author:
      BOUTALL, Justice Ad Hoc.
     LEMMON, Justice,

text:
    STATE of Louisiana v. Joseph N. SHERER.
    No. 81-KA-1462.
    Supreme Court of Louisiana.
    March 1, 1982.
    Rehearing Denied April 16, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Sturgeon, Dist. Atty., Glenn Gremillion, Ronald J. Kil-garlin, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Philip A. LeTard, Vidalia, for defendant-appellant.
   BOUTALL, Justice Ad Hoc.

Joseph N. Sherer was convicted and sentenced on two counts of the crime of negligent homicide, .LRS 14:32. Subsequently, he was charged and sentenced under the Habitual Offender Law, LRS 15:529.1. He appeals both his conviction and sentence.

The record shows that in the early morning hours of June 16, 1976, Joseph N. Sherer was driving his truck on Highway 84 near Ferriday, Louisiana, when he crossed the center line of the highway and crashed headon into a vehicle being driven in the opposite direction by Mrs. Eloise Killings-worth. Both Mrs. Killingsworth and her passenger, Wanda Sue Burnham, were killed in the accident. Sherer was subsequently charged with two counts of negligent homicide and convicted by a six-man jury. His convictions were affirmed by this court, State v. Sherer, 354 So.2d 1038 (La.1978). While serving his term of imprisonment, Sherer applied for and received a new trial on the basis of the holding in Brown v. Louisiana, 447 U.S. 323, 100 S.Ct. 2214, 65 L.Ed.2d 159 (1980). In that case, the United States Supreme Court retroactively applied the holding in Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979), which held that a five to one verdict convicting a defendant of a non-petty offense violated the constitutional guarantee of jury trial. The new trial was held in December, 1980, and ended with a unanimous jury verdict on both counts of negligent homicide. The trial judge sentenced Sherer to serve five years at hard labor on each count, the sentences to run consecutively. The state then filed a bill of information charging Sherer as an habitual offender with two prior felony convictions. The judge then pronounced sentence on the habitual offender bill ordering Sherer’s confinement for five additional years on each count to run consecutively with each of the other two sentences, making a total of twenty consecutive years. Sherer has appealed asserting nine assignments of error.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial court erred in failing to suppress the results of the blood alcohol test pursuant to his motion to suppress. He contends that the requirements of LRS 32:661 were not met in that he was not under arrest at the time of the test, that he had not consented to the test, and that being in Mississippi at the time, the Louisiana State Trooper had no authority to order the taking of the blood, and that the blood sample was not properly handled.

A similar contention was made in the appeal from the defendant’s first trial, Stale v. Sherer, 354 So.2d 1038 (La.1978). We perceive nothing in the record before us which would change the basic facts and legal principles enunciated in that decision. We reiterate that the facts show that the defendant was arrested within the scope of the statute, that he was rendered unconscious at the time of the accident and remained unconscious at the hospital, a condition rendering him incapable of refusal to submit to the blood test and accordingly not having withdrawn the implied consent statutorily provided in LRS 32:661(B). It would be a miscarriage of justice indeed, if the act of mercy in having the injured defendant brought to a nearby hospital in Mississippi in an effort to preserve his life could be the basis for suppressing the evidence of the blood test. The evidence shows the blood sample was taken in accordance with Louisiana procedures and the motion to suppress was properly refused. Although the prior Sherer case was not on a motion to suppress, the same principles apply. We find no error in this assignment.

ASSIGNMENT OF ERROR NO. 2

Defendant asserts that the trial court erred in failing to grant his motion to quash the indictment based on the unconstitutionality of the Louisiana Negligent Homicide Statute, LRS 14:32. He contends that he has been denied his Fourteenth Amendment right to due process of law because the statute creates an unconstitutional criminal presumption that the violation of a statute or ordinance causes him to be presumed criminally negligent, thus allowing the state to secure a conviction without proving every element of the crime beyond a reasonable doubt as required under the principles announced by the United States Supreme Court in the case of In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

The pertinent part of LRS 14:32 provides:

“Negligent homicide is the killing of a human being by criminal negligence.
The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.”

Defendant refers us to the decision of the United States District Court, Western District of Louisiana, in the case entitled Hammontree v. Phelps, 462 F.Supp. 366 (W.D.La.1978), and urges that we should adopt the opinion of the trial judge holding that this provision violated due process because it created an unconstitutional presumption that violation of a statute constitutes criminal negligence. However, we point out that that decision has been reversed on appeal in the case of Hammontree v. Phelps, 605 F.2d 1371 (U.S.App. 5th Cir. 1979). The Louisiana Supreme Court had previously rendered a decision, State v. Hammontree, 363 So.2d 1364 (La.1978), in which this court clarified the construction to be placed on the statute. We quote at page 1372:

“The better interpretation of ‘presumptive evidence’ in R.S. 14:32 is that it creates no legal presumption, but means that the violation of a statute related to the cause of the accident will justify the inference that defendant committed a criminally negligent act. To constitute ‘criminal negligence,’ the offender’s conduct must be a gross deviation below the standard expected of a reasonably careful man. R.S. 14:12. Reasonably careful men are expected to obey safety laws, and it is within the province of the legislature to permit the inference that one who violates a safety law and thereby injures another is guilty of criminal negligence; and if it is proved beyond a reasonable doubt that the criminal negligence was the cause of death, the perpetrator may be guilty of criminal homicide.”

Relying upon this definition, the Fifth Circuit concluded that the statute did not shift any constitutional burden from the prosecution to the defendant and reverse the finding of unconstitutionality of the District Court. Similarly, we believe our interpretation of presumptive evidence contained in Hammontree is constitutionally correct and reiterate it in this case. Accordingly, we find that LRS 14:32 is not in violation of either the Louisiana or United States constitution.

In the alternative under this assignment of error, defendant argues that the manner in which the state was allowed to introduce evidence concerning levels of intoxication denied him his Fourteenth Amendment right to due process of law. The defendant argues that the state was allowed to show that a person with a .27% of alcohol in his blood was far above the percentage needed for a conviction of driving while intoxicated, and reasons that this led to a presumption by the jury that the defendant must be guilty of criminal negligence, a fact which was not proved beyond a reasonable doubt.

The state presented experts to testify that the defendant’s blood did contain .27% by weight of alcohol, and that a person would be unable to operate machinery when the alcohol in his blood was much lower. Additionally, the state introduced testimony of the eye witnesses to the accident as well as the investigating officer and others, all of which tended to establish that the defendant was clearly guilty of criminal negligence. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

This assignment is directed to a state trooper being allowed to testify how the accident occurred, the trooper not having been presented as a reconstruction of accident expert and not having first hand knowledge of how the accident occurred.

The state examined the trooper, Johnny Blunschi, and established his qualifications as an expert witness; however, he was not formally tendered nor accepted as an expert in accident reconstruction. The evidence showed that Trooper Blunschi had been employed for nine years by the Louisiana State Police. He had completed the State Police Training Academy and received a certificate in Traffic Police Administration from Northwestern University in Chicago. Since 1972, he had been instructing accident investigation and reconstruction at the State Police Academy in Baton Rouge. Before becoming a member of the State Police, he had obtained the equivalent of an associate degree in law enforcement from Memphis State University. Prior to this trial, he had testified on two occasions as an expert in accident reconstruction, and had testified on numerous occasions as a factual witness.

During the trooper’s examination, the defense did not object until the State- asked the witness how the vehicle involved in the accident could have gotten into a certain position. When defense counsel objected on the basis that the witness was not qualified to answer the question, the court overruled the objection.

The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert, his competency must have been established to the satisfaction of the court, LRS 15:466. This court has consistently held that the competence of an expert witness is a question of fact to be determined within the sound discretion of the trial judge. His rulings on the qualifications of expert witnesses will not be disturbed in the absence of manifest error. State v. Walker, 394 So.2d 1181 (La.1981); State v. Drew, 360 So.2d 500 (La.1978); State v. Lewis, 353 So.2d 703 (La.1977). The record discloses that the officer possessed sufficient education and practical experience as an expert in accident reconstruction. Moreover, he had previously qualified as an expert in accident reconstruction in the District Courts of this state. Although the trial judge did not formally accept the officer as an expert, it appears by his rulings that he considered him as such. It does not appear that he abused his discretion in doing so.

We find no error in this assignment.

ASSIGNMENT OF ERROR NO. 4

This assignment is based on the court’s refusal to grant defendant’s motion for a mistrial based on the fact that the defense requested that all of the witnesses be warned against making any statements concerning a prior trial. The arresting officer, Trooper Farris, on cross-examination stated that he had testified in the previous trial. It is contended that this statement was not responsive to the question asked and it was prejudicial. We hold that it was responsive and not prejudicial.

The question and answer came about in a sequence of questions in which defense counsel was asking the trooper about the handling of the blood sample. Trooper Far-ris had testified that Trooper Blunschi had picked up the sample the day before or the day that he left for Baton Rouge whereupon the following exchange took place:

“Q: Would it be safe to say that it was two or three days after the accident?
A: I really couldn’t tell you exactly how far . . . how long it was.
Q: Have you ever .. . have you ever made the statement under oath concerning these events? Have you ever done that before in this accident?
A: Yes. In a previous trial on it.
Q: —Your Honor, could we remove the jury?”

The defense then moved for a mistrial which the court overruled on the basis that it was a solicited remark on the part of defense counsel. We agree. We further note that the defendant did not request an admonition to the jury and now cannot complain of any prejudice resulting from its omission. See State v. Baldwin, 388 So.2d 664 (La.1980).

We find no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 5

This assignment if based on failure to exclude Dr. Metcalf’s testimony referring to the odor of alcohol in the fluid extracted from the defendant’s stomach shortly after the accident.

