory interspousal immunity from suit does not bar, and was not intended to bar, the courts from hearing a habeas corpus proceeding instituted by one parent against the other. We reasoned: The habe-as corpus suit is actually instituted in the interest of the children, although done so by a parent, to effectuate the state’s interest in the welfare of these children.

We further observed, as underlying reasons of policy for this interpretation, 105 La. 747, 30 So. 125:

“We do not think that either husband or wife should be driven to the necessity of instituting an action of separation from bed and board or divorce, to have the matter of the legal custody of the children judicially inquired into. Actions of separation or divorce should not be forced; nor do we think that where husband and wife are, as a matter of fact, living apart, the spouse out of the possession of the children of the marriage, and claiming the legal right to have such possession, should be driven to force or to fraud to obtain the same. Such a course of conduct would tend directly to breaches of the peace and to violence. It is right, proper, and legal for the party entitled to the possession of the child to obtain the same under the sanction of judicial proceedings. It would be stretching the terms of article 105 [now La. R.S. 9:291] of the Code of Practice for no good purpose, and with no good results, to hold otherwise. That article does not refer to proceedings of that character.”

Until the present suit, this long-settled interpretation of the interspousal immunity statute has not been questioned. No substantial reason is shown why this interpretation was intended to be changed by the re-enactment of provisions of the 1870 Code of Practice into similar provisions of the 1960 Code of Civil Procedure.

As correctly stated in the dissenting opinion of the court of appeal, 389 So.2d 959, 960:

“The majority, in declining to follow the clear holding of Lasserre v. Michel, supra, concludes that the holding of that case is no longer viable because when decided in 1901, applications for writs of habeas corpus were brought in the name of the state (Art. 719 of the Code of Practice of 1870) and this is no longer necessary under the Louisiana Code of Civil Procedure enacted by Act No. 15 of 1960. The majority thus reasons that since this is a proceeding solely between husband and wife and not within the exceptions provided for in LSA-R.S. 9:291 the wife’s petition for a writ of habeas corpus states no cause of action. I cannot agree. Long prior to the adoption of the 1960 Code of Practice and at the time of the Lasserre decision it was well established that a suit, such as this, need not be instituted in the name of the state. State ex rel. Dardenne v. Cole, 33 La.Ann. 1356 (1881); Davenport v. Sterling Lumber Co., 143 La. 671, 79 So. 215 (1918); State ex rel. Divens v. Johnson, 207 La. 23, 20 So.2d 412 (1944). There is no real substantive difference between LSA-C.C.P. Article 3781 et seq. and the source articles of the Code of Practice of 1870 or between LSA-R.S. 9:291 and its source, Article 105 of the Code of Practice.”

In non-habeas situations, this court has observed that the four exceptional instances listed by La. R.S. 9:321, which permit inter-spousal suits, are exclusive, not illustrative. Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975); Black v. Black, 288 So.2d 611 (La.1974). In the cited decisions, however, no issue concerned the non-applicability of in-terspousal immunity to habeas corpus suits, brought by a parent in the interest of the children and of the state. We did not intend to overrule or affect the long-settled interpretation, State ex rel. Lassere v. Michel, 105 La. 741, 30 So. 122 (1901), of the statute’s inapplicability to habeas suits under the present factual situation.

The court of appeal was therefore in error in dismissing this suit and in holding that the plaintiff wife is barred from instituting. this habeas corpus proceeding to obtain the custody of her children.

(2)

With regard to the merits, the evidence reflects that, had the custody issue arisen in a suit for separation, the best welfare of the children is served by leaving them in their mother’s custody. See Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971). The district court conceded this; but felt that, since no suit for separation had been filed, the paternal authority of the father should be recognized, Civil Code Article 216, absent some showing of abuse of this authority.

The trial court’s reasons are scholarly and persuasive. Nevertheless, we believe it fell into error. We agree with the dissenting views expressed in the court of appeal, 339 So.2d 961:

“There is no sound or cogent reason which would dictate that in matters of custody, where children of tender years are involved, the rules governing the award of custody should differ depending upon the legal status of the contesting parents. Such determination is clearly contrary to the sage reasoning announced in the early case of State ex rel. Lasserre v. Michel et al., supra, that neither husband or wife should be driven to the necessity of instituting an action of separation from bed and board or divorce in order to have the matter of legal custody of the children judicially inquired into. Such determination also clearly violates the cardinal rule predominant in all custody matters that the paramount consideration is always the welfare of the children.”

