author: PHILIP C. CIACCIO, Justice Pro Tem.

text:
    STATE of Louisiana v. Roy Edward ATES.
    No. 81-KA-2698.
    Supreme Court of Louisiana.
    June 21, 1982.
    Rehearing Denied Sept. 24, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Lavalle Salomon, Bruce G. Whittaker, Asst. Dist. Attys., for plaintiff-appellee.
    J. Randolph Smith, Gilmer P. Hingle, Smith & Hingle, Monroe, for defendant-appellant.

       Dennis & Lemmon, JJ. concur, disagreeing with the treatment of Assignment No. 8.

   PHILIP C. CIACCIO, Justice Pro Tem.

The defendant, Roy Edward Ates, was charged and convicted, after a jury trial, of the crime of second degree murder. R.S. 14:30.1. He has appealed relying upon 17 assignments of error.

On the night of September 29, 1980, the defendant, Roy Ates, and his wife, Katherine, were at home with their three year old son. As the defendant was handling a shotgun, it discharged, hitting his wife in the face and killing her instantly. The defendant at first professed that the incident was an accident that occurred because his gun malfunctioned as he was cleaning it. He later admitted that the day before this incident he took the victim’s grandfather with him to use the gun and thereby established an alibi that the gun malfunctioned in operation. He further stated that on the day of the shooting he and his wife had visited the grave of one of their children who had died. He said that his wife had blamed him for the child’s death, although the child died of natural causes. When they returned to their house that afternoon, the defendant wanted to watch television but his wife kept insisting that he go to another room and get their daughter. The wife left the room and returned. The defendant was cleaning his gun. He admitted thinking a lot about killing her, but he contends that on this day he only meant to scare her by shooting the gun. He pulled the trigger and the gun discharged hitting his wife in the face. The defendant grabbed his son, who was playing in the room, and ran to a neighbor’s house.

The defendant’s former girlfriend, Mary Deland, testified that she had started dating the defendant in June, 1979 when he was separated from his wife. She became engaged to marry him on Christmas of 1979. In June, 1980 she moved with him to Oklahoma and lived with him until July, 1980 when he returned to his wife. She saw him on September 20, 1980 to return his clothes. She stated that they had met several times after this and the defendant advised her that he wanted to marry her but he could not go through with a divorce or separation and that the only way out of his marriage was to kill his wife. She saw on the news that the defendant had killed his wife. She stated that the defendant told her about the alibi incident with the victim’s grandfather and that on the night of the shooting debated with himself about killing his wife. He admitted to this witness that the gun went off as he was contemplating the act and that he shot his wife.

The defendant was arrested on January 19, 1981 and subsequently charged, by a bill of indictment, with the murder of his wife, Katherine Ates.

Assignment of Error Nos. 6 and 17.

The defendant excepted and assigned error to the refusal of the trial court judge to order the State to produce prior statements made by the defendant’s girlfriend, Mary Deland. The defendant filed a motion to produce any such statements made to investigatory bodies or law enforcement personnel. The defendant filed a subpoena duces tecum directing the prosecuting District Attorney to produce in open court the trial transcription of all such statements and he also requested portions of the materials relating to Grand Jury testimony for inspection during the trial. The State filed a motion to quash the subpoena. In the alternative, the defendant asked that an in camera inspection of the statements be conducted by the Court.

Rulings on these motions were deferred for disposition at trial by the trial judge. The defendant objected to the court’s ruling. During the trial testimony of witness Deland, defendant moved again for the transcripts of prior statements which could be used to impeach her credibility or alternatively for an in camera inspection.

The defendant contends that because the testimony of Ms. Deland was virtually in-dispensible to the State’s case in proving motive and premeditation, it was vital to his defense wherein he alleged and sought to prove that the killing was accidental.

Under the United States Supreme Court decision of Brady v. Maryland, the State, upon request, must produce evidence that is favorable to the accused where it is material to guilt or punishment. 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This rule has been expanded to include evidence which impeaches the testimony of a witness where the reliability or credibility of that witness may be determinative of guilt or innocence. Giglio v. U.S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Where a specific request is made for such information and the subject matter of such a request is material, or if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the information to the trial judge. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 346 (1976).

Under the laws of the State of Louisiana, as a general rule, the prosecution is not required to furnish statements by witnesses made to the District Attorney or an investigative body. C. Cr. P. Art. 723. The exceptions to such discovery are specifically prescribed by statute. C. Cr. P. Arts. 716, 718, 721-723. The defendant may not be denied exculpatory statements made by a witness other than the defendant provided the statement is material and relevant to the issue of guilt or punishment. State v. Landry, 381 So.2d 462 (La., 1980). The defendant’s request for such materials must be specific and relevant. State v. Davenport, 399 So.2d 201 (La., 1981). There is, however, no duty to provide defense counsel with unlimited discovery. U.S. v. Agurs, supra.

In this case the defendant filed numerous discovery motions. He filed a motion for production, wherein, he requested a transcript of the statements made by Mary De-land to officers of the Ouachita Parish Sheriff’s Office. In the motion he requested, in the alternative, that an in camera inspection be conducted by the court to determine if inconsistent statements had been given by Ms. Deland. He also filed a subpoena duces tecum for these materials. The court conducted a hearing on the defendant’s motion. The court noted that although the law provided for the defendant to be given exculpatory statements, it does not provide for a transcript of the witness’ testimony. After making this remark the judge advised counsel that he reserved the defendant’s right, at trial, to move for production of the witness’ inconsistent statements, if he felt at that time that there were any such statements. The defendant objected to the ruling.

During the interrogation of Ms. De-land, defense counsel moved for “production of prior statements of Mary Beth De-land for purposes of impeachment” and he asked for “an in camera inspection.” The request was denied. This ruling was in error.

The defendant’s request was specific, i.e., “prior statements of Mary Beth Deland, for purposes of impeachment.” Although not phrased in as precise a manner as would be desirable, it was apparent that the request was for inconsistent and exculpatory statements. Since Ms. Deland was the chief prosecution witness and her testimony went directly to the issue of guilt of the defendant, and since the requested information was discoverable, an in camera inspection was warranted.

We, therefore, conclude that in this case, the trial judge should have made an in camera inspection for material inconsistencies and Brady information in the requested statements of Ms. Deland, for use during cross-examination.

Accordingly, we will remand the case to the trial court for its determination of: (1) whether the written or recorded statements of Ms. Deland contain inconsistencies with her trial testimony, or other evidence favorable to the accused; and, if so, (2) whether such evidence is material to the defendant’s guilt or punishment, employing the standard applicable on the basis of the totality of the facts and circumstances of this case, as stated in State v. Sylvester, 388 So.2d 1155 (La., 1980).

In the event of an affirmative determination of both of these factors by the trial court, a new trial will be required. However, upon a contrary finding, the conviction will be affirmed. For purposes of future appeals the statements should be sealed and made a part of the record. The proceedings and determination of the trial court, of course, will be subject to review on appeal.

Next, the defendant argues that he is entitled to statements made by Mary De-land before the Ouachita Parish Grand Jury. He alleges that such statements are inconsistent with her trial testimony. Alternatively, he asks for an in camera inspection of these statements. The defendant sought unsuccessfully to secure this information by a subpoena duces tecum and a motion for production.

The general rule is that the proceedings of the grand jury are to be kept secret. C. Cr. P. Art. 434(A). State v. Sheppard, 350 So.2d 615 (La., 1977). The transcript generally may not be used at trial even in the conduct of cross-examination. State v. Prestridge, 399 So.2d 564 (La., 1981). The purpose of this rule is to encourage the full disclosure of information about crimes. State v. Prestridge, supra.

The testimony of a witness before the grand jury may not be used in Louisiana for cross-examination, unless the testimony requested falls within one of two exceptions mentioned in Code of Criminal Procedure, Article 434. State v. Martin, 376 3o.2d 300 (La., 1979). Cert. den. 499 U.S. 998, 101 S.Ct. 540, 66 L.Ed.2d 297. The exceptions are as follows:

“However, after the indictment, such persons may reveal statutory irregularities in grand jury proceedings to defense counsel, the attorney general, the district attorney, or the court, and may testify concerning them. Such persons may disclose testimony given before the grand jury, at any time when permitted by the court, to show that a witness committed perjury in his testimony before the grand jury. A witness may discuss his testimony given before the grand jury with counsel for a person under investigation or indicted, with the attorney general or the district attorney, or with the court.” C. Cr. Part. 434.

In the case of State v. Peters, La., 406 So.2d 189, this court allowed an inspection in camera, of the grand jury testimony of a state witness who admitted to defense counsel that she had perjured herself before the grand jury. In that case, specific information could be provided to the court of the' existence of inconsistent statements. The Court has consistently held that a trial judge is not required to grant an in camera inspection in response to a defendant’s general request for grand jury testimony. State v. Martin, supra. State v. Lewis, 353 So.2d 703, State v. May, 339 So.2d 764 (La., 1976).

In this case there was no showing that the testimony of Ms. Deland fell within the two previously discussed exceptions to disclosure of grand jury testimony. The request by the defendant merely sought to ascertain whether any such inconsistent statements existed. This is not a sufficient showing by the defendant to impinge upon the secrecy of the grand jury. The trial judge did not err in refusing to order the State to produce Ms. Deland’s grand jury testimony and in refusing an in camera inspection of this testimony.

The defendant presents seventeen assignments of error. The remaining assignments have been reviewed and we find that none of the assignments present reversible error; nor do any involve legal issues not governed by clearly applicable principles of law. The remaining assignments of error are treated in an appendix attached hereto which remains part of the public record of this Court, but which is not for publication with this opinion.

For the reasons assigned, defendant’s conviction and sentence are affirmed, but the case is remanded for further proceedings in accordance with the views expressed herein, reserving unto the trial court the authority to grant a new trial on the basis of his findings, and also reserving the defendant’s right to appeal from any adverse ruling by the trial court.

AFFIRMED CONDITIONALLY AND REMANDED.