Dr. Metcalf was the defendant’s attending physician when he was brought to the hospital in Mississippi, and testified at the first trial of this defendant, but died prior to this second trial. At this trial, the defendant did not object to the introduction of the transcript of Dr. Metcalf’s testimony from the first trial but he did object to a portion of the testimony which involved the odor of the fluid taken from defendant’s stomach. Defendant argues that no foundation was laid concerning the doctor’s ability to make a proper determination as to the “strong odor of alcohol” in the fluid, contending that the remark was highly prejudicial and should not have been introduced to the jury because he could not cross examine Dr. Metcalf at the second trial.

We point out that there was no objection to this testimony at the first trial and that Dr. Metcalf had been qualified as an expert in the field of medicine. Thereafter, the following took place:

“Q: When you put this tube in the stomach, did you draw any fluid out of the stomach?
A: Yes, it was pretty strong.
Q: Pretty strong, how do you mean pretty strong?
A: It had an odor of alcohol.”

Certainly the physician could testify as to what the odor he perceived smelled like, and we see no reason why this testimony should be declared inadmissable. We find no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 6

This assignment of error is based upon the court allowing evidence to be submitted concerning an incident which occurred approximately half a mile from the Frogmore Gin, the area of the accident. It is contended that the evidence is irrelevant and too remote to have evidentiary value.

The objected to testimony is that of Glenn Green, Jr., who testified that he was driving the highway in question and noticed a two-tone green truck with a diamond-cut type camper shell weaving on the highway heading in the direction of Ferriday, Louisiana. The vehicle sometimes wandered into the left lane, and in one instance forced a large truck to pull onto the shoulder of the road. It also ran off the right side of the road into a ditch hitting a traffic sign. This incident occurred approximately a half of a mile from the area of the accident shortly before the accident happened. Green passed the vehicle and proceeded to his destination and as he was returning home, he noticed the accident in question. Green testified that he recognized the green truck as the one that he had seen a short time before on the same highway.

To bolster this testimony, the state introduced the testimony of Jerome Harrison, an expert in the field of paint comparisons, who compared the paint on a piece of metal off the defendant’s truck with paint scrapings taken from the highway sign that he allegedly struck. His analysis found both paints to be microscopically and chemically similar. However, he admitted that he could not say that the samples of paint were identical.

We are of the opinion that the evidence elicited was sufficiently related to the crime charged to allow the judge to permit it into evidence. Obviously, the evidence standing by itself is not conclusive, but there is sufficient probative value to permit the jury to consider it in its determination of the guilt or innocence of the accused. We point out that this, of course, was not the sole evidence upon which the state’s case was based. The state produced eye witnesses as well as expert testimony demonstrating overwhelming evidence of the defendant’s guilt.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 7

This assignment of error concerns the Assistant District Attorney’s statement that drunkenness was gross negligence and that this gross negligence resulted in the deaths of Mrs. Eloise Killingsworth and Wanda Sue Burnham. The defendant contends that this statement is misleading in that it leads the jury to believe that once intoxication is proved, then this fact must lead to the conclusion that the deaths were caused by this gross negligence.

During his closing argument, the prosecutor made the following statement:

“We proved that Joe Sherer was drunk.... Drunkeness in this case .. . his drunkenness was gross negligence. A gross deviation below the standard of care practiced by reasonable people. And that gross negligence resulted in the death of Mrs. Eloise Killingsworth and Wanda Sue Burnham. That was proved.”

This statement was made in the context that the prosecutor was informing the jury of what he believed the state had proved in the case. The defendant did not object to the prosecutor’s statement at the trial; therefore, he cannot argue that impropriety for the first time on appeal. State v. Hicks, 395 So.2d 790, 797 (La.1981); La.C.Cr.P. Art. 841. The facts of this case do not present a case where a prosecutor’s prejudicial comments in closing argument may be considered to violate Federal due process even in the absence of a defense challenge or objection at trial. The prosecutor was merely stating the evidence and argument as to what that evidence proved. The trial judge later read the jury the law on criminal negligence and explained it to them. Even if there may have been some confusion in the minds of the jury, the trial judge more than adequately explained the law in his instructions.

We find no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 8

This assignment of error is based upon the judge’s sentencing of the defendant to a twenty year term by his treatment of two counts of negligent homicide as separate acts as the basis for increasing his sentence as an habitual offender.

At the sentencing hearing, the judge sentenced Sherer to “be confined to the Department of Corrections for service at hard labor for five years on each count, to run consecutively.” The District Attorney then filed a bill of information charging Sherer as a multiple offender with two prior felonies under the provisions of the Habitual Offender Law, LRS 15:529.1. After being assured that the defendant understood his rights, the judge stated:

“The sentence of the Court on the multiple bill is to be confined to the Department of Corrections for service of five years on each count to run consecutive ... to run consecutively with each of the other two sentences, making a total of 20 consecutive years.”

Thereupon the judge signed a judgment sentencing Sherer “to serve a term of imprisonment at hard labor in the Louisiana Department of Corrections for a period of TWENTY (20) years.”

We conclude there is error in this sentence. The effect of the sentencing procedure followed by the trial judge was to impose upon the defendant the maximum sentence of five years on each count of the negligent homicide conviction and then add to each count an additional five years under the Habitual Offender Law, thus giving twice the longest possible sentence, ten years on each count. LRS 15:529.1(D) does not permit the sentence to be imposed in that fashion. We quote in pertinent part:

“If the judge finds that he has been convicted of a prior felony or felonies, or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he had been convicted, the court shall sentence him to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed, deducting from the new sentence the time actually served under the sentence so vacated.”

Accordingly, the judge should have vacated the sentence already imposed on the conviction and sentenced the defendant only under the habitual offender bill.

The sentence imposed is in further error because the judge sentenced the defendant as an habitual offender on each of the two counts. In State v. Schamburge, 344 So.2d 997 (La.1977), and in State ex rel. James Henry Jackson v. Henderson, 283 So.2d 210 (La.1973), this court held that convictions on more than one count entered on the same date should be treated as one conviction for applying the habitual offender statute. In State v. Chapman, 367 So.2d 808 (La.1979), we approved the action of the trial judge who refused to consider both counts of a two-count indictment as requiring the defendant be adjudged a triple offender, and instead used only the first count in adjudging the defendant as a second offender and sentenced as such. At the same time he sentenced the defendant on the conviction of the other count of the crime charged. By sentencing in that manner, the trial judge applied properly the principle that more than one count entered on the same day should be treated as one conviction. Similarly, in the present case, the application of that principle requires that only one of the two counts of this conviction could be used in the sentencing of the defendant under a habitual offender bill. The habitual offender bill on the other count should have been rejected and the defendant’s sentence on the conviction of the other count of negligent homicide could be imposed.

Because the habitual offender bill does not set out with clarity which count of the negligent homicide charge constitutes which count of the habitual offender bill, we are unable to affirm one count and reverse the other. We must set aside the adjudgment and the sentence on each count and remand this matter to the trial court for further proceedings in accordance with the views expressed above.

ASSIGNMENT OF ERROR NO. 9

By this assignment of error the defendant asserts that the record fails to prove each element of the crime beyond a reasonable doubt, apparently referring us to State v. Williams, 354 So.2d 152 (La.1977). In short, he argues that no one testified that any act by the defendant caused the accident.

Most of the defendant’s argument is addressed to the proof of a particular fact, not to proof of an element of the crime. As we pointed out in Williams, our criminal appellate jurisdiction does not extend to questions of fact, only to questions of law. Nevertheless his assignment of error is fundamentally based on the allegation that the state failed to present any evidence of any essential element of the crime charged and we are bound to review the record. See State v. Fontana, 396 So.2d 1251 (La.1981). In Fontana this court reiterated its adoption of the standard of review set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Under that standard or any other of similar view, the evidence is overwhelming as to defendant’s criminal negligence. This was demonstrated by the evidence of eye witnesses, the investigating officers, expert evidence and physical facts, a considerable portion of which we have referred to in other assignments of error. This defendant clearly drove his vehicle across the highway into the traffic lane at a high rate of speed, crashing head-on into a vehicle approaching in that lane. Additionally, his blood contained an amount of alcohol far beyond the limit at which expert testimony showed machinery could not be operated.

This assignment has no merit.

DECREE

For the reasons assigned, the convictions and sentences on the two counts of negligent homicide are affirmed;

The adjudgments and sentences on the two habitual offender counts are vacated and set aside and we remand the proceedings under LRS 15:529.1 to the trial court for such further proceedings as may be instituted in accordance with law and consistent with the principles expressed herein.

AFFIRMED IN PART; VACATED, SET ASIDE AND REMANDED IN PART.

LEMMON, Justice,

concurring in denial of defendant’s application for rehearing.

The second paragraph of R.S. 14:32 contains a presumption which unconstitutionally shifts the burden of proof to defendant to prove his innocence of criminal negligence. See my concurring opinion in State v. Lollar, 389 So.2d 1315 (La.1980), which interpreted an identical provision in R.S. 14:39.

In this case, however, the trial judge did not include the second paragraph of R.S. 14:32 in his instructions to the jury, and the unconstitutional presumption in the statute therefore did not prejudice this defendant.

      . Judges John C. Boutall of the Court of Appeal, Fourth Circuit, and O. E. Price and Fred W. Jones, Jr., of the Court of Appeal, Second Circuit, participating in this decision as Associate Judges Ad Hoc, joined by Justices Caloge-ro, Marcus, Dennis and Watson.


source: Caselaw Access Project

author: PRICE, Justice Ad Hoc . BOUT ALL, Justice Ad Hoc,

license: Public Domain

text:
    STATE of Louisiana v. Elton HARGRAVE, Jr.
    No. 81-KA-1599.
    Supreme Court of Louisiana.
    March 1, 1982.
    Rehearing Denied April 16, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., W. Gregory Ar-nette, Jr., Dist. Atty., Abbott J. Reeves, James Stainback, Asst. Dist. Attys., for plaintiff-appellee.
    Kenneth E. Badon, Gerald J. Casey, Lake Charles, for defendant-appellant.
   PRICE, Justice Ad Hoc .