With regard to the present case, for instance, the welfare of these very young children is best served by continuing their custody in their mother, under jurisprudential guidelines consistently followed.

To require that, in order to obtain their custody, their mother must nevertheless file a suit for judicial separation is legally needless. State ex rel. Lasserre v. Michel, cited above. Further, in some cases, such a technical rule (founded on no sound functional reason) might bar a good mother from obtaining custody of her children, in their best interest, just because she is a poor wife. Our jurisprudence has long recognized that a good mother should not be deprived of the custody of her children, if in their interest, simply because she has been at fault in marital difficulties which cause the parents to separate.

For the reasons stated, therefore, we conclude that the plaintiff mother is entitled to custody of the two young children of the marriage.

Decree

Accordingly, we reverse the dismissal of the plaintiff’s suit. It is ordered, adjudged, and decreed that the plaintiff be granted the care, custody and control of the two minor children of the marriage upon finality of this decree; however, the case is remanded to the district court for it to fix visitation rights, if requested by the defendant husband, and for such other ancillary relief as the parties may be entitled to. All costs of these proceedings are taxed against the defendant.

REVERSED, CUSTODY AWARDED TO THE PLAINTIFF MOTHER, AND REMANDED FOR DETERMINATION OF VISITATION RIGHTS.

SANDERS, C. J., dissents with written reasons.

SUMMERS, J., dissents for the reasons assigned by the Chief Justice, and for additional reasons to be assigned.

MARCUS, J., dissents.

SANDERS, Chief Justice

(dissenting).

As the majority correctly notes, the issue here is whether during marriage a wife may sue her husband by habeas corpus petition for custody of their children when there is no pending suit for separation or divorce. The Court of Appeal held that she could not. On the authority of the explicit statute cited by the Court of Appeal, I would affirm.

In dismissing the suit, the Court of Appeal relied upon LSA-R.S. 9:291. That statute provides:

“As long as the marriage continues and the spouses are not separated judicially a married woman may not sue her husband except for:

(1) A separation of property;
(2) The restitution and enjoyment of
her paraphernal property;
(3) A separation from bed and board; or
(4) A divorce.”

The statute reflects the strong public policy against suits between husband and wife. If they are living together, the policy prevents the disruption of domestic tranquility. If they are separated, though not judicially, the policy encourages reconciliation. The legislative purpose is to promote family stability.

In Smith v. Southern Farm Bureau Casualty Ins. Co., 247 La. 695, 174 So.2d 122 (1965), we stated:

“The husband enjoys immunity from suit by the wife, except in certain instances not pertinent to the issue before us. LSA-R.S. 9:291. This immunity exists, commendably, to maintain domestic tranquility and promote the stability of the family unit.”

From the terms of the statute, it is apparent that the four exceptional instances in which interspousal suits are allowed are exclusive. The decisions have so held. Wilkinson v. Wilkinson, La., 323 So.2d 120 (1975); Black v. Black, La., 288 So.2d 611 (1974); Palmer v. Edwards, La.App., 156 So. 781 (1st Cir. 1934).

The present suit by the wife for the custody of the children does not fall within any of the four exceptions. Hence, under the terms of the statute, the suit is barred. As the Court of Appeal noted, the statute is explicit, and any expansion of the allowable suits addresses itself to the legislative branch.

The majority, however, relies upon the early decision of this Court in State ex rel. Lasserre v. Michel, 105 La. 741, 30 So. 122 (1901). In that case, the husband evoked a writ of habeas corpus to secure custody of children from his wife. Applying Article 791 of the former Louisiana Code of Practice (1870), this Court held that the proceeding was essentially an inquiry by the State, itself, and that it should be maintained despite recognition that the husband was without right to sue his wife. In 1960, the Louisiana Code of Civil Procedure eliminated the provision that a writ of habeas corpus issue in the name of the State. See LSA-C.C.P. Arts. 3781, 3821. Hence, because of the abandonment of the State-party concept, the decision is no longer authoritative.