       Judge H. Charles Gaudin of the Court of Appeal, Fifth Circuit, and Judges Israel M. Augustine, Jr. and Philip C. Ciaccio of the Court of Appeal, Fourth Circuit, participated in this de-cisión as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.


source: Caselaw Access Project

author: BLANCHE, Justice. DIXON, Chief Justice PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Jessie COMMODORE and Darryl Simms.
    No. 82-K-0073.
    Supreme Court of Louisiana.
    June 21, 1982.
    Rehearing Denied Sept. 17, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Oliver Johnson, Asst. Dist. Atty., for relator.
    Tilden Greenbaum, Martin Regan, Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for respondents.
   BLANCHE, Justice.

Defendants, Jessie Commodore and Darryl Simms, were charged by bill of information with possession of Pentazocine in violation of R.S. 40:969. Prior to trial, defendants moved to suppress evidence seized in a search of Commodore’s automobile. From a ruling by the trial court sustaining the motion to suppress, the state has applied to this Court. We find that the evidence was seized in a search incident to a lawful arrest based on probable cause, and reverse the judgment of the trial court ordering suppression of the evidence.

The facts underlying defendants’ arrests and the search of Commodore’s automobile are as follows: On August 10, 1981 at about 10:00 p.m., two New Orleans police officers met with a confidential informant who stated that he had just witnessed a drug transaction in which “Jessie” was seen buying Talwin. The informant told the officers that “Jessie” was driving a big brown Buick, possibly an Electra, and that he had overheard “Jessie” and his two male companions say that they were going into the 9th Ward to deal the drugs. The informant did not know “Jessie’s” last name, and did not recognize either of the two other men.

About fifteen minutes after receiving this information from the informant, the officers observed an individual known to them as Jessie Commodore driving a brown Buick Electra. Two other males were in the car, which was heading in the direction of the 9th Ward. The officers stopped the vehicle, and asked the driver to step out. Through the open door of the vehicle, the officers could see numerous small aluminum foil packets strewn about the rear seat and floorboard of the car. The other occupants were removed from the vehicle and told to stand with Commodore at the rear of the automobile. Examining the packets, the officers found them to contain sets of T’s and Blues. Commodore and his two companions were advised that they were under arrest for possession of Talwin.

Contending that the officers had illegally stopped the vehicle, defendants Commodore and Simms moved to suppress the Talwin as evidence. At the hearing on the motion to suppress, the state presented the testimony of one of the arresting officers, Addie Fon-guy. Fonguy testified that the confidential informant had been well known to him for two years. Information received from the informant had resulted in approximately ten to fifteen narcotics arrests and convictions during that time. Fonguy stated that the informant had never received compensation in exchange for information, and had never given incorrect information.

Fonguy also testified that he asked the informant if he had personally witnessed the drug transaction in which Commodore acquired the Talwin. The informant responded affirmatively, that he had seen “Jessie” and his companions purchase the drugs. The informant left the scene after Commodore put the packets containing the drugs into his pocket and walked out of the door.

Fonguy further testified that, a few minutes later, he and his partner observed Jessie Commodore driving a brown Buick Electra in the direction of the 9th Ward. The automobile was stopped and the discovery of the Talwin packets resulted. At the conclusion of the hearing on the motion to suppress, the trial court ruled that the officers did not have sufficient cause to stop the automobile, and ordered the suppression of the evidence.

The state contends that information obtained from the confidential informant provided probable cause for the officers to stop the automobile, and that the Talwin was seized in a search conducted incident to a lawful arrest of the vehicle’s occupants. Under this argument, the validity of the seizure of the Talwin will turn upon the authority of the officers to arrest Commodore and his companions.

When a lawful arrest is made on probable cause, a search incident thereto of the person and the area in his immediate control is permissible as one of the well-defined exceptions to the rule that warrant-less searches are per se unreasonable. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Robinson, 342 So.2d 183 (La. 1977); State v. Wichers, 392 So.2d 419 (La. 1980). Probable cause to arrest without a warrant exists when the facts and circumstances within the officer’s knowledge, or of which he has reasonably trustworthy information, are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 So.2d 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Robinson, supra; State v. Edwards, 406 So.2d 1331 (La. 1982). Probable cause must be judged by the probabilities and practical considerations of everyday life on which average men and, particularly, average police officers, can be expected to act. State v. Marks, 337 So.2d 1177 (La. 1976); State v. Edwards, supra.

Also relevant to the evidence in the instant case is C.Cr.P. art. 215.1, which recognizes the right of a law enforcement officer to temporarily detain and interrogate a person whom he reasonably suspects is committing, has committed or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Hathaway, 411 So.2d 1074 (La. 1982). Reasonable cause for an investigatory stop or detention is something less than probable cause, but requires the detaining officer to have sufficient knowledge of facts and circumstances to justify a reasonable suspicion that the person stopped has engaged in criminal activity. State v. Edsall, 385 So.2d 207 (La. 1980); State v. Hathaway, supra. Information obtained from a confidential informant may provide a police officer with reasonable cause to detain and question a suspect. State v. Robinson, supra; State v. Hathaway, supra. In such a case, both the credibility of the informant and the reliability of his information must be sufficiently demonstrated. State v. Brown, 370 So.2d 547 (La. 1979); State v. Hathaway, supra.

Reviewing the evidence in the instant case, we conclude that the officers had reasonable cause to conduct an investigatory stop of the brown Buick Electra. A reliable confidential informant told the officers that he had personally witnessed a Talwin sale. He gave the officers the first name of one of the purchasers and a description of the car in which the men were driving. The informant was also able to provide the officers with the probable destination of the three suspects — he had overheard one of the men say that they were going into the 9th Ward to deal the drugs.

Minutes later, the officers observed a car fitting the description given by the informant and driven by an individual they recognized as “Jessie” (the name of one of the defendants is Jessie Commodore). Two other men were in the car which was headed in the direction indicated by the informant. The officers’ decision to stop the vehicle at that time was based upon reasonable cause, as required by C.Cr.P. art. 215.1.

Officer Ponguy approached the vehicle and asked the driver to step out. Through the open door, both officers clearly observed several small, aluminum foil packets on the rear seat and floor board of the automobile. The officers recognized the packets as common containers of contraband drugs. Discovery of the foil packets, coupled with the other information already within the officers’ knowledge, gave rise to probable cause to arrest the suspects.

An arrest occurs when circumstances indicate an intent to effect an extended restraint on the liberty of an accused, rather than at the precise time an officer tells an accused he is under arrest. State v. Wichers, 392 So.2d 419 (La. 1980); State v. Marks, supra. We are satisfied that the defendants were under arrest when they were removed from the vehicle and ordered to stand at the rear of the car. In a search incident to this lawful arrest, Officer Fon-guy then seized and examined the tin foil packets.

As the Talwin was obtained in a legal manner, the trial court erroneously ordered its suppression as evidence. For the foregoing reasons, the ruling of the trial court on the motion to suppress is reversed and the case is remanded.

DIXON, C.J., and DENNIS, J., concur with reasons.

DIXON, Chief Justice

(concurring).

I respectfully concur.

When the reliable informant told police he had just seen Jessie buy drugs, the police had probable cause to arrest Jessie.

PER CURIAM.

On application for rehearing, counsel calls to our attention that the only witness to testify at the hearing of the motion to suppress, Officer Fonguy, never stated, as reported in the Court’s opinion, that the vehicle he stopped was either brown, or even a LeSabre or an Electra. not did he testify that he or his partner knew that “Mr. Commodore’s” first name was Jessie. Counsel then suggests that if one deletes the words underlined above because they were in fact never testified to by the officer then one would be hard pressed to find reasonable cause for the defendant’s investigatory stop. Counsel would be correct in the observation if all the officer testified to was that he observed “Mr. Commodore coming past us in a downtown direction.” However, Officer Fonguy’s further testimony concerns the information received by him and known to him at the time of his testimony; namely, that he had been advised by a reliable informant that the Buick was brown and either a LeSabre or an Electra, that they (defendants) were supposed to be going to the 9th Ward and possibly another destination and that the individual who was selling the illegal drugs was known to him as Jessie. Officer Fon-guy then testified that he recognized Mr. Commodore from seeing him in the past.

Considering Officer Fonguy’s testimony concerning the information he received and the fact of his having known Mr. Commodore in the past, we believe the evidence supports our finding that the officer had reasonable cause for an investigatory stop or detention of the defendant and the vehicle in which he was riding. For these reasons, the application for rehearing is denied.

DIXON, C.J., not participating.


author: BLANCHE, Justice. CALOGERO, Justice, DENNIS, Justice, WATSON, Justice,

text:
    W. F. HENRY, Jr., et al. v. The BALLARD & CORDELL CORPORATION, et al. Milford A. ROGERS v. Wiley P. BALLARD, Jr., et al.
    No. 81-C-2364.
    Supreme Court of Louisiana.
    July 2, 1982.
    Rehearing Denied Sept. 24, 1982.
    Jerry G. Jones, Jones, Jones & Alexander, Cameron, J. Michael Veron, Scofield, Bergstedt, Gerard, Hackett & Mount, Lake Charles, for plaintiffs-applicants.
    Gene W. Lafitte, John M. Wilson, Lawrence P. Simon, Jr., and Joe B. Norman, Liskow & Lewis, for defendants-respondents. Campbell C. Hutchinson, Anthony M. DiLeo and Jo Harriet Strickler, Stone, Pigman, Walter, Wittman & Hutchinson, New Orleans, William J. Guste, Jr., Atty. Gen., Ernest R. Eldred, Asst. Atty. Gen., Law Offices, Ernest R. Eldred, Baton Rouge, William C. Broadhurst, Broadhurst, Brook, Manghan, Hardy & Reed, Lafayette, Oliver P. Stockwell, Bernard H. McLaughlin, Jr., Stockwell, Sievert, Viccellio, Clements & Shaddock, Lake Charles, William J. Conrad, Frederick W. Veters, John M. McCollam, Andrew L. Gates, III, Gordon, Arata, McCol-lam & Stuart, New Orleans, Robert C. Smith, Karen Katz, Lake Charles, Arthur C. Watson, Watson, Murchison, Crews, Arthur & Cockern, Natchitoches, H. H. Hillyer, Jr., John C. Christian, Kennedy J. Gilly, Jr., Melanie Miller, Milling, Benson, Woodard, Hillyer, Pierson & Miller, New Orleans, C. Murphy Moss, Jr., Loretto M. Babst, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for amici curiae.
   BLANCHE, Justice.