Defendant, Elton G. Hargrave, Jr., was indicted by the Jefferson Davis Parish grand jury of negligent homicide (La.R.S. 14:32). He waived his right to a jury trial and was found guilty as charged. The trial court sentenced him to three years at hard labor, but suspended the sentence and placed defendant on supervised probation for a period of three years. In addition the defendant’s driver’s license was suspended for one year. Defendant appeals relying on four assignments of error.

On the evening of December 30,1980, the eighteen-year-old defendant picked up his girl friend, Joy Ryder, at about 6:30 p. m. After purchasing a couple of cartons of beer they visited a local gathering place for young people and socialized for an extended period of time. Defendant and his girl friend drank most of the beer. Later in the evening, two other youths decided to go to the outskirts of town to drag race their pick-up trucks. Defendant and his girl friend then decided to follow to watch the race. They were following a truck occupied by Stephen Benoit and Dwain Manuel on Louisiana Highway 26 (speed limit 55 m. p. h.) at a distance of some four car lengths. As the vehicles approached the intersection of Highway 26 and Highway 380, defendant’s vehicle struck a pedestrian, Vernon Earl Jones, killing him instantly. Jones was walking with northbound traffic on the right-hand side of the road. He was wearing dark clothing. An autopsy disclosed he had a blood alcohol content of .152 milligrams.

After determining that Jones was dead, defendant drove to the police station to report the accident.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial court erred in allowing into evidence an inculpa-tory statement made by defendant in the presence of Benoit since defense counsel did not receive notice of such statement prior to trial as required by La.C.Cr.P. Art. 768. A review of Benoit’s testimony reflects that he never repeated any statements made by the defendant to him that night. Benoit gave his opinion of defendant’s physical condition regarding intoxication; however, no oral inculpatory statements were ever introduced. This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

By these assignments of error defendant contends the trial court erred in admitting into evidence a constitutional rights waiver form relating to a chemical test for intoxication, and the results of the blood alcohol test that was performed subsequent to an uncounselled waiver of constitutional rights.

After arriving at the police station, defendant was taken to the hospital for a P.E.I. test. Prior to his taking the test, defendant was asked by Detective Ervin Trahan to sign a constitutional rights waiver form as required by La.R.S. 32:661(C). The form had three pertinent parts: (A) the effect of refusal; (B) options for additional testing; (C) Miranda rights. Trahan complied with the statute by reading to defendant Part A regarding the effects of refusal under 661. Defendant then signed the form.

Defendant now contends that his Miranda rights also should have been read to him since he was treated as if he were under arrest. Alternatively, if he was not under arrest, then the results of the test should not be admissible as he was improperly advised he must submit to the test or lose his driver’s license since the sanctions imposed for refusing to take the test apply only to arrested persons. La.R.S. 32:661(A) provides:

Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given his consent, subject to the provisions of R.S. 32:662, to a chemical test or tests of his blood, breath, urine, or other bodily substances for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while believed to be under the influence of alcoholic beverages.

La.C.Cr.P. 201 provides:

Arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.

This court has held that the definition of arrest is keyed to the concept of restraint. The circumstances indicating an intent to effect a restraint on the liberty of an accused, rather than the precise timing of the words “you are under arrest,” determine when an arrest has been made. State v. Morvant, 384 So.2d 765 (La.1980); State v. Tomasetti, 381 So.2d 420 (La.1980). In the instant case defendant voluntarily entered the police station and admitted hitting a man with his car. He remained there until his parents arrived and was then transported to the hospital for the P.E.I. test. At no time was the defendant told he was free to leave. Trahan’s explanation to the defendant of the possible sanctions that would be imposed if he refused to take the test indicated that the defendant was being treated as an arrested person under La.R.S. 32:661(A). In addition the first sentence contained in the form signed by defendant contained the phrase “you are under arrest.” Under the circumstances of this case, we believe that the intent of Detective Trahan to restrain the defendant was sufficient to constitute his arrest.

Nevertheless, the failure of the officer to read the Miranda rights portion of the waiver form to defendant does not infringe upon a constitutionally protected right of defendant under these circumstances. The jurisprudence holds that Fifth Amendment privilege against self-incrimination applies only to evidence of a testimonial or communicative nature. The compulsory extraction of a blood sample for an intoxication test infringes no constitutional rights. Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1965); Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957); State v. Dugas, 252 La. 345, 211 So.2d 285 (1968), cert. denied 393 U.S. 1048, 89 S.Ct. 679, 21 L.Ed.2d 691. Since Detective Trahan complied with the procedures outlined in La. R.S. 32:661(C), there was no statutory or constitutional bar to the admission of the results of defendant’s blood test. These assignments lack merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial court erred in denying his motion for directed verdict of acquittal since the state failed to prove that the defendant was guilty of negligent homicide because there was no proof beyond a reasonable doubt of criminal negligence.

La.C.Cr.P. Art. 778 governs the motion for acquittal. It provides:

In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of defendant’s, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.
If the court denies a defendant’s motion for a judgment of acquittal at the close of the state’s case, the defendant may offer its evidence in defense.

The denial of such a motion may be reversed on appeal only if there is no evidence of the crime or an essential element thereof or where the denial is a palpable abuse of discretion. State v. Vaughn, 378 So.2d 905 (La.1979).

La.R.S. 14:32 provides in pertinent part:

Negligent homicide is the killing of a human being by criminal negligence.
The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.

La.R.S. 14:12 defines criminal negligence as:

Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under the circumstances.

The reporter’s comment to this section states: “Criminal negligence, in fact, corresponds to the concept of ‘gross negligence’ in tort law. See Restatement of the Law of Torts (1934) §§ 282 to 284, 500.

Section 500 provides:

The actor’s conduct is in reckless disregard of the safety of another if he intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize an unreasonable risk of bodily harm to the other, but also involves a high degree of probability that substantial harm will result to him.

It is clear that evidence which tends to support a finding of ordinary negligence is not sufficient to constitute a proof of criminal negligence. State v. Jones, 298 So.2d 774 (La.1974).

Viewing the evidence in light of the foregoing principles, we find that the trial court clearly abused its discretion in denying the motion for acquittal.

The state argues that the cumulative evidence of defendant’s intoxicated condition, his speeding, and his driving on the shoulder of the road when he hit the victim is sufficient to constitute criminal negligence.

However, the results of the defendant’s P.E.I. test show that his blood alcohol level was only .10, the minimum level for the statutory presumption of intoxication, about two hours after the accident. The evidence is conflicting on the amount of beer defendant had consumed over a five-hour period. Defendant estimates he drank five or six and his girl friend believed he might have consumed slightly more.

The state called as witnesses three of defendant’s acquaintances who had seen him earlier that evening. They testified that although his laughing and humorous mood indicated to them that he had been drinking to some extent, there was no appearance of any impairment of physical coordination or speech incoherence. The police officers who interviewed the defendant at the police station when he reported the accident testified that his appearance and demeanor at that time did not indicate to them defendant was intoxicated to such an extent that a P.E.I. test would have been administered. The reason for subjecting defendant to such a test was the policy of the department to require the test in all accident cases involving a homicide.

The state relied on the testimony of an accident reconstruction expert, a member of the state police, in an attempt to estimate the speed of the defendant’s vehicle at the time of impact. After conducting a series of tests approximately three months after the accident, the expert estimated his speed to be 70 m.p.h. The defendant estimated his speed at the time of impact to be 55 m.p.h., while Ms. Ryder testified they were traveling approximately 35 to 40 m.p.h. The trooper who conducted the test admitted his conclusion was only an estimate, and that many variables are involved in such calculations.

To substantiate their contention that the defendant was traveling on the shoulder of the road prior to the accident, the state introduced photographs of skid marks from the defendant’s vehicle which began and ended on the shoulder of the road. Also the state contends that the location of the victim’s hat on the shoulder indicates that he was struck while walking on the shoulder.

The defendant testified that when he first observed the victim, the victim was walking away from him on the highway near the shoulder. To avoid the impact, he swerved to the right, but was unable to avoid striking the victim. He then left the highway and applied his brakes while on the shoulder of the road. Ms. Ryder testified that immediately prior to the impact, the victim was walking on the highway near the shoulder. Dwain Manual, the passenger in the Benoit vehicle, testified that when he heard the sound of squealing brakes, he turned around and saw that defendant’s car was partly on the highway.

The state is not required to prove beyond a reasonable doubt each of the three instances of negligence it relied upon to establish criminal negligence. However, this evidence, when taken as a whole, must be sufficient to prove beyond a reasonable doubt the charged offense.

The overall evidence in this instance does not prove beyond a reasonable doubt criminal negligence on the part of defendant. The evidence to support the state’s contention that defendant was driving at a high rate of speed on the shoulder of the highway is entirely circumstantial. The evidence of intoxication is minimal. These factors when considered along with the fact that the victim was intoxicated, was walking with traffic in contravention of La.R.S. 32:216{B), was wearing dark clothing, and had been seen weaving on and off the roadway prior to the accident by other motorists preclude any reasonable finding of criminal negligence.

While the state may have produced sufficient circumstantial evidence to constitute a preponderance in a civil case, it is not sufficient to support a conviction of negligent homicide.

For the reasons assigned, defendant’s conviction and sentence are reversed and defendant is ordered discharged.

MARCUS and WATSON, JJ., dissent.

BOUTALL, J. ad hoc, dissents with reasons.

BOUT ALL, Justice Ad Hoc,

dissents.