The majority apparently adopts the view that there is “no real . . . difference” between Article 791 of the Louisiana Code of Practice (1870) and Articles 3781 et seq. of the Louisiana Code of Civil Procedure (1960). In my opinion, this view is erroneous. The change made is not that refuted in the majority opinion, that the suit no longer need be brought in the name of the State. No such requirement has been in our law for many years. Rather, the change made is that the writ of habeas corpus does not issue in the name of the State. See LSA-C.C.P. Form 1903, N. 3. Thus, any basis for suggesting that a habe-as corpus suit is a state inquiry has been eliminated. In any event, however, the decision in State v. Michel, supra, must yield to the statute barring interspousal suits.

A writ of habeas corpus issues only on petition. LSA-C.C.P. Art. 3781. It is an adversary proceeding, requiring a written answer. LSA-C.C.P. Art. 3783. In my opinion, the Court of Appeal correctly classified the litigation as a suit. Cf. LSA-C. C.P. Art. 421. Since the husband and wife are the only parties, it is a suit by the wife against her husband within the meaning of LSA-R.S. 9:291.

In my opinion, the wife has no right of action against her husband. LSA-C.C.P. Art. 927; Smith v. Southern Farm Bureau Casualty Ins. Co., supra; Dumas v. United States Fidelity and Guaranty Co., 241 La. 1096, 134 So.2d 45 (1961); 26 La.L.Rev. 415, fn. 7. I would dismiss the suit because of the absence of a right of action.

Although I do not reach the merits, the issue there may well be whether the father or the mother has the prevailing authority to determine the residence of the children. The evidence reflects that the father wants the children to reside in Louisiana. On the other hand, the mother wants them to reside in Georgia. The majority does not adequately treat this issue, rushing quickly to a determination of custody, as in a divorce action. In fact, Article 216 of the Louisiana Civil Code, dealing with parental authority, is relegated to a footnote.

For the reasons assigned, I respectfully dissent.

      . La. R.S. 9:291 provides:
      “As long as the marriage continues and the spouses are not separated judicially a .married woman may not sue her husband except for:
      (1) A separation of property;
      (2) The restitution and enjoyment of her paraphernal property;
      (3) A separation from bed and board; or
      (4) A divorce.
      This 1960 enactment accomplished the transfer to the revised statutes of substantively identical provisions of Article 105 of the Louisiana Code of Practice (1870), in connection with the repeal of that code and its replacement by the enactment of the Louisiana Code of Civil Procedure of 1960.

      . In terms, the statute prohibits suits only by a wife against a husband, not suits by him against his wife. However, the courts have effectuated the public policy reflected by the statute so as to apply by analogy corresponding restraints to a husband’s suit against the wife. See Dumas v. United States Fidelity & Guaranty Company, 241 La. 1096, 134 So.2d 45 (1961); Harvey v. Engler, 184 La. 858, 168 So. 81 (1936); Hawthorne v. Clark, 39 La.Ann. 678, 2 So. 561 (1887); Reich v. Reich, La.App., 23 So.2d 566 (Orl.1945).

      .See 105 La. 746-47, 30 So. 125:
      “The parents, in issues of this kind, are not simply urging their own legal rights, but are acting for and on behalf of the child * * *. It is true that the ultimate action of the court upon the writ may be in aid and in enforcement of private rights, — of the rights of the husband or of the wife in the premises, — but the result is incidental and consequential. The writ of habeas corpus is essentially a writ of inquiry, and upon matters in which the state itself is concerned, in aid of right and liberty. * * ”

      . Civil Code Article 216 provides:
      “A child remains under the authority of his father and mother until his majority or emancipation.
      “In case of difference between the parents, the authority of the father prevails.”

      . The present record was of evidence limited solely to the issue of custody. Assuming for the moment that it also represents the evidence to be produced in a suit for separation, it shows that the husband is free from fault, so therefore the wife cannot sue him for separation. On the other hand, if only because the wife has refused to accept her husband’s marital authority to choose the domicile, Civil Code Article 120, the wife is at fault in refusing to give up her employment and to follow her husband back to Louisiana on his latest shift of occupation.
      The wife herself has no grounds for a judicial separation. If the husband does not desire to sue for separation, the husband could effectively prevent the custody of the children being given to the mother (on the trial court’s theory of paternal authority), even though the mother’s custody is in the best interest of the children.
      The contrary interpretation we reach, thus, avoids any issue of unconstitutional discrimination against the wife if we had recognized the husband-father’s automatic supremacy over the wife-mother in custody matters solely because of his unilateral exercise of marital and paternal supremacy.