Plaintiff landowners seek to recover outstanding royalty payments allegedly due under several gas leases executed between plaintiffs as lessors and defendants as lessees. Where gas is produced and then sold off the leased premises, the leases provide for royalty payments to the lessors equal to a percentage or fraction of the market value of the gas sold. Definition of the term “market value” in the context of these gas leases is at the heart of this dispute. Defendants have paid royalties based upon the price received from an interstate purchaser pursuant to a long term sales contract executed in 1961. In essence, defendants maintain that the 1961 contract price is equal to the market value of the gas under the royalty provisions of the gas leases. Plaintiffs assert that royalties are to be calculated on the basis of the current market value of the gas, a value greatly in excess of the 1961 contract price.

The issue presented by this litigation was set out by the court of appeal:

Is the amount due the lessors as royalty under these leases to be based upon the prevailing market value at the time the gas was committed to the purchaser by the lessees under a long term gas sales contract, or is the royalty to be based instead upon the current market value determined on a daily basis the moment the gas is produced and/or delivered to the purchaser? Henry v. Ballard & Cordell, 401 So.2d 600 (3rd Cir. 1981), at p. 602.

As noted by the appellate court, this issue is res nova in Louisiana, although it has been the subject of considerable litigation in other jurisdictions. The magnitude of interests affected by its resolution in Louisiana mandated our decision to grant writs in these consolidated cases.

The leases at issue affect property in the Cameron Pass Field in Calcasieu Parish. The royalty provisions of the respective leases read as follows:

Davis Lease No. 1, dated March 19, 1953:
Royalty Provision:
On gas, including casinghead gas or other gaseous substance and liquid hydrocarbon content thereof, produced from said land and sold or used off the premises, or for the extraction of gasoline or other products therefrom, the market value at the wells of one-eighth of the gas so sold or used; provided that on gas sold at the wells, the royalties shall be one-eighth of the amount realized from such sale; ... Davis Lease No. 2, dated December 10, 1960:
Royalty Provision:
One-sixth (⅙) of the market value of the gas sold or used by Lessee in operations not connected with the land leased or any pooled unit containing a portion of said land; .. .
Davis Lease No. 3, dated June 22, 1964: Royalty Provision:
18.5% of the market value of the gas sold or used by Lessee in operations not connected with the land leased or any pooled unit containing a portion of said land;
Rogers Lease, dated September 7, 1962: Royalty Provision:
On gas, including casinghead gas or other gaseous substance produced from said land and sold or used off of the premises, or used in the extraction of gasoline or other product therefrom by Lessee, the market value at the well of one-fourth (¼) of the gas sold or used, provided that on gas sold at the well the royalties shall be one-fourth (¼) of the amount realized from such sale; . . .

The leases were found to be productive of natural gas in 1961. Pursuant to its contractual obligation to diligently market the production, Ballard & Cordell executed a sale of the gas to American Louisiana (now Michigan Wisconsin) Pipeline Company, an interstate purchaser of natural gas and the only available market for gas from the Cameron Pass Field in 1961.

Evidence at trial conclusively established that negotiations between Ballard & Cor-dell and American Louisiana were conducted in good faith and at arm’s length and that the resulting sales contract was quite favorable from the standpoint of both defendants and plaintiffs-lessors. The price obtained in the sale was equal to or better than prices in comparable sales made at that time. The price escalation clause, which provided for price increases over the term of the contract, was among the best contained in any such sale. The sales contract extended for a term of 20 years, a customary term for such contracts in the natural gas industry in 1961. Long term sales contracts (extending for as long as the life of the lease) were universally insisted upon by pipeline purchasers to enable them to obtain requisite financing for the construction of capital intensive pipeline facilities.

Beginning with the first deliveries of gas to American Louisiana, defendants have made royalty payments, to the plaintiffs landowners based on the proceeds actually received for the sale of gas production from the leases under the 1961 sales contract. In 1976, the sales contract price first became out of line with the current market value of natural gas. In 1978, as the disparity between the 1961 sale contract price and prices paid by purchasers in more recent contracts continued to increase, plaintiffs filed this suit for outstanding royalties, contending the leases provide that royalty payments must be calculated on the basis of the current market value of the natural gas.

Plaintiffs’ argument relies heavily on the 1934 case of Wall v. Public Gas Service Co., 178 La. 908, 152 So. 561 (1934). In Wall, this Court was required to interpret a mineral lease royalty clause which provided for royalties based upon “the value of such gas calculated at the market price”. The controversy in Wall centered on whether the royalties were to be calculated on the basis of the market price in the field, or the market price where the gas was sold (a point two miles from the field). In dicta, however, the Wall court adopted Webster’s definition of market price as “the price actually given in current market dealings.” (Emphasis supplied in Wall).

The trial court held that the market value provisions of the royalty clauses at issue require that royalties be paid on the basis of current sales, including sales made in the higher-priced intrastate market, which remained unregulated until 1978. Accordingly, the court ordered defendants to account to plaintiffs from September 1976 through the date of judgment for the difference between proceeds actually received under the 1961 sales contract and the current market value of the gas attributable to the fractional share of plaintiffs.

In its opinion, the trial court adopted the following definition of market value:

“... the market value of a thing is the price which it might be expected to bring if offered for sale in the market.”

On appeal, the Third Circuit reversed the trial court judgment. Acknowledging that the market value of a thing is the price which it might be expected to bring if offered for sale in the market, the court of appeal did not agree with the conclusion of the trial court that the term “market value”, standing alone, clearly means current market value. Instead, the court of appeal found that the parties to these lease contracts “intended for the royalties to be governed by the market value of the natural gas which prevailed in 1961 when the gas was committed to the purchaser under the gas sales contract rather than by the current market value, to be determined on a daily basis as gas is produced and or delivered to the purchaser.” 401 So.2d 600, at p. 604.

For the reasons hereinafter assigned, we affirm the decision of the court of appeal.

The ambiguity in the language of the royalty provisions arises from the failure of the parties to the lease to expressly state whether “market value” means current market value. We note that the same or similar contract language has often been interpreted by the courts of other jurisdictions, and that these eases may be clearly divided according to two distinct lines of legal reasoning.

Although the majority of jurisdictions have interpreted the ambiguity in the royalty provisions against the lessee, they have done so by ignoring the practical realities of the oil and gas industry, and the obligations of the lessee to market the gas at the best possible price at the time the leases were made. These cases hold that the lessee is obligated to pay royalties based upon the current market value of the natural gas, and that this royalty obligation is unaffected by the contracts executed by the lessee for the sale of the gas.

The majority position has been most notably set forth by the Texas Supreme Court in Texas Oil & Gas Corp. v. Vela, 429 5.W.2d 866 (Tex.1968). The mineral lease at issue in Vela provided for royalty payments on gas sold or used off the premises of “Vs of the market price at the wells.” In 1935, two years after execution of the lease, the lessees committed the gas to certain “life-of-the-lease” sales agreements. At the time suit was filed, prices received by others under more recent sales contracts covering gas produced by the same field far exceeded the proceeds generated under the 1935 agreement. The royalty owners contended that the term “market price” as used in the royalty provisions of the mineral lease referred to current prices in the area, rather than the price received under the 1935 sales contract. The Texas Supreme Court agreed.

Noting that none of the royalty owners had ever agreed to accept royalties on the basis of the price stipulated in the gas sale agreements, the Texas Supreme Court held that, regardless of the economic realities inherent in the marketing of natural gas, the royalties* to which the owners were entitled “must be determined from the provisions of the oil and gas lease, which was executed prior to and is wholly independent of the gas sales contracts.” Texas Oil & Gas Corp., supra, at p. 870.

In another portion of its royalty clause, the Vela lease provided for calculation of royalties on casinghead gas on the basis of actual proceeds received from the sale of that type of gas. Citing this language, the Vela court concluded that the parties knew how to provide for royalties payable on some basis other than market value and could easily have done so in the ease of gas well gas. Instead, the parties to the lease “stipulated in plain terms that the lessee would pay ⅛ of the market price at the well of all gas sold or used off the premises. This clearly means the prevailing market price at the time of use or sale. The gas which was marketed under the long-term contracts in this case was not ‘being sold’ at the time the contracts were made but at the time of the delivery to the purchaser, [citation omitted]. We agree with the Court of Civil Appeals, therefore, that the contract price for which the gas was sold by the lessee is not necessarily the market price within the meaning of the lease.” Texas Oil & Gas Corp., supra, at p. 871.

The practical and economic necessities of the oil and gas industry at the time the leases were negotiated are given little or no consideration in the line of cases represented by Vela. Because such factors necessarily would have bearing upon the intent of the parties concerning payment of royalties, the result reached in those cases has been greatly criticized. Among those factors demanding consideration are the following:

(1) Where the mineral lease provides for payment to the lessor of a fractional royalty interest, the lease arrangement is in the nature of a cooperative venture: the lessor contributes the land and the lessee the capital and expertise necessary to develop the minerals for the mutual benefit of both parties. “From this arises the affirmative, although implied obligation of the lessee to market or dispose of the product in a reasonable and prudent way to secure the maximum benefit possible for both parties.”

(2) The ultimate objective of the royalty provisions of a lease is to fix the division between the lessor and lessee of the economic benefits anticipated from the development of the minerals. In the case of oil, a truly fungible product, the lessor is usually given a fractional part of the production, with authority to take or dispose of it as he desires. “Most leases recognize such an arrangement is neither practicable nor realistic for gas. Consequently, they usually contemplate that the lessee will dispose of the gas (in a prudent manner) and pay the lessor the fractional part of the value which he is to enjoy from the enterprise.”