I dissent from the reversal of conviction. Our constitution, Art. 5 § 5(C), provides that our appellate jurisdiction extends only to questions of law. This opinion goes beyond the principles expressed in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      Judges O. E. Price of the Court of Appeals, Second Circuit, John C. Boutall, Court of Appeal, Fourth Circuit, and Fred W. Jones, Jr., Court of Appeal, Second Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr., James L. Dennis, and Jack C. Watson.

      . La.R.S. 32:661(C):
      C. When a law enforcement officer requests that a person submit to a chemical test as provided for above, he shall first inform the person of the consequences of a refusal. In addition, the law enforcement officer shall have the person sign a standard form advising such person of the consequences of his refusal to submit to a chemical test, provided however that a single combination of the two forms may be used. If the person is unable or unwilling to sign the form, the law enforcement officer shall certify that such person was informed of his constitutional rights and was unable or unwilling to sign said form. If the above procedure is not complied with, the results of the test or any reference to it is inadmissible into evidence in any criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of alcoholic beverages.


author: CALOGERO, Justice. MARCUS, Justice LEMMON, Justice,

text:
    William C. MOCK v. Lashawanda Marie MOCK, Minor Child of Anna Washington Mock.
    No. 81-C-2146.
    Supreme Court of Louisiana.
    March 1, 1982.
    Rehearing Denied April 5, 1982.
    Dissenting Opinion April 14, 1982.
    Neil S. Hyman, of Steiner & Hyman, New Orleans, for defendant-applicant.
    Bradford H. Walker, New Orleans, for plaintiff-respondent.
   CALOGERO, Justice.

In this action for disavowal of paternity we consider, for the first time, the effect of the 1976 amendments to the paternity articles upon the husband’s burden of proof in overcoming the presumption of paternity, and the permissible evidence which may be used to meet that burden. La.C.C. arts. 184-190.

William C. Mock, plaintiff, was married to Anna Mock on October 25, 1969. The couple lived together as man and wife until sometime in 1974. At that time the couple ceased living together and have not lived together since. There has been no legal separation from bed and board or divorce. The couple is still legally married.

On May 12, 1978, Anna Mock gave birth to a female child, Lashawanda Marie Mock. On July 7, 1978, William Mock filed a petition to disavow paternity, contending that he is not the biological father of the child. A curator ad hoc was appointed to represent the interest of Lashawanda Marie Mock.

At trial on the merits, at which the only evidence introduced was the contradictory testimony of William Mock and Anna Mock and their respective witnesses, the trial judge rendered judgment in favor of William Mock, finding that he was not the child’s father. The Court of Appeal, 400 So.2d 248, affirmed the trial court judgment.

We granted writs to determine whether the Legislature, in amending La.C.C. art. 187 so as to allow a husband to disavow paternity “if he proves by a preponderance of the evidence any facts which reasonably indicate that he is not the father”, intended to allow the husband to succeed in his disavowal action with virtually no evidence other than his own testimony that he did not have sexual intercourse with the mother of the child at the probable time of conception.

Arriving at a determination as to what the Legislature intended the husband’s burden of proof to be in overcoming the paternity presumption under the 1976 amendments to the paternity articles is no easy task. The Courts of Appeal which have addressed this question have expressed opposite views, and not without plausible reasons in support of their respective positions. Migues v. Migues, 398 So.2d 1279 (La.App. 4th Cir. 1981); Oge a v. Ogea, 378 So.2d 984 La.App. 3rd Cir. 1979, writs denied, 379 So.2d 1104 (La.1980).

La.C.C. art. 187 considered alone, although somewhat ambiguous, might well be interpreted as permitting proof of non-paternity by a simple preponderance of the evidence. However, considering the state of the law prior to the amendments, the Legislative history surrounding the amendments, and the Official Revision Comments to La.C.C. art. 187 as amended, as well as the public policy against bastardizing the innocent child, we conclude that the Legislature intended the article as amended to be restrictive insofar as what types of evidence might be used to rebut successfully the presumption of paternity.

La.C.C. art. 184 as amended by Act No. 430 of 1976, establishing a presumption of paternity, provides:

The husband of the mother is presumed to be the father of all children born or conceived during the marriage.

It is not disputed that Lashawanda Mock was both conceived and born during the legal marriage of William and Anna Mock. The question is whether the character of the evidence admitted in this case was of the type contemplated by La.C.C. art. 187 to overcome the presumption of paternity, and if so, whether it was sufficient to overcome that presumption.

Prior to the amendment of this article in 1976, La.C.C. art. 184 had provided:

The law considers the husband of the mother as the father of all children conceived during the marriage.

The presumption created by this provision has been referred to as “the strongest presumption known in law.” Feazel v. Feazel, 222 La. 113, 62 So.2d 119 (1952). It was referred to as such because only in very rare instances could one even attempt to rebut it. It was found that this strict application of the presumption, although promoting the public policy against bastardizing children, often did not conform with the realities of the situation, that is, one who could not possibly be the biological father of the child, or one who was clearly not, was nonetheless often conclusively presumed to be so.

Accordingly, upon recommendation of the Louisiana Law Institute, which prepared and submitted the proposed amendments, the Legislature, by Act 430 of 1976, amended the Civil Code articles on paternity in an attempt to moderate the statutory and jurisprudential rules which had prevailed.

La.C.C. art. 187, establishing the burden of proof in a disavowal action, provides:

The husband can disavow paternity of a child if he proves by a preponderance of the evidence any facts which reasonably indicate that he is not the father.

Plaintiff argues that under La.C.C. art. 187, his testimony that he did not have sexual intercourse with his wife at the probable time of conception, if more believable than the contrary testimony of his wife, is sufficient to prove “by a preponderance of the evidence” that he is not the father of the child. He contends that testimonial evidence of this nature was included among the types of evidence contemplated by the legislature in their enacting the provision; and he contends that his evidence, accepted by the trial judge as true, is sufficient to support a judgment of non-paternity.

The attorney for the child, on the other hand, argues that this testimonial evidence of non-intercourse, which was contradicted by the testimony of the mother of the child, was not evidence of the type of facts intended by the Legislature to sustain the disavowal action in its reference to “any facts which reasonably indicate that [one] is not the father.” In support of this argument, defendant relies on the Official Revision Comments to article 187, which provide:

Article 187 was amended to provide that evidence used in an action for disavowal of paternity may consist of any facts which reasonably indicate that the husband is not the father of the child. Examples of the type of facts which may create a preponderance of evidence in an action to disavow may include (but are not limited to) such items as blood grouping test results or any other reliable scientific test results that preclude paternity of the husband, proof of sterility of the husband at the probable time of conception, and remoteness of the husband from the wife that makes the cohabitation unlikely at the probable time of conception.

While it is true that the Official Revision Comments are not part of the law itself (See Section 4 of Act No. 430 of 1976), we nonetheless find them helpful in our effort to discern the intent of the Legislature in enacting the statute. It is clear from the comments that the Legislature intended to allow disavowal of a child by proof of any of the specified means, or examples there noted: blood grouping tests; other scientific tests; proof of sterility at the time of conception; and proof of remoteness such that cohabitation was unlikely. The list is expressly not exclusive, and it is clear that the Legislature also intended to allow other types of facts, similar to the express examples, to support a disavowal action.

However, the article’s reference is to the proof of non-paternity by reasonably indicative facts, by a preponderance of the evidence. The burden is thus couched differently than a simple preponderance of the evidence. Upon reviewing the Legislative history of the article we find that this qualification, that the proof be of facts, was an intentional addition to the statute. The statute was originally introduced as House Bill No. 418 and read as follows:

The husband can disavow paternity of a child if he proves by a preponderance of the evidence that he is not the father.

The bill did not pass as thus prepared. Rather it was enacted into law only after being amended to read as follows:

The husband can disavow paternity of a child if he proves by a preponderance of the evidence any facts which reasonably indicate that he is not the father, (emphasis provided.)

This indicates that the Legislature was not satisfied with a mere requirement that the husband could disavow a child by a preponderance of any type of evidence, like the burden in most other civil cases. Rather, the Legislature intended a different type of burden, that the husband could only rebut the paternity presumption by proof by a preponderance of the evidence of facts which indicate that he is not the father of the child.

When this intentionally added qualification, requiring the proof to be by facts, is read with the examples of facts which were expressly contemplated, as set out in the comments, we conclude that the type of facts that the Legislature intended to be sufficient to rebut the paternity presumption are facts susceptible of independent verification, or of corroboration by physical data or evidence, such as scientific tests and the verifiable physical circumstance of remoteness. In the absence of proof of these types of facts, the presumption of paternity will not be overcome. Testimony by the husband that he did not have sexual intercourse with his wife, notwithstanding that he had ample opportunity, would generally be of probative value, but it is not proof of the kind of facts the article contemplates.

While this might seem to be a rather heavy burden on the husband, in fact the article as amended significantly liberalizes that burden, when we consider what had previously been the applicable law and jurisprudence. (See footnote 2.) It accomplishes the Legislative objective of allowing the husband to disavow a child born to his wife where it is clear that he is not the father, while retaining the public policy against bastardizing the innocent child. The wisdom of the Legislature’s broadening the permissible proof in paternity disavowal cases, although restricted to evidence of scientific facts and physical circumstances, while retaining the presumption of paternity and a heavier than usual burden of proof, is made evident by the advances in scientific testing in this field of the proof and/or disproof of paternity.

The only evidence introduced in this case concerning whether plaintiff was the father of the child was the testimony of plaintiff that he had not had sexual relations with his wife since their separation and the testimony of plaintiff’s brother that plaintiff had not, to the best of the brother’s knowledge, slept with his wife. This was contradicted by the testimony of Anna Mock who stated that she and her husband had had sexual relations on two occasions since their separation, one of those being on her birthday, around the possible time of conception. That testimony was corroborated by the testimony of her sister, who lived at the same house. The sister stated that William Mock was still at the house the morning after Anna’s birthday. The only other testimony had to do with Anna’s being seen twice in a lounge with another man, one Joe Sturgis, and with Sturgis’ giving William’s brother a cigar about a year after the baby had been born, an event which, as related by plaintiff’s brother, was admittedly not accompanied by any words associating the cigar gift with the birth of a child.