      . Article 791 of the Louisiana Code of Practice (1870) provided in pertinent part:
      “The habeas corpus is an order in writing, issued in the name of the State by a judge of competent jurisdiction . . . ” (Emphasis supplied.)


author: TATE, Justice.

text:
    STATE of Louisiana, Appellant, v. Mark Lawrence NICKELS, Appellee.
    No. 59265.
    Supreme Court of Louisiana.
    July 1, 1977.
    C. Vernon Richie, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., William L. Goode, Asst. Dist. Atty., for appellee.
   TATE, Justice.

The defendant was convicted of simple burglary, La.R.S. 14:62, and sentenced as a second offender, La.R.S. 15:529.1, to ten years’ imprisonment at hard labor. On appeal, his three assignments of error all relate to the introduction into evidence of four bicentennial coins and a Kennedy half-dollar allegedly stolen during the burglary.

The defendant contends that these coins were seized from his person by virtue of a warrantless search in violation of his constitutional rights.

The accused was apprehended by a son of the householder in the immediate vicinity of the burglary. Without recounting the evidence, the circumstances suggested probable cause that he had committed the burglary-

A police officer drove up and arrested the accused, advising him of his Miranda rights. Shortly afterwards, another officer searched the accused’s person and found the coins.

The evidence indicates that the custodial arrest of the defendant was made upon probable cause and that the arrest was not a pretext to justify the search. Under these circumstances, the full search of the accused’s person is authorized without a warrant. See State v. Breaux, 329 So.2d 696 (La.1976); also Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973).

The accused contends that the search was illegal because, in a showing outside the presence of the jury, the state indicated that the first police officer made the initial custodial arrest of the accused on the basis of an earlier theft charge. The accused lived across the street from the burglarized home, and the policeman happened to arrive as the son returned him to the scene.

The defendant contends that the search by the second officer was improper, since the accused was held under custodial arrest because of the theft, not the burglary charge.

Shortly after the initial arrest, the other police officer arrived, pursuant to the burglarized householder’s complaint. (The evidence indicates that he had probable cause to arrest the accused for the burglary charge also, at the time he made the search. The police did not, however, formally re-arrest the accused.)

We find no merit to the defendant’s contention. The police officers had the continued right to search the person of the accused, he being under lawful custodial arrest, upon their receiving further information which indicated that evidence was concealed on his person which they had overlooked on their initial patdown.

Since we find no merit to the contention that the search was illegal, we need not discuss certain ancillary contentions made by the accused, nor the state’s contention that the objection to the allegedly unconstitutional search was not properly asserted by a motion to suppress filed before or during the trial.

Decree

For the reasons stated, we affirm the conviction and sentence.

AFFIRMED.

SUMMERS, J., concurs in the result.


author: PER CURIAM.

text:
    STATE of Louisiana v. John Henry WELLS, Jr.
    No. 59275.
    Supreme Court of Louisiana.
    July 1, 1977.

      Frank J. Gremillion, Hynes & Gremillion, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Lennie Perez, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

The defendant was convicted of armed robbery, La.R.S. 14:64, and sentenced to fifty years imprisonment at hard labor. He relies on one assignment of error in this appeal. Finding no error of law in the trial court ruling complained of, we affirm.

Defendant contends that the trial court erred in denying a motion to suppress his oral confession. The police officers testified that Wells orally confessed to the crime freely and voluntarily, without coercion or inducement, after being given Miranda warnings. The defendant’s testimony essentially agreed with the officers’ version of the interrogation except that he contended the police threatened to charge his cousin as an accessory if he did not confess. The law enforcement officers steadfastly denied the defendant’s allegation and testified that his cousin was brought to the stationhouse for questioning only after defendant confessed.

We find no error in the trial court’s accepting as credible the testimony of the police officers. A trial judge’s evaluation of a witness’ credibility is entitled to great weight and will not be disturbed on review unless clearly erroneous. State v. Schamburge, 344 So.2d 997 (La.1977); State v. McSpaddin, 341 So.2d 868 (La.1977); State v. Simmons, 340 So.2d 1357 (La.1976); State v. Hills, 337 So.2d 1155 (La.1976).

Accordingly, we affirm the conviction and sentence.