(3) “When most leases currently in production were executed, and certainly until quite recently, it was neither practical nor would it have been prudent for a lessee to refuse to sell the gas under a long-term contract. Such prices were generally higher than the so-called spot or short-term price.”

The Oklahoma Supreme Court in its recent opinion in Tara Petroleum Company v. Hughey, 630 P.2d 1269 (Ok. 1981) took full cognizance of these and other factors in holding:

. . . When a producer’s lease calls for royalty on gas based on the market price at the well and the producer enters into an arm’s-length, good faith gas purchase contract with the best price and term available to the producer at the time, that price is the “market price” and will discharge the producer’s gas royalty obligation. Supra, at p. 1273.

Representative of the minority position on this issue, the Tara court emphasized the duty under which the lessee operates to diligently market gas produced under a lease, and that this duty usually requires the lessee to enter long-term contracts for the sale of the gas.

We have recognized this necessity of the market, and we believe that lessors and lessees know and consider it when they negotiate oil and gas leases. Lessors and lessees also know that during the term of a gas purchase contract gas prices may increase, perhaps substantially. During the term a producer’s revenues, fluctuations in production aside, will not increase. Yet if royalty must be paid on the basis of a “current,” steadily-increasing “prevailing” price, then the lessor’s share will take an ever larger and larger proportion of the producer’s revenues.
* * * * * *
We believe that our interpretation of “market price” is consonant with the intent and understanding of parties to oil and gas leases. And it is the only interpretation that would operate fairly for producers. Moreover, it is not unfair to lessors. Quite naturally, lessors want to receive as much royalty as possible, but lessees in their own interest seek as good a price as they can get for gas. As long as the contract was reasonable when entered into, and as long as our law recognizes long-term gas purchase contracts as binding in the face of escalating prices, the law should not penalize the producer who was forced into the contract in large measure by his duty to the lessor. Now if the contract was not reasonable when entered into, if it is not at a minimum fair and representative of other contracts negotiated at the time in the field, then a different result obtains. Then the lessee has not protected his lessor in discharging his duty to market the gas, and there is no policy in the law requiring the courts to protect the lessee in interpreting the lease. Supra at pp. 1273 and 1274.

Like the Oklahoma court in Tara, we believe that ambiguity in royalty provisions such as those at issue in this litigation cannot be resolved without consideration of the necessary realities of the oil and gas industry. Strong support is found for this minority position in the articles of our civil code applicable to the interpretation of contracts. See C.C. arts. 1945, et seq. and C.C. arts. 1964, 1966.

Article 1950 of the Civil Code directs us to endeavor to ascertain the common intention of the parties to the contract, where there is anything doubtful in their agreement. In ascertaining this intention (where it cannot be adequately discerned from the contract or agreement as a whole) the circumstances surrounding the parties at the time of contracting are a relevant subject of inquiry. Cooley v. Meridian Lumber Co., 195 La. 631, 197 So.2d 255, 258 (1940). In the instant cases, the known obligation of the lessee to market discovered gas reserves, and the accepted universal practice of marketing such reserves under long-term gas sales contracts provide the background against which these leases were executed.

The custom of the industry may also be considered in determining the true intent of the parties as to ambiguous contract provisions. C.C. arts. 1964, 1966; Fee v. Vancouver Plywood Co., Inc., 331 So.2d 151 (La.App. 3rd Cir. 1976), writ den. 334 So.2d 434 (1976). At trial, defendants presented unrefuted evidence that customary practice in the oil and gas industry required the lessee to pay “market value” royalties on gas in dollar amounts equivalent to the price received under a long-term sales contract (less permissible transportation charges), and the lessors to accept royalty payments so calculated.

Applying the pertinent rules of contract interpretation to the evidence presented in these cases, we find the parties to the mineral leases at issue intended that royalties based on the “market value” of the gas be computed on the basis of the price received for the gas under the 1961 sales contract.

We emphasize that plaintiffs-lessors have never contended in these cases that the 1961 gas sales contract was not made in good faith, or was unreasonable in any respect, whether as to price, contract term or otherwise. On the contrary, when the gas was discovered in 1961, because of the geographical isolation of the Calcasieu Pass Field, there was but one economically feasible market for the gas — the interstate pipeline of American Louisiana. American Louisiana would only agree to purchase the gas under a 20-year sales contract. Uncon-tradieted evidence at trial established that the price obtained by defendants in the 1961 sale was equal to or better than prices obtained in similar sales in the relevant market area at that time.

As noted by the court of appeal:
The effect of holding in plaintiffs’ favor would be to force the lessees to pay to the lessors many times more for their fractional royalty interests than the lessees actually received for all the gas. 401 So.2d at 608.

We do not propose to penalize defendants’ good faith compliance with their lease obligations by requiring them to pay royalties based on a current, fluctuating, day-today market value of gas several times higher than the price received by them in a sales contract admittedly in the best interest of both lessors and lessees. Had plaintiffs shown that the purpose of the market value royalty clause was to provide them with protection as to price, regardless of what disposition is made of the gas by lessee and regardless of what price was received, then we would arrive at a different conclusion.

But plaintiffs have given us little help, except to claim that we have departed from our long-standing position in Wall, supra. As noted by the court of appeal, the Wall court was not concerned with whether the current market price, as opposed to a past market price was to be used in determining royalty amounts. Apparently, all parties in Wall agreed that the royalties were to be based upon the current market price at the time the gas was produced. None of the parties in Wall introduced evidence of a contrary intent.

In the instant case, only defendants have presented evidence of the intent of the parties to the mineral lease. All of this evidence indicates that the parties intended for a past, rather than a current, market value to control computation of royalties. As did the court of appeal, we find the Wall case clearly distinguishable on this basis.

Therefore, considering all of the circumstances set forth hereinabove which surrounded the parties at the time of contracting, the known obligation of the lessee to market discovered gas reserves, and the accepted, universal practice of marketing such reserves under long-term gas sales contracts, “market value” in the context of these leases could only mean the “market value of the gas when it was marketed under the 20 year gas sales contract.

For the foregoing reasons, the decision of the court of appeal is affirmed.

AFFIRMED.

CALOGERO, J., assigns additional concurring reasons.

DENNIS and WATSON, JJ., dissent and assign reasons.

LEMMON, J., dissents and will assign reasons.

CALOGERO, Justice,

assigning additional concurring reasons.

I subscribe to the majority opinion and am also in accord with the Court of Appeal opinion in this case. I submit these additional comments to accent what I appreciate to be the holding of the majority.

As I understand the majority opinion, it does not determine that for all parties to a mineral lease containing the term “market value” that that term will be interpreted as meaning the price in the gas sales contract. To the contrary, the determinations made in the majority opinion are expressly limited to the cases under consideration. The Court held:

Applying the pertinent rules of contract interpretation to the evidence presented in these cases, we find the parties to the mineral leases at issue intended that royalties based on the “market value” of the gas be computed on the basis of the price received for the gas under the 1961 sales contract.
Had plaintiffs shown that the purpose of the market value royalty clause was to provide them with protection as to price, regardless of what disposition is made of the gas by lessee and regardless of what price was received, then we would arrive at a different conclusion.
******
In the instant case, only defendants have presented evidence of the intent of the parties to the mineral lease. All of this evidence indicates that the parties intended for a past, rather than a current, market value to control computation of royalties.

Thus it is clear that the majority relied on its understanding of the intent of the parties in entering into the lease agreement in determining what was meant by “market value” as used in the leases under consideration. The record in this case clearly supports that determination. Plaintiffs presented no evidence of their intentions in entering into these agreements, but relied solely on their argued interpretation of the contractual language. The defendants presented unrefuted expert testimony of the prevailing view in the industry that “market value” as used in gas leases at that time did not mean current market value. One of the experts was of the view that he did not believe that any lessee would knowingly enter into a lease with a royalty provision that obligated him to pay royalties based on a day to day market value. Therefore, the majority is determining nothing more today than that, as between these parties, the lessee satisfies his obligation under their contract to pay royalties to the lessor based on “market value” when he pays those royalties based on the price he is receiving under a gas sales contract where the lessee entered into an arm’s length, good faith gas purchase contract with’ the best price and term available to the lessee at the time he entered it.

Furthermore, contrary to the views expressed by my dissenting brothers, there is no evidence in this record to support the conclusion that the leases were not “negotiated”, or that the lessees prepared, initiated or proposed the agreements. All but two of the leases involved in this litigation are standard Bath form leases, in use generally throughout the Calcasieu area at that time. There is no evidence at all concerning preparation of the other two leases. Notwithstanding the fact that the record does not establish that the lessees prepared these leases, the dissenting Justices seem to be of the view that as a general proposition, mineral leases are to be construed against the lessees. While that may be the prevailing view in Kansas, this Court disapproved of such a per se rule in Hunt Trust v. Crowell, 210 La. 945, 28 So.2d 669 (1946).

Consternation is expressed by the dissenters over the “evidentiary burden” which is placed on all lessors by the majority opinion. I find it difficult if not impossible to conclude that such an arduous evidentiary burden is created by this case. The simple facts here are that the lessors have not even contended that, at the time they entered into the leases, they thought “market value” meant or intended to mean current market value, day to day (or for that matter, month to month, or year to year), rather than the market value at the time the gas was committed in the gas sales contracts.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The majority’s decision is not based upon existing rules of law and the evidence in this case. It is judicial lawmaking in a broad form, and it adopts a rule which will affect virtually every lease under which gas is produced.