Plaintiff’s evidence simply did not include the type of facts contemplated by La.C.C. art. 187. There were no scientific test results admitted nor was there any showing of remoteness between William and Anna such that cohabitation was unlikely. To the contrary, the parties lived in the same city, they frequented the same lounges and William himself even admitted that he had visited the house where Anna lived. The presumption of paternity is rebuttable, but not with the character of proof presented here. It is the nature of the proof as well as its sufficiency which falls short of rebutting the legal presumption of paternity in this case.

Decree

For the foregoing reasons, the lower courts judgments allowing the disavowal are reversed.

REVERSED.

DIXON, C.J., concurs.

MARCUS, J., dissents and assigns reasons.

LEMMON, J., dissents and will assign reasons.

MARCUS, Justice

(dissenting).

Mr. and Mrs. Mock were separated in 1974. Four years later, Mrs. Mock gave birth to the child in question. Within sixty days, Mr. Mock filed a suit to disavow paternity. After trial on the merits, the trial judge rendered judgment in favor of Mr. Mock finding that he was not the child’s father. I am unable to say that the trial judge was clearly wrong in concluding that Mr. Mock proved by a preponderance of the evidence facts which reasonably indicate that he was not the father of the child. After all, in most cases, as in this case, it boils down to a question of credibility to be decided by the trier of fact. Accordingly, I respectfully dissent.

LEMMON, Justice,

dissenting.

Act 430 of 1976 overruled a series of cases which, contrary to good sense and experience, virtually made conclusive the presumption that the husband of the mother is the father of the child and imposed an almost impossible burden of proof on the presumed father. The clear intent of Act 430 was to eliminate the conclusiveness of the presumption and to provide a more realistic standard under which a plaintiff in a disavowal action might prove that he is not the father of the child in question.

As amended and reenacted, C.C. Art. 187 establishes the husband’s burden of proof, namely “by a preponderance of the evidence any facts which reasonably indicate that he is not the father”. The Official Revision Comment lists some examples of the “type of facts which may create a preponderance of evidence”, but specifically states that the type of facts “may include (but are not limited to)” those listed as examples.

The fact that the presumed father did not have intercourse with the child’s mother during the probable period of conception is certainly relevant to the issues in a disavowal case. The question here concerns the type of evidence which may be used to prove this fact. The majority view as to the appropriate type of evidence equates Article 187 to a dead man’s statute by requiring something more than the testimony of the claimant for a preponderance of the evidence. This decision in effect holds that the father is not a competent witness to testify on the fact of intercourse. The Legislature made no such pronouncement, and the Articles amended in 1976 contain no suggestion of a change in the normal rules of admissibility or of preponderance of evidence.

I would hold that evidence presented by a presumed father may consist of “any facts” relevant to the determination of paternity, including facts proved only by testimony of the witnesses as judged by the trier of fact. While it might have been preferable to eliminate swearing matches in disavowal cases, since the testimony of the presumed father and the child’s mother will generally be conflicting and self-serving, the Legislature did not expressly do so, and I would decline to infer such a legislative intent.

In the present case plaintiff’s disputed testimony, as corroborated by his witnesses, tended to prove he was not the father of the child, and the trial court expressly credited this evidence. Furthermore, the wife admitted that she and her husband had lived apart for five years without ever seeing each other except for two isolated occasions. This admitted circumstance itself casts doubt on the mother’s claim that they had intercourse on both occasions. Additionally, the wife admitted that she did not attempt to contact her husband or his family when she learned that she was pregnant or when the child was born. When the husband did learn of the pregnancy and birth, he immediately disclaimed responsibility and took legal action.

Under the overall circumstances, the trial court did not err in resolving the conflicting testimony in plaintiff’s favor and in finding he had met his burden of proof.

The judgment of the lower courts should be affirmed.

      . There were only six statutorily provided instances where the husband of the mother could attempt to rebut the presumption of paternity: (1) for causes of adultery where the birth had been concealed from the husband (La.C.C. art. 185); (2) where the child capable of . living is born before the 180th day after the marriage (La.C.C. art. 186) unless the husband knew of the pregnancy before the marriage or was present and signed the registering of the birth (La.C.C. art. 190); (3) where the child was born 300 days after the dissolution of the marriage (La.C.C. art. 187); (4) where the child was bom 300 days after a judgment of separation from bed and board unless cohabitation is shown (La.C.C. arts. 187 & 188); (5) where cohabitation has been physically impossible because of “remoteness” of the husband (La.C.C. art. 189); or (6) under the Uniform Act on Blood Tests to Determine Paternity (La.R.S. 9:396-398 Act No. 521 of 1972).

      . Even though the evidence indicated that the husband could not possibly have been the father of the child or was surely not, he nevertheless could not succeed in a disavowal action in the following situations: proof of natural impotence was not admissible in a disavowal action (La.C.C. art. 185); disavowal for sterility due to a childhood disease was not allowed, Tannehill v. Tannehill, 261 So.2d 619 (La.1972); the testimony of both the husband and the mother that the couple had not had sexual relations with each other was not sufficient to support the disavowal action, Feazel v. Feazel, 62 So.2d 119 (La.1952); the fact that the mother was living with the child’s acknowledged father at the time of the child’s conception and birth and the couple later married, was not sufficient proof for the legal husband to succeed in disavowing the child, George v. Bertrand, 217 So.2d 47 (La.App. 3rd Cir. 1968), writs denied, 219 So.2d 177 (La.1968), writs denied, 396 U.S. 974, 90 S.Ct. 439, 24 L.Ed.2d 443 (1969).

      . Had the Legislature intended that the presumption of paternity could be rebutted by the mere testimony of the husband or wife, they could certainly have made that intent clear as did the Wisconsin Legislature in enacting Wis. Stat.Ann. 891.39(l)(a) which provides:
      In all such actions or proceedings (in which the husband of the mother brings an action to disavow a child born during wedlock) the husband and the wife are competent to testify as witnesses to the fact.

      . While the blood grouping tests generally are not conclusive in proving or disproving paternity, there is a new test which has recently been developed, the' HLA test (Human Leucocyte Antigen test), which often reaches a 98% to 99% accuracy level in determining whether a man is or not the father of a certain child, and is beginning to be recognized in paternity cases in other jurisdictions. See Disputed Paternity Proceedings, Sidney B. Schatkin, Fourth Edition, Supp.1981, Vol. 1, §§ 8.01-8.19.

      . It is evident that the examples are merely illustrative, since at least two of the three listed examples were, prior to the 1976 amendment, already statutorily acceptable methods of proving non-paternity. R.S. 9:396 et seq., effective in 1972, provided that the presumption of the legitimacy of a child is overcome when the results of blood grouping tests indicate that the husband is not the father of the child. (Acts 1972, No. 521, § 5). Similarly, former Article 189 provided that the presumption of paternity is at an end when the remoteness of the husband from the wife has been such that cohabitation has been physically impossible. And while sterility of the husband was not a statutory basis for disavowal before the amendments, the inclusion of sterility as an example of the type of fact which would support the father’s burden of proof seems to be a direct result of the decision in Tannehill, supra, and is indicative of the intent to overrule that case and others like it.

      . Under the authority of R.S. 9:396 et seq., the trial court could have ordered, or any of the parties could have requested, that blood tests be taken. The failure to introduce such evidence, although an appropriate factor to be considered, does not automatically defeat plaintiffs action for disavowal.


author:
BLANCHE, Justice.
     LEMMON, Justice,

text:
    STATE of Louisiana v. Harlon FREEMAN and Tim Lee.
    No. 81-K[A]-0944.
    Supreme Court of Louisiana.
    March 1, 1982.

      Ike F. Hawkins, Jr., Shreveport, Claude R. Sledge, Mansfield, for defendants-rela-tors.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Abbott J. Reeves, Herman Lawson, Asst. Dist. Attys., for plaintiff-respondent.
   BLANCHE, Justice.

After a bench trial, defendants, Harlan R. Freeman and Tim R. Lee, were each convicted on three counts of hunting deer at night and three counts of hunting or taking deer in closed season, both violations of R.S. 56:123(E)(2). The trial judge also found defendants guilty of hunting from a moving vehicle and hunting from a public road, violations of R.S. 56:124(1), as well as resisting an officer, a violation of R.S. 14:108. Since the aggregate sentences imposed exceeded six months imprisonment and were greater than $500 in fines, defendants appeal their convictions to this Court, raising three assignments of error. Because we find that two of these assignments have merit, defendants’ convictions are affirmed in part and reversed in part.

Late one September evening, Allen Reynolds briefly observed what appeared to be a moving light in a field located a short distance from his residence. Several minutes after the light had ceased shining, Reynolds heard two gunshots originating from the same area as the light. Reynolds told his wife to report the occurrence to the Sheriff’s Office while he drove in the direction of the gunshots to discover their source. His investigation uncovered a parked, black Ford truck with an extra set of lights positioned on top of the truck’s cab. However, neither of these “spotlights” nor any of the truck’s other lights were lit when Reynolds discovered the truck. This witness testified that, as he approached the black vehicle which was standing in the middle of a paved road, it took off “real fast”. Even so, Reynolds was able to obtain the truck’s license number and was able to observe two occupants, as well as some type of rifle, in the cab. Reynolds then returned to his house and relayed this information to the Sheriff’s Office, which had already contacted Wildlife & Fisheries agents about the earlier gunshots heard by Reynolds.

