author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Edward DUNCAN and Christine Duncan.
    No. 81-KA-1996.
    Supreme Court of Louisiana.
    Oct. 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Herman L. Lawson, Asst. Dist. Atty., for plaintiff-appellee.
    John C. Geiger, Lafayette, for defendants-appellants.
   BLANCHE, Justice.

Edward Duncan and Christine Duncan were convicted of possession of marijuana with intent to distribute, a violation of LSA-R.S. 40 I967. Each was sentenced to five years at hard labor, but Christine’s sentence was suspended on the condition that she serve four years active probation. Christine takes no appeal from her conviction and sentence. In appealing his conviction and sentence, defendant Edward Duncan assigns four errors.

On August 15, 1980, two deputies of the DeSoto Parish Sheriff’s Office obtained a warrant authorizing a search of defendants’ residence. The warrant was issued based on the affidavit of the deputies, reciting as the basis for probable cause information supplied by an unidentified informant who had supplied reliable information at various times in the past. The subsequent search yielded a total of eight ounces of marijuana. A pan containing five “lids” of marijuana in individual plastic bags, two boxes of plastic bags, and $250 in cash was discovered in a kitchen cabinet. Another twenty lids of marijuana in a paper sack and two more boxes of bags were discovered in a drawer beneath the kitchen sink.

At trial, both defendants testified that they had purchased the marijuana for their personal consumption and that it was never intended for distribution. The record does not indicate that any scales for weighing or other drug paraphernalia were discovered in the residence; however, one of the deputies testified that separation of marijuana into small quantities, as was done in this case, is consistent with the form in which bags are sold individually on the street.

ASSIGNMENTS OF ERROR NOS. 1, 4

Defendant Edward Duncan argues that the marijuana should have been suppressed as evidence because the search was illegal, maintaining that the search occurred before the warrant was signed and that the warrant was not supported by probable cause. Specifically, defendant contends that the four corners of the affidavit do not establish the reliability of the informant and that hearsay contained in the affidavit renders it insufficient to support probable cause.

Before trial, both defendants moved to suppress the marijuana, and a hearing on the matter was held on November 24, 1980. The prosecutor submitted the issue solely on the search warrant and accompanying affidavit. There was no testimony concerning defendants’ allegation that the search took place before the warrant was signed, and the motion was denied. The record shows that the warrant was signed' at 7:08 p.m. At trial, Deputy Melton testified that the search occurred at approximately 7:20 p.m., therefore there is no factual basis in the record to support Edward’s contention.

It is well established that a search warrant may issue only upon an affidavit establishing probable cause to the satisfaction of a neutral magistrate. La.Const. art. 1, see. 5 (1974); La.C.Cr.P. art. 162; State v. Klar, 400 So.2d 610 (La.1981). Probable cause exists when the facts and circumstances within the affiant’s knowledge, and those of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that evidence or contraband may be found at the place to be searched. State v. Johnson, 408 So.2d 1280 (La.1982); State v. Tranum, 384 So.2d 367 (La.1980); State v. Morgan, 376 So.2d 99 (La.1979). Further, the facts establishing the existence of probable cause for the warrant must be contained within the four corners of the affidavit. State v. Poree, 406 So.2d 546 (La.1981); State v. Daniel, 373 So.2d 149 (La.1979); see also Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

If the basis for the existence of probable cause is the tip of an anonymous informant, the affiant must articulate the basis for his belief that the informant is trustworthy. This may be done by showing circumstances where the informant has given reliable information in the past. The affidavit must also indicate the underlying circumstances from which the informant concluded that the drugs were , where he said they would be. This may be done by reciting that the informant personally observed the drugs under the circumstances recited. State v. Hernandez, 408 So.2d 911 (La.1981); State v. Tate, 407 So.2d 1133 (La.1981); Aguilar v. Texas, supra. An allegation of past reliability is not necessarily a sine qua non to sufficiency of probable cause as long as a common sense reading of the affidavit supports the conclusion that the informant is credible and his information is reliable. State v. Clay, 408 So.2d 1295 (La.1982).

Applying these standards here, it is apparent that the affidavit was sufficient to establish probable cause. Our review of the record shows that the affidavit sufficiently described the residence to be searched and gave accurate directions as to its location. Further, the affidavit alleged the following facts:

* * * * * *
“[Confidential Informant] # 51 has been to this residence with [sic] the last five hours and has seen two pounds of marijuana in her living room. Davenport [Duncan] stated she sells marijuana for $40.00 a lid.
* * * * * *
This C.I. has given this department information on other drug dealers that proved to be reliable through information received from other police agencies. The C.I. has taken two officers to eight different locations and pointed out the occupants as drug dealers. These dealers were known to the officers prior to the C.I. pointing them out.
This C.I. has been known by these officers for six months and he has been found to be truthful and reliable on all information furnished. This C.I. has furnished reliable information on crimes other than drugs; this information was proved to be correct through other police intelligence information.”

These facts indicate the underlying circumstances from which the informant concluded that the marijuana was in the Duncan residence. The affidavit recites that the informant had personally observed the drugs “within the last five hours.” Because the informant was anonymous, the affiants articulated the basis for their belief that the informant was trustworthy by showing circumstances under which the informant had given reliable information in the past. Specifically, they showed that eight separate identifications by the informant of known drug dealers had been verified through earlier police investigation. Additionally, the affiants bolstered the credibility of the informant by showing that he had given reliable information relating to crimes other than those involving drugs, and that the information given had been verified through other police intelligence information. Therefore, there is no factual basis in the record to support Edward’s contention that the four corners of the affidavit fail to establish the reliability of the informant.