The majority has fallen into error in this very important mineral rights case in the following respects: (1) The lease provisions at issue are not ambiguous. (2) As ably demonstrated by Justice Watson in his dissenting opinion, and by several of the briefs filed herein, even if the lease provisions were ambiguous, Louisiana law requires that the contracts be construed against the producer-lessees who initiated and proposed the agreements. (3) Even if the lease provisions were ambiguous, and even if Louisiana law did not require that the contracts be construed against the lessees the evidence in the record still does not support a finding that the landowners knowingly entered a “cooperative venture” under which their royalties would be tied to either the lessors’ resale price or the 1961 market values for the life of the leases. (4) Indeed, the majority does not attempt to determine the intention of the parties to the contracts from the evidence in this case. Instead, citing an Oklahoma Supreme Court opinion as its authority, the majority judicially decrees that all oil and gas leases in Louisiana are essentially joint ventures and that every lessor is entitled only to share in the proceeds of the producer’s good faith sales to third parties, regardless of whether the sales are at market value or otherwise. The majority thus creates a presumption that every mineral lessor intends to be bound by the price obtained for gas by his lessee. Furthermore, the opinion of the court provides that a lessor-landowner must prove fraud in order to rebut the presumption.

In my opinion the lease provisions are not ambiguous. In Louisiana and other states “market value” means what a willing buyer would pay a willing seller in a free and open market. It does not mean “resale price” or “market value at the time of commitment to long term contract.” When each lease was contracted, if the parties had intended that royalties would be based on the producer’s resale price, or on a market value frozen on a certain date, they would have said so. I believe that a reasonable lessor in 1961 would have thought that the lessee’s promise to pay royalty based simply on market value obligates him to pay market value for gas when it is produced and reduced to possession. The lessee cannot transfer title to the gas prior to this time because he does not obtain title until the minerals are under his physical control. La. R.S. 31:7 and Comment. Only an objective current market value standard affords the landowner any real protection against inflation, fraud or collusion.

Although I do not find the lease provisions ambiguous, I agree with Justice Watson that in the event of any doubt the contracts must be construed in favor of the lessor-landowner. In addition to the authorities he cites, the following should be noted: (1) If the doubt or obscurity arise for the want of necessary explanation which one of the parties ought to have given, the construction most favorable to the other party shall be adopted. La. C.C. art. 1958. The lessee was clearly in a better position to clarify any ambiguity in the royalty provisions of the leases. The lessee, not the lessor, contemplated entering into a long term agreement to supply gas to a third party at a fixed rate after promising the lessor to pay royalties at market value. The lessee, therefore, ought to have given the lessor an explanation that because of his proposed agreement with third parties he could not and did not intend to pay royalty at fair market value but at a percentage of his resale price. (2) Where a layman contracts with a knowledgeable and experienced businessman, the burden is on the latter to point out obscurity in the contract. Larriviere v. Roy Young Inc., 333 So.2d 254 (La. App. 3d Cir. 1976); see Leithman v. Dolphin Swimming Pool Co., 252 So.2d 557 (La. App. 4th Cir. 1971). (3) A contract should not be so construed as to render important expressions meaningless. La. C.C. art. 1951; Glassell v. Richardson Oil Co., 91 So. 431, 150 La. 999 (1922); Crow v. Southern Natural Gas Co., 210 So.2d 596 (La. App. 2d Cir. 1968); Jacob Fallo, Inc. v. Durr, 4 La.App. 155 (Orleans 1926); Bahns v. Ernest A. Carrere Co., 13 Orl.App. 290 (1916).

Ultimately, however, the most harmful aspect of the majority opinion overshadows its mishandling of the ambiguity issues. If my brethren merely had found a clear contract ambiguous and resolved the doubt against the wrong party, their holding would be restricted to this case and others dealing with similar lease provisions. Instead, they have announced a broad new rule of law which provides that an oil and gas lease is a “cooperative venture” and that the producer cannot be required to pay royalty at a higher rate than he sells the gas for, unless the landowner can prove fraud or unless, perhaps, the landowner-lessor can by parol evidence prove the parties specifically discussed and understood that the market value royalty clause was to provide the lessor with protection as to price. The practical effect of this rule of law is to strip landowner-lessors of any protection under virtually all market value royalty clauses and to require that their compensation for minerals produced from their lands shall be governed exclusively by dealings between the lessees and other parties. I know that my brethren do not think this rule will work an injustice in this case, but the precept they announce today will apply to a diversity of situations in which landowners may be unable to rectify real injustice because of the evidentiary burden it places upon them.

WATSON, Justice,

dissenting.

The majority's opinion is both legally unsound and patently unfair.

The evidence was that these leases were not negotiated. An offer was made to the landowners on the terms and conditions set out in the printed contracts. The landowners’ only choice was acceptance or rejection. After admitting that the royalty provisions are ambiguous, the majority construes the language against the landowners, who had no voice in drafting the terms. The trial court correctly construed these contracts against the lessees who supplied them. Mallett v. Union Oil & Gas Corp., 232 La. 157, 94 So.2d 16 (1957). Gas leases are generally strictly construed against the lessee producer. Lightcap v. Mobil Oil Corp., 221 Kan. 448, 562 P.2d 1 (1977).

The record and the jurisprudence offer scant support for the majority’s contention that the “custom of the industry” shows market value to be the value of the gas at the time a sales contract is confected. The trial court refused to accept the “self-serving position of the industry” on this point. (Tr. 180)

Most jurisdictions define market value on a current basis. Foster v. Atlantic Refining Company, 329 F.2d 485 (1964); Texas Oil & Gas Corporation v. Vela, 429 S.W.2d 866 (1968); Lightcap v. Mobil Oil Corp., supra; Exxon Corp. v. Middleton, 613 S.W.2d 240 (Tex., 1981). In the past, so has Louisiana. Wall v. United Gas Public Service Co., 178 La. 908, 152 So. 561 (1934). Also see F.E.R.C. v. Pennzoil Producing Co., 439 U.S. 508, 99 S.Ct. 765, 58 L.Ed.2d 773 (1979).

In adopting a minority interpretation of these leases, the majority acts to the detriment of the State of Louisiana and its residents as well as these particular plaintiffs.

I respectfully dissent.

      . See e.g. Foster v. Atlantic Refining Company, 329 F.2d 485 (5th Cir. 1964); Texas Oil & Gas Corp. v. Vela, 429 S.W.2d 866 (Tex. 1968); Lightcap v. Mobil Oil Corp., 221 Kan. 448, 562 P.2d 1 (1977), cert. den. 434 U.S. 876, 98 S.Ct. 228, 54 L.Ed.2d 156 (1977), motion for rehearing denied, 440 U.S. 931, 99 S.Ct. 1272, 59 L.Ed.2d 489 (1979); Tara Petroleum Corp. v. Hughey, 630 P.2d 1269 (Okla. 1981).

      . The implied covenants which burden the lessee’s interest include, among others, the covenant to protect the lease from being drained of hydrocarbons, the covenant to reasonably develop the leased premises, the covenant to market production obtained from the leased premises with dispatch, the covenant to use reasonable care in operations conducted on the lease, and when appropriate, the covenant to seek favorable administrative action to aid the discharge of the lessee’s duties under the lease. See R.S. 31:122.

      . “Unlike liquid hydrocarbons, gas cannot be stored in surface containers, nor can it be transported by truck. Rather, gas normally is marketable only when the reserves in the field where the lease is situated justify the sizeable capital expenditure necessary to construct and lay a pipeline capable of transporting the gas to its market destination. Pipeline systems, of course, are complex creatures and are quite expensive to construct. Investors traditionally have not been willing to build pipelines unless gas is available in a sufficient quantity and has been committed to the pipeline for an adequately long period, thereby providing the investors with reasonable assurance that they will make a profit on their investment. Thus, the justification for the capital expenditure necessary to construct the pipeline usually comes in the form of long-term gas sale contracts which effectively commit the volume of gas to be sold to the purchaser who will transport the gas through its pipeline to the point of consumption.
      Holliman, Exxon Corp. v. Middleton: Some Answers but Additional Confusion in the Volatile Area of Market Value Gas Royalty Litigation, 13 St. Mary’s L.J. 1 (1981).

      . See, e.g. Texas Oil & Gas Corp. v. Vela, supra; Lightcap Mobil Oil Corp., supra; Exxon Corp. v. Middleton, 613 S.W.2d 240 (Tex. 1981).

      . The Texas Supreme Court recently affirmed its Vela doctrine in Exxon Corp. v. Middleton, supra.

      . As in the instant case, the lessees in Vela presented evidence there was only one available market for the gas at the time of its discovery; the gas could only be sold pursuant to a life-of-the-lease sales agreement. The trial court found that the sales agreements were entered into in good faith and that finding was not attacked on appeal.

      . The Texas Supreme Court in Vela relied heavily upon the decision by the 5th Circuit Court of Appeal in Foster v. Atlantic Refining Company. Analysis of the 5th Circuit’s opinion in Foster indicates that reliance is misplaced. In Foster, the court was required to interpret an atypical royalty clause calling for market price when the gas is run. The Foster court emphasized that the clause expressly provided for the payment of royalty based upon the market price prevailing in the field where the gas was produced at the time of delivery. Such an express provision is conspicuously absent in the type of royalty clauses interpreted by the Courts in Vela and its progeny.

      . See Harrell, Developments in Non Regulatory Oil & Gas Law, The 30th Annual Institute on Oil & Gas Law & Taxation, Southwestern Legal Foundation, 311 (1979); Summers, The Law of Oil & Gas, Sec. 589, p. 12, ef seq. (1981 Supp.); Holliman, Exxon Corp. v. Middleton: Some Answers but Additional Confusion in the Volatile Area of Market Value Gas Royalty Litigation, 13 St. Mary’s L.J. 1 (1981); Fischer, Ascertaining the Value or Price of Gas for Purposes of the Royalty Clause, 21 Okl.L.Rev. 22 (1968).

      . Harrell, Developments in Non Regulatory Oil & Gas Law, supra.

      . Id. at p. 335. Indeed, professor Harrell contends that:
      ... any determination of the market value of gas which admits the lessee’s arrangements to market were prudently arrived at consistent with the lessee’s obligation, but which at the same time permits either the lessor or lessee to receive a part of the gross revenues from the property greater than the factional division contemplated by the lease, should be considered inherently contrary to the basic nature of the lease and be sustained only in the clearest of cases. At p. 336.