When a black Ford truck later drove past Reynolds’ residence at a high rate of speed, he immediately pursued it to solidify his belief that it was the same vehicle he had observed earlier that evening. The two vehicles were approached by a Wildlife & Fisheries agent, who was travelling in the opposite direction and had been given the suspect truck’s description and license plate number by the Sheriff’s Office. The agent made a U-turn with his marked vehicle and proceeded to follow the black truck while Reynolds abandoned his pursuit and returned home. At this point, the black Ford attempted to evade the agent by accelerating to an extremely high rate of speed. The agent unsuccessfully attempted to overtake the truck. While pursuing the fleeing vehicle, the Wildlife & Fisheries agent gave notice of his presence by turning on his red flashing light but, apparently, never sounded his siren.

Though the black truck successfully escaped this agent, it was eventually stopped by other agents as defendant attempted to pull into his driveway. The agents arrested the two defendants and a juvenile, and a search of the black Ford truck produced only a handgun. The next day, Wildlife & Fisheries agents returned to the area where Reynolds first observed the black Ford. A search of the landscape produced three recently shot deer and two' “270” spent rifle shells. The gun which was used to kill the deer was never recovered.

Defendants were each charged with one count of hunting deer at night and hunting or taking deer out of season for each of the three deer found by the agents. The other charges against defendants arose out of their use of a moving vehicle for hunting purposes and their flight from Wildlife & Fisheries agents.

Assignment of Error Number 1

At the close of the state’s case, defendants moved for a directed verdict of acquittal under the bills of information charging them with resisting arrest, a violation of R.S. 14:108. This statute provides in pertinent part that:

Resisting an officer is the intentional opposition or resistance to, or obstruction of, an individual acting in his official capacity and authorized by law to make a lawful arrest or seizure of property, or to serve any lawful process or court order, when the offender knows or has reason to know that the person arresting, seizing property, or serving process is acting in his official capacity.
The phrase ‘obstruction of’ as used herein shall, in addition to its common meaning, signification and connotation mean:
(a) Flight by one sought to be arrested before the arresting officer can restrain him and after notice is given that he is under arrest.

By this assignment of error, defendants maintain that they were not notified that they were going to be arrested while being chased by the game warden. Upon reaching their destination, defendants admittedly offered no opposition, resistance or obstruction to the two other Wildlife & Fisheries units awaiting their arrival. Defendants urge that they were attempting to evade the witness who had heard the shots and had seen their truck parked on the road, and were not even aware that any report had been made to anyone acting in an official capacity.

Essential to a conviction under R.S. 14:108 is the defendant’s knowledge of his arrest or impending detention. State v. Nix, 406 So.2d 1355 (1981).

As a result, defendants urge that an essential element of the crime was not established by the state and the trial judge erred in his refusal to grant their motion for a directed verdict of acquittal.

Agent Dalton Green was the first Wildlife & Fisheries agent to pursue the black Ford truck. Green stated that he initially approached defendant’s pickup, which was being followed by Mr. Reynolds, from the opposite direction in which defendants were travelling. Both defendants’ truck and Reynolds’ vehicle were travelling at a slow rate of speed. Green testified that he slowed almost to a stop when he met them. He then slammed the brakes on, put his vehicle in reverse and “wheeled around right quick between the two vehicles.” The agent recognized the truck from the license number and description that had been given to him. He was driving his game warden truck with the Wildlife sticker on the side and a red enforcement sign on it.

After Green turned in between the truck and the car following it, the truck took off at a high rate of speed. Green chased it but was unable to catch it, though he drove to 100 miles per hour at one point. Further, the agent testified that during the chase, defendants’ truck cut across his path on two separate occasions.

It is our opinion that Agent Green’s actions, coupled with defendants’ reactions to his presence, clearly established defendants’ knowledge that the agent was pursuing them in his official capacity, and intended to arrest them. See State v. Huguet, 369 So.2d 1331 (La.1979). In the instant ease, Agent Green appropriately conveyed his intention to arrest defendants by turning to pursue them in his game warden truck with its red lights flashing. Defendants’ flight,- after Green appeared on the scene, supports our conclusion that the agent’s alleged failure to sound his siren did not preclude defendants from being informed that they were being pursued by a law enforcement official attempting to make an arrest. Cf. State v. Nix, supra. Accordingly, this assignment of error is without merit.

Assignment of Error Number 2

Immediately before trial, defendants filed motions to quash four of the six bills of information charging them with hunting deer at night and four of the six bills of information charging them with hunting or taking deer in closed season. These twelve bills were based upon violations of R.S. 56:123(E)(2), which provides in pertinent part:

. . . Whoever violates the provisions of this section by the hunting or taking of deer after one-half hour after official sunset and before one-half hour before official sunrise or by the hunting or taking of deer or turkeys in closed season shall for the first offense be fined not less than $350 and not more than $500 and shall be imprisoned in jail for thirty days.

Defendants argued to the trial judge that the word “deer” as used in the above statute was intended to be plural and not singular, so they should have been charged with one count each of hunting deer at night and hunting or taking deer in closed season. The trial court rejected defendants’ argument and denied their motion to quash. By this assignment of error, defendants take exception to the trial court’s adverse ruling on the motion to quash.

Defendants urge that the trial judge, by finding both of them guilty of six violations of R.S. 56:123(E)(2), when in fact only two existed, subjected defendants to triple punishment for each of the two violations. In support of their position that “deer” should be interpreted in the plural form, defendants rely on C.Cr.P. art. 4, which provides the following general rule of construction:

Art. 4. Number; gender
Unless the context clearly indicates otherwise:
(1) Words used in the singular number apply also to the plural; words used in the plural number include the singular;

It is well established that criminal statutes are to be strictly construed and, in the absence of an express legislative intent, any doubt or ambiguity should be resolved in favor of lenity and not so as to multiply the penalty imposed. State v. Boniface, 369 So.2d 115 (La.1979); State v. Cox, 344 So.2d 1024 (La.1977). R.S. 14:3. We also recognize that the guarantee against double jeopardy found in the United States Constitution embodies a dual protection — prohibiting multiple prosecutions for the same offense, as well as multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

In the present case, the statute under which defendants were charged, R.S. 56:123(E)(2), prohibits the hunting of “deer” at certain proscribed times. Even without resort to the rule of construction found in C.Cr.P. art. 4, supra, it is evident that the use of the word “deer” without being proceeded by an article of grammar, such as “a”, “an” or “the”, is not limited to the singular, but also encompasses the plural form. See Webster’s New International Dictionary, unabridged, 2nd Edition.

Further, laws in pari materia, or upon the same subject matter, must be construed with reference to each other. What is clear in one statute may be called in aid to explain what is doubtful in another. State v. Jewell, 345 So.2d 1166 (La.1977). As properly noted by appellants, a reading of the entire section of the Revised Statutes concerning conservation and protection of wild birds and game establishes that the legislature expressly made the taking of an individual game an offense under some provisions while, in other provisions, the distinction between singular and multiple takings is non-existent. Cf. R.S. 56:124(1).

We are of the opinion that the provisions of R.S. 56:123(E)(2) are limited to the event or occurrence involving the illegal taking of deer, regardless of the number of deer actually taken during the occasion. Had the legislative aim been to make the taking of each individual deer an offense, it would have clearly expressed that intent. To construe the statutory provisions otherwise would permit prosecutors to create multiple offenses without a legislative grant of authority.

For these reasons, we conclude that the trial court erred when it failed to sustain defendants’ motion to quash the bills of information concerning the multiple charges of illegally hunting deer.

Assignment of Error Number 3

By this assignment of error, defendants contend that the trial court erred in not sustaining their motion for a directed verdict of acquittal for the charges related to hunting or taking game from a moving vehicle. In this connection, R.S. 56:124(1) provides, in pertinent part, that “No person shall .. . hunt or take game quadrupeds or game birds from a moving land vehicle or aircraft.” (emphasis added) Defendants urge that because the state failed to establish that their vehicle was actually moving at the time of the offense, an essential element of the crime was not established. To this, the trial judge responded:

I think what the Legislature intended is, when it said “Moving vehicle or aircraft”, “Moving land vehicles” it contemplated one that was a mobile unit; not necessarily that it was in motion at the time the shot was fired.

However, this Court has held that where the words of a statute are clear and free from ambiguity, they are not to be ignored under the pretext of pursuing their spirit. State v. Gaines, 372 So.2d 552 (La.1979). By the express language of R.S. 56:124(1), it is clear that only hunting from a vehicle which is moving is prohibited. Moreover, even if the statute were found to be ambiguous, such ambiguity would have to be construed in defendants’ favor. State v. Gaines, supra; State v. Young, 357 So.2d 503 (La.1978). Clearly, had the legislature desired to prohibit the hunting or taking of deer from a movable vehicle, whether or not it was moving at the time of the offense, it could easily have expressed its intent. We conclude that the trial court erred in not granting defendants’ motion for a directed verdict of acquittal as to the charges of hunting from a moving vehicle.

For the above reasons, defendants’ convictions for resisting arrest and hunting from a public road are affirmed. Their convictions based on hunting from a moving vehicle are reversed. Further, it is ordered that defendants’ multiple convictions based on hunting deer at night and hunting or taking deer in closed season be reduced to single convictions and the case is hereby remanded to the trial court for resentencing as to these convictions.

LEMMON, J., dissents in part and assigns reasons.

LEMMON, Justice,

dissenting in part.

R.S. 56:123 prohibits the hunting or taking of deer (which includes the killing of deer) in closed season. See State v. Carpenter, 319 So.2d 355 (La.1975). When defendants killed three deer in closed season (although only moments apart), they committed three separate violations of the statute and subjected themselves to a penalty for each violation.

Arguably, the act of hunting deer in closed season is one act and therefore one violation, no matter how many deer there are in the woods during the hunt. But when the act of hunting in closed season results in the actual killing of a deer, one offense has been completed, and any additional killing constitutes a separate offense.