      . Id. at p.335.

      . Andrews Coal Co. v. Bd. of Directors of Public Schools, Parish of Orleans, 151 La. 695, 92 So. 303, 304 (1922). In interpreting a contract “it should be construed in the light of the circumstances surrounding [the parties] at the time it is made, it being the duty of the court to place itself as nearly as may be in the same situation of the parties at the time, so as to view the circumstances as they viewed them, and so to judge the meaning of the words and the correct application of the language of the contract. [Quoting from 13 Corpus Juris, p. 525]. See also Arts. 1945, 1950, 1951, 1955 and 1956.

      . Art. 1964. Incidents Supplied by law, equity or usage. Equity, usage and law supply such incidents only as the parties may reasonably be supposed to have been silent upon from a knowledge that they would be supplied from one of these sources.

      . Art. 1966. Usage as part of contract. By the word usage mentioned in the preceding articles, is meant that which is generally practiced in affairs of the same nature with that which forms the subject of the contract. ..

      . It is unclear from the majority opinion whether the lessor-landowner is bound by the lessee’s resale price or by the market value at the time the lessee commits himself to a longterm gas purchase contract with a third party.

      . Sartor v. United Gas Public Service Co., 186 La. 555, 173 So. 103 (1937); Harman v. Defatta, 182 La. 463, 162 So. 44 (1935); Wall v. United Gas Public Service Co., 178 La. 908, 152 So. 561 (1934); State, Through Dept. of Highways v. Gifford Hill & Co., 158 So.2d 448 (La. App. 2d Cir. 1963); Orleans Parish School Board v. Brown, 154 So.2d 545 (La. App. 4th Cir. 1963); State, Through Dept. of Highways v. Rapier, 152 So.2d 448, 449 (La. App. 2d Cir. 1963); United States v. Certain Property in Borough of Manhattan, 403 F.2d 800 (2d Cir. 1968); Exxon Corp. v. Middleton, 613 S.W.2d 240 (Tex. 1981); Matter of Estate of Romnes,
        398 A.2d 543, 79 N.J. 139 (1979); State Dept. of Highways v. Schumaker, 590 P.2d 1110 (Mont. 1978); Morrison’s Estate v. Idaho State Tax Commission, 572 P.2d 869, 98 Idaho 766 (1977); Massey v. Tube Art Display, Inc., 551 P.2d 1387, 15 Wash.App. 782 (1976); In re Voss’s Estate, 303 N.E.2d 9, 55 Ill.2d 313 (1973); Davis v. State Dept. of Public Health and Welfare, 483 S.W.2d 775 (Mo. 1972); Tome Land & Imp. Co. v. Silva, 494 P.2d 962, 83 N.M. 549 (1972); Valley Forge Golf Club, Inc. v. Board of Assessment and Revision of Taxes of Montgomery County, 285 A.2d 213, 3 Pa. Comwlth. 644 (1971); 0.744 of An Acre of Land, City of Wilmington v. State ex rel. State Highway Dept., 251 A.2d 341 (Del. 1969); Whitworth v. State Highway Commission, 161 S.E.2d 698, 209 Va. 95 (1968); Appropriation for Highway Purposes of Lands of Landsford, 239 N.E.2d 110, 113, 15 Ohio App.2d 131 (1968); Rau v. Fritz, 134 N.W.2d 773, 81 S.D. 311 (1965); Bond v. State, 263 N.Y.S.2d 732, 24 A.D.2d 778 (1965); Arkansas State Highway Commission v. Stanley, 375 S.W.2d 229, 237 Ark. 664 (1964); Shirley v. Menit, 364 P.2d 192, 147 Colo. 301 (1961); Popwell v. Shelby County, 130 So.2d 170, 272 Ala. 287 (1961); State Roads Commissioner v. Warriner, 128 A.2d 248, 211 Md. 480 (1957).


author:
LEMMON, Justice.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Kenneth J. SHARP, Jr.
    No. 81-KA-2385.
    Supreme Court of Louisiana.
    July 2, 1982.
    Rehearing Denied Oct. 1, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Pat Leitz and Abbott J. Reeves and William C. Credo, Asst. Dist. Atty., for plaintiff-appellee.
    Fred Kleppner, Grisbaum & Kleppner, Metaire, for defendant-appellant.
   LEMMON, Justice.

In this case a Vietnam veteran was convicted of first degree murder of his aunt’s husband during an incident in which the aunt was also killed and her child injured by stabbing. His appeal primarily presents the issue of the sufficiency of the evidence supporting the jury’s rejection of defendant’s plea of not guilty by reason of insanity from Vietnam Syndrome.

The facts are essentially undisputed. Defendant worked as a mechanic following his graduation from high school. He was drafted into the army, and he served in an infantry company, which was involved in extensive combat during the Vietnam War. According to the medical history given by his psychiatrist, defendant encountered the carnage of that ill-fated jungle battleground during the approximately 11 months he served in Southeast Asia. He apparently killed many enemy soldiers and saw many of his comrades killed. The record left little doubt that this young conscript infantry soldier was indelibly scarred psychologically by his confrontations with death and destruction. Whether those “psychological scars” rendered him incapable of distinguishing right from wrong, when faced with a physical assault ten years later, was the crucial issue for the jury at his trial.

After he returned to civilian life, defendant began to date a young woman named Betty Bobinger, who was the sister of Joseph Bobinger, his aunt’s husband. Betty, who had two children from a prior union, and defendant married and had a child of their own, and defendant also adopted the two other children. Although defendant was apparently a very diligent worker and good provider, the marriage was marred by a series of episodes during which defendant would seemingly explode with rage. These episodes usually resulted in defendant’s beating his wife, but on at least one occasion defendant threatened suicide and threatened to harm his children. Although authorities contacted during these episodes advised defendant to seek professional guidance, he was never really evaluated by psychiatrists until the killings which resulted in his arrest.

Eventually defendant’s wife, after time and again forgiving his outbursts, decided to conclude the marriage. She moved in with Joseph and Bernadine Bobinger, her brother and sister-in-law. Because his wife and children obviously meant a great deal to him, defendant was very upset about the separation.

On the evening of February 16, 1980, defendant began drinking at his home. He called his wife several times, and his temper grew worse with each call. At about 9:30 p.m., after consuming several drinks, he went to the Bobinger residence, parking his truck around the corner. As he arrived, his children were leaving with friends to attend an evening parade. After the friends left with the children, defendant’s wife told him to leave, but he followed her into the house. An argument erupted when defendant noticed that his estranged wife was not wearing her wedding ring, and he struck her. When she noticed that defendant’s open knife was lying on the sofa near him, she fled into another room.

Hearing the commotion, Joe and Bernadine Bobinger entered the room and ordered defendant to leave their home. When he refused, they shoved him toward the door. In the violent encounter which followed, defendant was scratched and struck. At that point, he obviously became enraged and lunged at Mrs. Bobinger with a knife, inflicting a fatal stab wound in her chest. Mr. Bobinger grabbed defendant, and they fought over the knife. During the struggle Mr. Bobinger suffered multiple stab wounds, one of which severed a major blood vessel. The ferocity of the wounds indicated that they were inflicted by a person trained to kill with a knife.

The Bobinger’s son attempted to intervene on behalf of his parents, but fled when defendant turned the knife toward him. As young Joseph Bobinger, Jr. ran for his life from his house, he noticed defendant also in flight. Defendant ran down the street and disappeared into the night.

The Bobinger youth returned home to find a nightmarish scene. His mother and his father were still alive in the midst of their blood soaked living room, but despite prompt police and medical assistance, both Mr. and Mrs. Bobinger died soon after defendant’s attack.

In the meanwhile, defendant had gone to a convenience store, where he contacted out-of-state relatives and then waited for the police to arrive. He was taken into custody and advised of his rights, after which he admitted that he had stabbed Mr. Bobinger, but claimed he didn’t know whether he had stabbed Mrs. Bobinger. He blamed the stabbings on his drunkenness.

He was subsequently indicted for first degree murder and entered pleas of not guilty and not guilty by reason of insanity.

During his trial two psychiatrists and a clinical psychologist opined that defendant, as a result of his battlefield experiences, was suffering from a “post-traumatic stress disorder”. One of the psychiatrists and the psychologist also testified that defendant was suffering from paranoid schizophrenia. Psychological test results showed that defendant was aggressive, particularly when under stress or when drinking. The thrust of the testimony of the defense experts was that defendant, when confronted with the stress of being rejected by his wife and then being assaulted by her relatives, in effect acted in a “state of primitive rage” based on a “survival instinct”. As one of the psychiatrists put the matter, defendant “resorted to survival tactics, just striking out blindly, and not knowing what he was doing was wrong”.

The defense experts portrayed defendant’s mental condition as an uncontrollable sort of “rage reaction”, during which time defendant was incapable of distinguishing right from wrong. All three acknowledged upon cross-examination that defendant probably was sane (in that he knew right from wrong) when he first arrived at the Bobinger residence, as well as when he was interviewed by the police a couple of hours after the killings. Thus, the jury was in effect presented with a temporary insanity defense.

In rebuttal the state called a psychiatrist, who differed radically in his assessment of defendant’s psychiatric condition. The state’s expert described defendant as having an “explosive personality disorder”. He opined that defendant was nervous and had problems with his temper that worsened after his Vietnam experiences. He was convinced, however, that defendant was able to control his anger to a great extent, confining his temper displays to his wife and family. The doctor was satisfied from his evaluation that defendant was not schizophrenic and was aware of the difference between right and wrong at the time of his knife attack on the Bobingers. He noted that it was hard to imagine that defendant thought his aunt was a threat to his life.

The jury was thus required to decide the case on the basis of this conflicting expert testimony, as well as similarly conflicting lay evidence. Defendant’s father, mother and brother described “abnormal” conduct by him following his return from the military, while his wife testified that his behavior was essentially normal.

The jury rejected the insanity defense and found defendant guilty as charged, subsequently recommending that he be sentenced to life imprisonment. The trial court denied defendant’s motion challenging the jury’s verdict, and defendant appealed.

The issue presented is whether the evidence, viewed in a light most favorable to the state, was such that a rational juror could have found that defendant failed to prove his insanity by a preponderance of evidence. See State v. Claibon, 395 So.2d 770 (La.1981); State v. Roy, 395 So.2d 664 (La.1981); State v. Lee, 395 So.2d 700 (La.1981).

In the Roy case, thereíwas no substantial conflict in the evidence,-'and this court concluded that no rational juror, viewing the evidence in the light most favorable to the prosecution, could have found that defendant failed to prove by a preponderance of the evidence that he was insane at the time of the offense.

In the present case, the evidence (particularly the medical evidence) was in substantial conflict, and there was ample evidence to support either verdict the jury decided to render. When there is conflicting evidence on the issue of insanity at the time of the offense, the reviewing court should accord great weight to the jury’s resolution of the conflicting evidence (as long as the jury was properly instructed and no evidence was prejudicially admitted or excluded), and the jury’s verdict should not be overturned unless no rational juror could have found, on the evidence viewed in the light most favorable to the prosecution, that defendant failed to prove by a preponderance of the evidence his insanity at the time of the offense.

We cannot conclude in the present case that the evidence was insufficient for the jury to reject the opinions of the defense experts that defendant became “temporarily insane” when he killed the two victims. There was ample evidence to support the jury’s resolution of the conflicting testimony. The burden of proof was upon defendant, and the jury’s finding that defendant failed to carry that burden was not without support in the record.

Because there was evidence to support either verdict the jury decided to render, it is important to review defendant’s other major assignment of error concerning factors which might have improperly affected the jury’s decision. These assignments of error relate to the state’s questions of the defendant’s expert and the state’s reference in oral argument concerning the prospects of release back into society of a person found not guilty by reason of insanity.

During the trial the prosecutor questioned defendant’s expert concerning a verdict of not guilty and not guilty by reason of insanity as follows:

“Doctor, you said that you spent some time working in the mental institution at Jackson?”
“Yes, I was there about a year.”
“Do you know what happens to people who are found guilty, after an opinion has been given that they are able to go back out into society?”

Defense counsel objected. The trial judge at first overruled the objection, but then sustained it, advising the jury that he would instruct them on the law relating to the handling of a person found not guilty by reason of insanity.

The prosecutor then asked, without objection, if defendant in his opinion could ever return to society. When the doctor testified that defendant could conceivably return to society, the following colloquy occurred:

“Q. But there is a possibility that he could slip back into the active paranoid schizophrenia?”
“A. Yes, it’s possible.”
“Q. It’s quite possible that he could come into a stressful situation again, isn’t it?”
“A. Yes.”
“Q. And it’s possible that he could kill again, isn’t it?”

Defense counsel objected and moved for a mistrial. The trial judge sustained the objection and instructed the jury to disregard the last question, but denied the motion for mistrial.

During closing argument, the prosecutor made the following remarks:

“First, Joseph Bobinger died by bleeding to death. Walked around, talked, spoke to his young child while he was standing there dying in front of him. The blood was draining from his body until there was nothing left — ”

Defense objected to prosecutor’s remark, argued that the prosecutor intended to inflame the jury and moved for a mistrial. The trial judge denied defense counsel’s motion and cautioned the prosecutor not to go beyond the evidence.

During rebuttal argument, the prosecutor stated:

“And yes, ladies and gentlemen, if this man is found not guilty by reason of insanity he will be sentenced to an insane asylum and after six months he can be released back into society, back on the street, back where a stress problem might cause him to murder maybe one, maybe two, maybe three people the next time. In six months, ladies and gentlemen, he can be released. I submit to you that if he is released you better grab the babies and lock up the doors — ”

Defense counsel objected and again moved for a mistrial. The trial judge sustained the objection and instructed the jury to disregard the remarks, but denied the motion for mistrial.

Defense counsel argues that the prosecutor’s remarks were inflammatory and designed to prevent the jury from returning an obvious verdict of not guilty and not guilty by reason of insanity.

The trial judge properly handled the questioning of defendant’s expert concerning the possibility of future release. The trial judge sustained the objection to the first inquiry, stating that he would instruct the jury as to the law. When the prosecutor later asked the argumentative question about the possibility of defendant’s killing again, defense counsel immediately objected, and the trial judge properly sustained the objection and admonished the jury to disregard. While the question was improper, it was not so prejudicial as to warrant the drastic remedy of mistrial, and the trial judge correctly ruled that the admonition was sufficient.

The comments during closing argument present a more difficult question, particularly the comment about grabbing the babies and locking the doors, which not only argued outside the record, but also appealed to fear. Nevertheless, this court has not reversed convictions because of improper closing arguments unless thoroughly convinced that the remarks influenced the jury and contributed to the verdict.

The comment must be considered in the context of the entire closing argument and in the light of the trial court’s subsequent instruction on the issue. The comment, which came at the outset of rebuttal argument, brought on an immediate objection, which the trial judge quickly sustained and admonished the jury to disregard. Thereafter, the prosecutor properly confined his argument to the evidence and lack of evidence and the reasonable conclusions that may be drawn therefrom. The judge then instructed the jury at length about the statutory procedure for handling a person who is found to be not guilty by reason of insanity.

The comment was improper, and we denounce such tactics. Nevertheless, we cannot say that the trial court abused his discretion in refusing to order a mistrial after admonishing the jury to disregard the comment. See State v. Dupre, 408 So.2d 1229 (La.1982).

The conviction and sentence are affirmed.

DENNIS, J., dissents with reasons.

AUGUSTINE, J., ad hoe, dissents and will assign reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The prosecutor’s questions and remarks deprived the defendant of a fair trial. Because of his questions and remarks, I am “thoroughly convinced,” if that is the standard this court applies, that the defendant was not tried on the question of whether he knew the difference between right and wrong but on the legally irrelevant question of whether “a stress problem might cause him to murder ... maybe three people the next time.” Furthermore, at least in a capital murder prosecution, in which a higher degree of certainty is required, this court should apply a more stringent standard to prosecutorial misconduct. We should be thoroughly convinced that comments which we denounce and think are wholly improper did not influence the jury and contribute to the verdict. See State v. Gibson, 391 So.2d 421 (La.1980). Otherwise, our denunciations will be perceived as hollow and lead to deprecation of the law and the judgments of this court.

       Judge H. Charles Gaudin of the Court of Appeal, Fifth Circuit, and Judges Israel M. Augustine and Philip C. Ciaccio of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, with Associate Justices Calogero, Dennis, Watson and Lemmon.

      . See R.S. 14:30(3), which defines first degree murder as the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm upon more than one person.

      . Defendant’s other contentions lack any arguable merit and are treated in an unpublished appendix which is attached to this opinion and is part of the official record in this case.

      . The facts regarding defendant’s background and military service were presented in the testimony of his parents and brother and in that of the expert witnesses who related what defendant had told them. Defendant did not testify in his own behalf.

      . A counselor for the-Veterans Administration was also permitted to testify as to his conversations with defendant concerning defendant’s battlefield experiences. The counselor was permitted to testify as an expert in social work, specializing in counseling veterans who suffered from emotional problems.

      . Defense counsel does not argue that defendant acted in self-defense. R.S. 14:20. Defendant was unlawfully attacking his wife when the victims intervened. R.S. 14:22. As the aggressor, he was not entitled to claim self-defense.. R.S. 14:21.

      . She testified that his behavior was essentially normal other than when, after brooding, he flew into a state of rage and beat her. She portrayed him otherwise, not unsympathetically, as a loving father and good provider for his family.

      . In Louisiana, the Legislature has adopted the traditional rule in McNaughten’s case, R.S. 14:14, and has placed the burden of proof on defendant. C.Cr.P. Art. 652. Compare United States v. Brawner, 471 F.2d 969 (D.C.Cir.1972), for a discussion of the insanity defense in the United States courts.


author: LEMMON, Justice,

text:
    Gloria ROLLO, Individually and as Administratrix of the Estate of Charles Jefferson Rollo, III and Shelly Michele Rollo v. Roosevelt DISON, et al.
    No. 82-C-1485.
    Supreme Court of Louisiana.
    Aug. 24, 1982.
   Re: Estate of R.C. “Pat” Anderson and Laura Jewell Peacock Anderson, Individually, applying for Supervisory Writ of Certio-rari, or Review, Second Circuit Court of Appeal, Parish of Red River, No. 14821. Lá. App., 415 So.2d 231.

Writ denied.

LEMMON, Justice,

concurs.

If the plaintiff at trial fails to prove the allegations of intentional murder by Dison and conspiracy by relator’s deceased husband, then relator wins the case. If plaintiff does prove the allegations as pleaded, then the insurance policy does not provide coverage, and the judgment of the court of appeal is correct. If plaintiff attempts to expand the pleadings with evidence, then relator may protect herself by objecting at trial, and if plaintiff attempts to supplement and amend the petition, then the question of the liability of the insurance company on the allegations of the amended petition is still an open matter.


text:
    STATE of Louisiana v. Steve SWAGGERTY.
    No. 82-K-2008.
    Supreme Court of Louisiana.
    Aug. 5, 1982.
   In re Steve Swaggerty, applying for writ of certiorari or review. Parish of Jefferson. No. 80-2232.

Denied.


text:
    STATE of Louisiana v. Kenneth Duane WELCH.
    No. 82-AW-2011.
    Supreme Court of Louisiana.
    Aug. 6, 1982.
   In re Kenneth Duane Welch, applying for remedial writ. Parish of Lafayette. No. 44258.

Granted and transferred. This application is granted for the limited purpose of transferring it to the Court of Appeal, Third Circuit for consideration of decision. The “appeal” ordered by the trial court on June 29, 1982 was from an adverse ruling in an application for writs of habeas corpus, which is an unappealable judgment, and never reached this court (it was never lodged in this court) until transferred here by the Court of Appeal.