I therefore dissent from setting aside defendants’ conviction on two of the three counts of taking deer in closed season.

I also believe that the trial judge should have quashed the bill of information charging defendants with three counts of taking deer more than one-half hour after sunset. The statute’s limitation of hunting to daylight hours obviously contemplates a limitation applicable only to open season, since hunting is illegal at all hours in closed season. The Legislature did not clearly intend to make one act (hunting at night in closed season) two separate offenses under the statute, and the prohibition against hunting at night in closed season should not be interpreted to permit multiple punishments.

I therefore also dissent from not setting aside the convictions and sentences on all three counts of taking deer at night, because the trial judge had already imposed sentences on the three counts involving taking deer in closed season.

       Judges Melvin A. Shortess, Burrell J. Carter and Felix H. Savoie, Jr. of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc joined by Associate Justices Dennis, Blanche, Watson and Lem-mon.

      . Killing two deer in closed season is obviously more serious than killing one deer. A separate count should be allowed for each killing, subject to the district attorney’s discretion as to how many counts to charge.

      . R.S. 56:123 defines one offense which “may be committed by doing one or more of several acts, or by one or more of several means ... or with one or more of several results.” C.Cr.P. Art. 480. Although the various acts, means or results may be charged conjunctively in a similar indictment under C.Cr.P. Art. 480, double jeopardy principles prohibit imposition of multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).


author: CARTER, Associate Justice Ad Hoc.

text:
    STATE of Louisiana v. Anthony HATHAWAY.
    No. 80-KA-2516.
    Supreme Court of Louisiana.
    March 12, 1982.

      William J. Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns and Richard Petri, Asst. Dist. Attys., for plaintiff-appellee.
    Philip R. Johnson, Metairie, George Escher, New Orleans, for defendant-appellant.
   CARTER, Associate Justice Ad Hoc.

Defendant was charged by a Bill of Information with possession of a firearm by a person convicted of a felony, in violation of La.R.S. 14:95.1. He first pleaded not guilty to the charge but after commencement of jury selection was allowed to withdraw that plea and to plead guilty as charged, reserving his right to appeal the adverse ruling on his motion to suppress the evidence only. The plea was accompanied by the usual Boykin Examination, and the record indicates that defendant understood and waived his right against self incrimination, his right to trial by jury, his right to confront witnesses against him, and his right to appeal.

On the basis of his guilty plea, defendant was sentenced to serve four years at hard labor. No objection was made during the proceedings. On appeal, defendant urges two assignments of error. Defendant’s first assignment of error is based on the allegation that there is error patent on the face of the record in that the Bill of Information charged no crime since the wording of the statute under which he is charged exempts him from criminal liability. Defendant’s second assignment of error is that it was error for the trial court to deny his motion to suppress the evidence based on the contention that the gun was seized incident to an unlawful arrest.

At the hearing on the motion to suppress, Officer Forrest Bethay of the New Orleans Police Department testified that on March 30, 1979, around 6:00 P.M., he and Officer Robert Barrerre received a telephone call from a confidential informant who had supplied information which had led to arrests and convictions on two prior occasions. The confidential informant told the officers that one Joseph Woods, a known narcotics user would be delivering a quantity of preludins to a residence in the 1200 Block of South White Street. It was also stated that Woods would be carrying a revolver. Officers Bethay and Barrerre proceeded immediately to the area of South White Street and upon their arrival observed Joseph Woods talking on Broad Street at the intersection of Clio. Bethay who was in plain clothes got underneath a truck and watched Woods walk down Clio Street. Woods was turning around and looking up and down the street as to determine if anyone was watching his actions.

Bethay returned to the unmarked police car, advised Officer Barrerre what he had observed, then drove immediately to 1229 South White Street. They observed Joseph Woods, Vincent Vantress, and defendant Anthony Hathaway “standing on the sidewalk.” Officer Bethay had known both Woods and Vincent Vantress as narcotics users from his own personal knowledge obtained from past investigations involving both Woods and Vantress. Officer Bethay had never seen nor did he know Anthony Hathaway before this incident. As they alighted from their vehicle, they identified themselves in the following manner, “Police officers, freeze.” Hathaway and Vantress immediately ran into a residence at 1229 South White, which was presumed to be Hathaway’s. Bethay pursued Hathaway and Vantress. Upon reaching the front door, Officer Bethay discovered the door to be locked and kicked it open. Upon entering the room, he observed Hathaway standing in the kitchen with a revolver in his hand pointing in Officer Bethay’s direction. Bethay immediately “went against the wall” and “ordered Mr. Hathaway to throw down the gun.” Hathaway threw the gun to the floor and put his hands in the air. Officer Bethay, hearing the toilet flush, immediately looked in the bathroom and saw Vantress standing with a revolver in his hand. Bethay disarmed Vantress and removed a syringe from the bowl of the toilet.

Defendant Hathaway was thereafter charged with being a convicted felon in possession of a firearm, having previously been convicted of murder and attempted murder in 1964.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant’s first assignment of error is that there is error patent on the face of the record, in that the Bill of Information charges no crime because the wording of the statute under which he is charged exempts him from criminal liability.

Defendant is charged under R.S. 14:95.1 •which reads in part as follows:

“A. It is unlawful for any person who has been convicted of first or second degree murder ... to possess a firearm or carry a concealed weapon.
C. Except as otherwise specifically provided, this section shall not apply to the following cases:
(1) The provisions of this section . .. shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence ...”

Defendant urged in his original motion to quash that R.S. 14:95.1 was too vague, general, and indefinite in its language, preter-mitting the defendant’s ability to know what he had to defend against. He also contended that there is ho objective standard that would allow the defendant to know which acts allegedly proscribed are illegal or innocent. He also contends that the correct interpretation of Section C of R.S. 14:95.1 would be that the defendant must have committed an additional intervening felony within a ten year period after serving his sentence on the first enumerated felony, and secondly, there was no evidence in the record to show when he was relieved of the ten year liability emanating from R.S. 14:95.1.

These arguments are without merit. This Court has made clear its interpretation of R.S. 14:95.1 in numerous cases. State v. Sanders, 337 So.2d 1131 (La.1976); See also State v. Blanchard, 374 So.2d 1248 (La.1979); State v. Amos, 343 So.2d 166 (La.1977). Defendant must only have one prior conviction of one of the enumerated crimes to fall within the perimeters of R.S. 14:95.1.

Defendant’s second contention in this assignment of error is that there was no evidence in the record to show when he was relieved of the ten year liability emanating from R.S. 14:95.1. The Bill of Information only provides that “the said Anthony Hathaway, having previously been convicted of a felony, to wit: Murder in case No. 183-078 Section “C” of the docket of the Criminal District Court of the Parish of Orleans, State of Louisiana...” Defendant was convicted of murder and attempted murder in 1964. However, as part of defendant’s Boykinization it was stated by defendant’s counsel “.. at this point I have consulted with my client and he is desirous of and has indicated to me that he would like to change his plea of not guilty and enter a plea of guilty to the charge, reserving his right to any appeal under State v. Crosby, the Motion to Suppress.”

Certainly in a trial of this offense the State must prove beyond a reasonable doubt not only that a convicted felon possessed a firearm, but the date of completion of the punishment as well. State v. William, 366 So.2d 1369 (La.1978). However, defendant has hereby forfeited his right to appeal all non-jurisdictional defects by changing his plea to guilty and reserving his right to appeal only on the adverse ruling on his motion to suppress. Cf. State v. Crosby, 338 So.2d 584 (La.1976). A defendant’s plea of guilty constitutes an intelligent waiver of appellate review of the merits of the prosecution’s case against him. State v. Bell, 332 So.2d 222 (La.1976).

Even if this Court considered defendant’s assignment of error that the state must prove the date of completion of punishment (which is not part of the Motion to Suppress), by entering a guilty plea after commencement of trial, the State was not afforded the opportunity to carry this burden. It is interesting to note that at the Preliminary Hearing conducted on April 4, 1979, the following occurred:

BY DEFENSE ATTORNEY OLGO RO-GOS:
Your Honor, at this time, we wish to stipulate on behalf of defendant Woods, Vantress and Page that they have prior felony convictions.
BY THE STATE:
Which fall under the Provisions of 95.1?
BY DEFENSE ATTORNEY OLGA RO-GOS:
Yes.
BY THE STATE:
Your Honor, it is my understanding that there has been a stipulation as to Hathaway.
BY DEFENSE ATTORNEY CAUFIELD:
We stipulate to that, also, your Honor. We also would like to state that this is no way submitting to or admitting that they are guilty of the 95.1.
BY THE COURT:
You just stipulated that they do have prior convictions which would make them subject to provisions of 95.1?
BY DEFENSE ATTORNEY OLGO RO-GOS:
Yes, your Honor.
BY DEFENSE ATTORNEY CAUFIELD:
Yes, your Honor.

Clearly, if this Court were to consider this contention (in the absence of a completed transcript of trial) we would have to look to the entire record including the exerpt from the Preliminary Hearing. Defendant’s contention is without merit.

For the above reasons, the various contentions asserted in assignment of error number one are unsupported and assignment of error number one is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In this assignment of error, the defendant contends that the gun was seized as a result of an unlawful arrest. Defendant contends that the actions of the police constituted an unlawful stop of Hathaway, a warrantless search of his home and a war-rantless arrest of Hathaway, all without reasonable or probable cause.

Code of Criminal Procedure Art. No. 213 provides that a police officer may, without a warrant, arrest a person when the officer has reasonable cause to believe that the person to be arrested has committed an offense. Upon his entry into the apartment on South White Street, Officer Bethay observed Anthony Hathaway point a gun at him which constituted an assault upon the officer. This clearly would justify a war-rantless arrest if there was no illegality in the events leading up to the arrest.