The relief requested in the “appeal” apparently lodged in the Court of Appeal is the same relief (from the same district court judgment of May 28, 1982) requested in a writ application to this court (# 82-K-1694) which was denied by this court on July 2, 1982, 417 So.2d 364.

The case is now transferred to the Court of Appeal for consideration and decision. A copy of our # 82-K-1694 is attached.


author: DENNIS, J.,

text:
    STATE of Louisiana v. James WILLIAMS.
    No. 82-K-2075.
    Supreme Court of Louisiana.
    Aug. 16, 1982.
   In re James Williams, applying for supervisory writs. Parish of Orleans. No. 281-095.

Granted for the limited purpose of transferring to the court of appeal; a revocation of probation conducted after July 1, 1982 does not “relate to” the conviction and sentence (imposed prior to the transfer date) itself.

DENNIS, J.,

concurs. This application does not attack or question a conviction or sentence rendered or imposed prior to July 1, 1982.


text:
    In re Larry Preston WILLIAMS.
    No. 82-K-2043.
    Supreme Court of Louisiana.
    Aug. 16, 1982.
   In re Larry Preston Williams, applying for writ of review. Parish of Orleans.

Granted for the limited purpose of transferring application to the court of appeal.


text:
    STATE of Louisiana v. Barry D. PAYNE.
    No. 82-KH-1975.
    Supreme Court of Louisiana.
    Aug. 17, 1982.
   In re Barry D. Payne, applying for remedial writs. Parish of Terrebonne, 3rd Judicial District Court.

Writ granted. This application is transferred to the trial court for consideration.


text:
    STATE of Louisiana v. Ivan J. ONELLION.
    No. 82-K-2060.
    Supreme Court of Louisiana.
    Aug. 17, 1982.
   In re Ivan J. Onellion, applying for a writ of certiorari or review, from the Fifth Circuit Court of Appeal. Jefferson Parish. No. 82-K-24.

Denied. Bail having been fixed (see CCrP article 296), relator’s remedy is to move to reduce the amount of bail (CCrP article 321).


text:
    STATE of Louisiana v. Auggie TRUVIA, Sr.
    No. 82-KH-1986.
    Supreme Court of Louisiana.
    Aug. 18, 1982.
   In re Auggie Truvia, Sr., applying for writ of mandamus. Parish of Orleans. No. 278-472.

Motion for appeal bond transferred to district court for consideration.


text:
    STATE of Louisiana v. Walter EVANS.
    No. 82-K-2105.
    Supreme Court of Louisiana.
    Aug. 18, 1982.
   In re Walter Evans, applying for writ of certiorari, or review. Parish of Orleans, Criminal District Court. No. 290-324.

Writ granted. The trial court is ordered to reopen the bail hearing to permit the presentation of additional evidence.


text:
    STATE of Louisiana v. William F. MOORMAN.
    No. 82-K-2079.
    Supreme Court of Louisiana.
    Aug. 18, 1982.
   In re William F. Moorman, applying for writ of certiorari or review from the Tenth Judicial District Court. Natchitoches Parish. No. 53909-54910.

Granted for the limited purpose of transferring to the court of appeal as the ruling complained of does not relate to a conviction and sentence imposed prior to July 1, 1982. While the ruling complained of was rendered prior to July 1, 1982, application was not filed in this Court until after that date.


text:
    STATE of Louisiana v. Emile J. CHAUVIN, Jr.
    No. 82-K-2140.
    Supreme Court of Louisiana.
    Aug. 19, 1982.
   In re Emile J. Chauvin, Jr., applying for writs of review, certiorari and mandamus. Parish of Livingston. No. 41453.

Granted for the limited purpose of transferring to the court of appeal. Although the conviction occurred before July 1, 1982, the sentence occurred after that date. La. Const, article V, § 5(E), as amended.


text:
    STATE of Louisiana v. Alvin R. MOORE, Jr.
    No. 81-KA-1118.
    Supreme Court of Louisiana.
    Aug. 20, 1982.
   In re Alvin R. Moore, Jr. applying for stay of execution. (Bossier Parish)

Denied.


text:
    Gloria ROLLO, Individually and as Administratrix of the Estates of Charles Jefferson, Rollo, III and Shelly Michele Rollo v. Roosevelt DISON, et al.
    No. 82-C-2084.
    Supreme Court of Louisiana.
    Aug. 23, 1982.
   In re The Estate of R. R. “Pat” Anderson and Laura Jewell Peacock Anderson, Individually, applying for supervisory writs of certiorari and review. Parish of Red River. No. 14395.

Denied.


text:
    MT. CARMEL BAPTIST CHURCH v. Thomas TAYLOR, Hilda Allen, McKinley Gustin, One Lee Smith, and Oscar Sanders.
    No. 82-C-2165.
    Supreme Court of Louisiana.
    Aug. 23, 1982.
   In re Mt. Carmel Baptist Church, applying for writs of certiorari, and/or a supervisory writ. Orleans Parish, Civil District Court. No. 82-11767.

Stay order denied. Writ denied. Relator is relegated to ordinary procedures in the courts below for adjudication of the merits of the issues presented.


text:
    STATE of Louisiana ex rel. Patrick J. ALLEN v. STATE of Louisiana and Parish of Orleans Charles C. Foti, Jr.
    No. 82-KH-1755.
    Supreme Court of Louisiana.
    Aug. 25, 1982.
   In re Patrick J. Allen, applying for writ of habeas corpus. Parish of Orleans, No. 287-694.

Granted for the limited purpose of transferring to the court of appeal.


text:
    STATE of Louisiana ex rel., Earl E. BEAN, Jr. v. Warden AUCOIN.
    No. 82-KH-1802.
    Supreme Court of Louisiana.
    Aug. 25, 1982.
   In re Earl E. Bean, Jr., applying for writ of certiorari, prohibition and mandamus, 19th Judicial District Court. Parish of East Baton Rouge. No. 3-82-904.

Granted for the limited purpose of transferring to the court of appeal.


text:
    STATE of Louisiana v. Tony C. COLE, A/K/A William R. Carr.
    No. 82-KH-1822.
    Supreme Court of Louisiana.
    Aug. 25, 1982.
   In re Tony C. Cole, a/k/a William R. Carr, applying for remedial writs. Parish of Ouachita. No. 40024.

Granted for the limited purpose of transferring the writ application to the court of appeal.


text:
    STATE of Louisiana v. Eugene A. JOHNSON.
    No. 82-KH-1856.
    Supreme Court of Louisiana.
    Aug. 25, 1982.
   In re Eugene A. Johnson, applying for writ of habeas corpus. Parish of Orleans.

Granted for the limited purpose of transferring to the court of appeal.


text:
    STATE of Louisiana v. Edward LEWIS, Jr.
    No. 82-KH-2182.
    Supreme Court of Louisiana.
    Aug. 25, 1982.
   In re Edward Lewis, Jr., applying for writ of mandamus. Parish of Orleans. No. 290-155.

Granted for the limited purpose of transferring to the court of appeal.


text:
    STATE of Louisiana ex rel., Johnny BLACK v. STATE of Louisiana.
    No. 82-KH-2184.
    Supreme Court of Louisiana.
    Aug. 25, 1982.
   In re Johnny Black, applying for remedial writs. Parish of Calcasieu.

Granted for the limited purpose of transferring to the court of appeal.


text:
    Becky Louise Scott BUTTERFIELD v. Robert August BUTTERFIELD.
    No. 82-C-2198.
    Supreme Court of Louisiana.
    Aug. 27, 1982.
   In re Robert August Butterfield, applying for writ of review or other supervisory writs. Parish of Orleans. No. 79-12368.

Granted. Judge Roberts of the Civil District Court for the Parish of Orleans is ordered to hold a hearing on relator’s petition for Writ of Habeas Corpus as well as the custody rule not later than September 15, 1982.


text:
    Helen Jean SAWYER, et al. v. Dr. Robyn W. HARDY, et al.
    No. 82-C-2213.
    Supreme Court of Louisiana.
    Aug. 27, 1982.
   In re Helen Jean Sawyer, applying for writs of certiorari review, and stay order. Parish of St. Tammany. No. 46716.

Writ granted. The district court’s order denying plaintiff’s motion is reversed. The trial judge is ordered to permit the filing of plaintiff’s amended petition.


text:
    The CITY OF NEW ORLEANS; Honorable Ernest N. Morial, Mayor of the city of New Orleans; Gail Broussard, Jerome S. Glazer, Dr. Robert Azar, Stephen Manshel, and Peter Coleman, all Commissioners of the Audubon Park Commission v. Honorable David C. TREEN, Governor of the State of Louisiana, and Mrs. Lawrence H. Fox, Secretary of the Department of Culture, Recreation and Tourism.
    No. 82-C-2224.
    Supreme Court of Louisiana.
    Aug. 31, 1982.
   In re Hon. David C. Treen, Governor of the State of Louisiana, and Mrs. Lawrence H. Fox, Secretary of the Department of Culture, Recreation and Tourism, applying for emergency stay, and writ of certiorari, prohibition, mandamus or review. Orleans Parish No. 82-12083.

Denied. The necessity for a stay order is not demonstrated in the application.


text:
    The CITY OF NEW ORLEANS, Hon. Ernest N. Morial, Mayor of the City of New Orleans, and Gail Broussard, Jerome S. Glazer, Dr. Robert Azar, Stephen Manshel, and Peter Coleman, All Commissioners of the Audubon Park Commission v. Hon. David C. TREEN, Governor of the State of Louisiana and Mrs. Lawrence H. Fox, Secretary of the Dept. of Culture, Recreation and Tourism, et al.
    No. 82-C-2248.
    Supreme Court of Louisiana.
    Sept. 3, 1982.
   In re the City of New Orleans, et al., applying for remedial writs. Parish of Orleans. No. 82-12073.

Writ denied.