At this point, we must address the issue as to whether or not the officer’s entry into Hathaway’s apartment was a lawful entry. It is patently unlawful for an entry of private premises to take place without a warrant, unless the search is justified under one of the narrow exceptions to the rule requiring the use of a search warrant. Police entry into a residence in “hot pursuit” and under “exigent circumstances” are exceptions to the warrant rule. State v. Franklin, 353 So.2d 1315 (La.1978) conviction affirmed; 362 So.2d 1383 (La.1978).

However, for this exception to apply the officer must have had probable cause to arrest a person before pursuing him, in order to justify the entry.

Since both Hathaway and Vantress fled to the apartment, it would not be necessary to have sufficient probable cause to arrest both. It would suffice only to have probable cause to pursue either of the two in order to justify the entry. A similar circumstance presented itself in State v. Abadie, 390 So.2d 517 (La.1980), where one individual fled into an apartment. Officers entered in hot pursuit and arrested several other persons present.

An arrest by a police officer can be made without a warrant only if he has reasonable cause to believe that the person to be arrested has committed an offense. Code of Criminal Procedure Article No. 213. Reasonable cause for an arrest exists when facts and circumstances known to the arresting officer and of which he has reasonable trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. State v. Edwards, 375 So.2d 1365 (La.1979). These encounters must be carefully scrutinized to determine if there is in fact probable cause. Police officers can not actively create “street encounters” unless they have knowledge of suspicious facts and circumstances sufficient to allow them to infringe upon the suspect’s right to be free from government interference. State v. Saia, 302 So.2d 869 (La.1974).

The officers obtained a tip from a reliable informant that Joseph Woods, a known narcotic user, was about to make a sale on the 1200 block of South White Street. An informant’s tip can provide a police officer with reasonable cause to detain and question a person suspected of criminal activity. State v. Bolden, 380 So.2d 40 (La.1980). In determining whether reasonable cause for an investigatory stop based upon an informant’s tip exists, reliability of both informant and his information must be satisfactorily demonstrated, or, if the tip is inadequate under the standard, it may be deemed sufficiently trustworthy on the basis of corroboration by independent sources. State v. Brown, 370 So.2d 347 (La.1979).

Louisiana Code of Criminal Procedure Article 215.1, provides that 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 misdemeanor and may demand of him his name, address and explanation of his actions. Reasonable cause for an investigatory stop or detention is something less than probable cause, but requires the detaining officer to have articu-lable knowledge of particular facts sufficiently reasonable to suspect the detained person of criminal activity. State v. Edsall 385 So.2d 207 (La.1980). The observation on the 1200 Block of South White Street showed Joseph Woods moving down the street in a furtive manner, coupled with the reliable informant’s tip and the fact that Woods met Vincent Vantress, another known narcotic user, is sufficient to create an articulable suspicion to stop and detain Woods and Vantress.

When the officer yelled “Police officer, freeze”, Vantress and the defendant Hathaway fled the scene. The fact that a person runs or flees does not in itself and of itself establish probable cause. Flight does not always indicate guilt; it may result from fear and possibly other causes. Even where flight does reasonably appear designed to avoid apprehension, reasonable cause will not arise unless flight, combined with other information upon which officers are entitled to rely, would indicate to a reasonable mind that the combination of circumstances is inconsistent with any innocent pursuit. State v. Franklin, 353 So.2d 1315 (La.1978) conviction affirmed, 362 So.2d 1383 (La.1978). In the instant case, with the information the officers had at the time they made their presence known, the flight of Vantress and Hathaway was sufficient to ripen the reasonable suspicion to detain into probable cause to arrest Van-tress.

Probable cause alone does not justify the entry into an area otherwise protected by the Fourth Amendment of the United States Constitution and the Louisiana Constitution, Article 1, Section 5. There is a justified intrusion of a protected area if there is probable cause to arrest and exigent circumstances. State v. Rudolph, 369 So.2d 1320 (La.1979). Exigent circumstances are exceptional circumstances which when coupled with probable cause justify an entry into a “protected” area that, without those exceptional circumstances, would be unlawful. Examples of exigent circumstances have been found to be escape of the defendant, avoidance of a possible violent confrontation that could cause injury to the officers and the public, and the destruction of evidence. Rudolph Supra, Abadie Supra. In the case before us, when Vantress and Hathaway fled, the justification for the warrantless entry into Hathaway’s apartment occurred when the police officers were confronted with a situation on which prompt action was necessary to prevent the flight of the alerted suspect Van tress and the possible destruction of evidence, narcotics. Therefore, the above warrantless entry into the apartment was justified, thereby making the warrantless arrest of Hathaway clearly proper. As previously discussed, the officer, once legally in the residence, clearly had probable cause to arrest Hathaway without a warrant since Hathaway was pointing a gun at him.

The gun was legally seized incident to a lawful arrest and this assignment of error by the defendant is without merit.

AFFIRMED.

DENNIS, J., concurs.

       Judges Melvin A. Shortess, Burrell J. Carter and Felix N. Savoie, Jr. of the First Circuit Court of Appeal participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Calogero, Marcus and Dennis.

      . Although in Boykinization, defendant stated that he waived his right to appeal R. p. 38, it is clear that he reserved his right to “.. . an appeal under State v. Crosby [388 So.2d 584 (La.) ], the Motion to Suppress.”

      . Record, Page 36.

      . Underlining by the Court.

      . Record, pages 61 and 62.


text:
    Joseph M. TOUCHET, Jr. v. Maxie BROUSSARD.
    No. 81-C-2462.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
   In re Joseph M. Touchet, Jr., applying for writ of certiorari to review decision, to the Third Circuit Court of Appeal. No. 8407. parish of Lafayette.

Granted. Appeal reinstated. See Perkins v. Coker, La., 404 So.2d 902.


text:
    STATE of Louisiana ex rel. James Edward SMITH v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 81-KH-3149.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re James Edward Smith, applying for writ of certiorari, prohibition, mandamus or habeas corpus. Parish of Tangipahoa. No. 65065.

Denied. See State v. Smith, La., 381 So.2d 825.


text:
    STATE of Louisiana ex rel. James LAGARDE, Jr. v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2259.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re James Lagarde, Jr., applying for writ of certiorari, prohibition, mandamus or habeas corpus. Parish of Terrebonne. No. 53844.

Granted.


text:
    STATE of Louisiana, ex rel. Alvin MATTHEWS v. Edwin A. LOMBARD, In His Official Capacity as Clerk of the Criminal District Court.
    No. 81-KH-2579.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re Alvin Matthews, applying for writ of mandamus. Parish of Orleans.

Granted. The trial court is ordered to furnish relator Boykin transcripts in Nos. 274-607, 274-662, and 275-112.


text:
    STATE of Louisiana ex rel. Charon TITUS v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 81-KH-3049.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re Charon Titus, applying for writs of certiorari and review, and a stay order. Parish of East Baton Rouge. Nos. 2-2-76-946 and 9-76-139.

Granted. The sentence is set aside, and the case is remanded to the trial court to correct the illegal sentence, which denied parole eligibility for a 1973 offense.


text:
    STATE of Louisiana, ex rel. Francis CLIFTON v. STATE of Louisiana.
    No. 82-KH-0234.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re Francis Clifton, applying for remedial writs. Parish of Rapides. No. 69532.

Granted. Transcript and bill to be sent to relator.

MARCUS, BLANCHE and WATSON, JJ., dissent from the order.


text:
    STATE of Louisiana v. Terry EDWARDS.
    No. 82-K-0264.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re Terry Edwards, applying for writ of certiorari. Parish of Orleans. No. 271-536D.

Granted. The ruling of the trial court is reversed; the case is remanded for an evi-dentiary hearing on the habeas application and for a ruling thereon; the right to apply for review is reserved to both sides.


text:
    STATE of Louisiana ex rel. Warren RANGE v. Doug MOREAU (Judge), 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana.
    No. 82-KH-0289.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re Warren Range, applying for writ of mandamus. Parish of East Baton Rouge. No. 6-81-566 and 6-81-567.

Granted. Trial judge ordered to rule on Motion to Quash before trial.


text:
    STATE of Louisiana v. Thelma HORNE.
    No. 82-K-0598.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re Thelma Horne, applying for writs of certiorari, prohibition, mandamus, and a stay order. Parish of Jefferson. No. 81-4508.

Writ granted. The trial court is ordered to grant relator a continuance.


text:
    STATE of Louisiana, ex rel. Julius ARONOLD v. Charles WARD, Judge, Section “A” Criminal District Court, Parish of Orleans, State of Louisiana.
    No. 81-KH-2391.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re Julius Aronold, applying for writ of mandamus. Orleans Parish. No. 266-77.8-J.

Denied.


text:
    STATE of Louisiana, ex rel. Michael VINING v. Frank C. BLACKBURN, Warden Louisiana State Penitentiary.
    No. 81-KH-2557.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re Michael Vining, applying for remedial writs. Parish of Orleans. No. 271-037.

Denied.


text:
    STATE of Louisiana v. Eddie Lee HOWARD.
    No. 81-K-2875.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re Eddie Lee Howard, applying for writ of certiorari. Parish of Caddo. Nos. 92674, 97057 and 103193.

Denied.


text:
    STATE of Louisiana ex rel. Eugene WILLIAMS v. Clerk of Court Honorable Edwin LOMBARD.
    No. 81-KH-2894.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re Eugene Williams, applying for writ of mandamus. Parish of Orleans. No. 279-889, 279-890.

Writ denied. Relator must first seek relief in the trial court.


text:
    STATE of Louisiana, ex rel. Wilbert MATTHEWS v. STATE of Louisiana.
    No. 81-KH-2934.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re Wilbert Matthews, applying for writ of mandamus. Orleans Parish.

Writ denied. Moot.