We likewise find no basis to support Edward’s contention that the existence of hearsay in the affidavit somehow renders it inadequate to support probable cause. The very essence of the use of an anonymous informant requires that the affidavit contain what the informant told to the affiant, and we have held repeatedly that the facts necessary to show probable cause may be established by hearsay evidence as long as the affidavit recites sufficient facts to show that the informant and his information are reliable. State v. Jeffcoat, 403 So.2d 1227 (La.1981); State v. Stephenson, 387 So.2d 1111 (La.1980); State v. Nelson, 381 So.2d 477 (La.1980). These requirements were satisfied in this case.

Accordingly, these assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 2

Edward contends that the evidence was insufficient to establish an intent to distribute marijuana, the essential element of the crime.

The relevant inquiry on appeal is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the essential elements of the crime had been proved. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Moody, 393 So.2d 1212 (La.1981). Intent to commit a particular crime is a question of fact which may be inferred from the circumstances of a transaction. LSA-R.S. 15:445; State v. Willis, 325 So.2d 227 (La.1975). The amount and form of a controlled substance discovered in the possession of the accused constitute evidence from which a jury may infer an intent to distribute the particular substance. State v. Marks, 337 So.2d 1177 (La.1976); State v. House, 325 So.2d 222 (La.1975); State v. Willis, supra.

There was testimony at trial that the form of the marijuana discovered in the Duncans’ residence was consistent with the form of marijuana distributed on the street in individual quantities. Edward Duncan testified that he could make approximately forty cigarettes out of each of the individual bags of marijuana. Therefore, defendants possessed enough marijuana to make up to 1000 cigarettes. In State v. Sibley, 310 So.2d 100 (La.1975), we held that intent to distribute could be inferred from the fact that defendant possessed enough marijuana to make 600 cigarettes. Accordingly, the amount and form of the marijuana possessed by the Duncans were such that any rational trier of fact could have inferred an intent to distribute.

There was testimony at trial that each individual bag could sell for as much as forty dollars on the street, therefore the total street value of the marijuana possessed by the Duncans was about $1,000. Edward Duncan testified that he had earned approximately $5,500 the previous year as a truck driver, and Christine testified that she was not employed at the time the marijuana was purchased. The fact that the street value of the marijuana was approximately one-fifth of the yearly income of the defendants indicates that it was intended for distribution rather than for personal consumption. Edward testified that he had purchased the marijuana for $210, but no evidence was adduced to corroborate the claim other than the self-serving testimony of Christine.

Therefore, after viewing the evidence in the light most favorable to the prosecution and considering the amount, form, and value of the marijuana in the possession of the Duncans, any rational trier of fact could have found beyond a reasonable doubt that the essential element of the crime, intent to distribute, had been proved.

Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

Edward argues that the trial court did not comply with the sentencing guidelines of La.C.Cr.P. 894.1 and that the sentence imposed is excessive.

In sentencing Edward, the trial judge stated that he felt that there was an undue risk that defendant would commit another crime during a suspended sentence or probation and that a lesser sentence would deprecate the seriousness of the offense. The judge noted that Edward was the principal actor and that the activity had been going on for some time prior to the arrest.

Under La.C.Cr.P. 894.1, the trial judge must state the considerations taken into account and the factual basis therefor in imposing sentence. While the trial judge need not articulate every aggravating and mitigating circumstance, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Guiden, 399 So.2d 194 (La.1981); State v. Vaughn, 378 So.2d 905 (La.1979); State v. Franks, 373 So.2d 1307 (La.1979). The judge should indicate that he has considered not only the factors militating for incarceration, but also any mitigating factors. State v. Gist, 369 So.2d 1339 (La.1979); State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Franks, supra.

In this case the trial judge attempted to comply with the guidelines of La.C. Cr.P. 894.1 by enumerating the aggravating circumstances, but no mitigating factors were mentioned. We do not consider that the record reflects that any of these factors were taken into account, and we cannot subscribe to the finding of the trial judge that the circumstances of the case represent an undue risk that Edward would commit another crime had he been given a less severe sentence without a record more reflective of all relevant factors.

Edward was convicted in 1969 of operating a motor vehicle while intoxicated and forfeited a bond on a 1972 speeding charge. In 1971, Edward had been charged with theft and, in 1975, operating a motor vehicle while intoxicated, but these charges were dismissed. The present offense represents Edward’s first felony conviction and was a relatively small-scale operation. Although Edward was not working at the time of his arrest, he has been gainfully employed for most of his adult life. He and Christine have three minor children who reside with them. Under the circumstances of this case, the trial judge might well have imposed a less severe sentence had he considered these mitigating factors.

DECREE

Accordingly, the conviction is affirmed, but the sentence is vacated and this case is remanded to the trial court for compliance with C.Cr.P. Art. 894.1 and for re-sentencing after consideration of the mitigating circumstances.

AFFIRMED; SENTENCE VACATED AND CASE REMANDED TO. THE TRIAL COURT FOR RE-SENTENCING.

       Judges Charles R. Ward, William H. Byrnes, III and David R.M. Williams of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      .Marijuana is a Schedule I substance, LSA-R.S. 40:964(C)(22), and defendants should have been charged under LSA-R.S. 40:966(A). LSA-R.S. 40:967 proscribes possession with intent to distribute Schedule II substances. However, when the accused has been fairly informed of the nature of the charge and has not been prejudiced by surprise or lack of notice, technical deficiencies in a bill of information may not be questioned after conviction. State v. Morgan, 389 So.2d 364 (La.1980); State v. Murray, 357 So.2d 1121 (La.1978); State v. Marmillion, 339 So.2d 788 (La.1976). Our review of the record shows that defendant has not raised the defective information on appeal, and we find that defendant was fairly informed of the charges against him and that he has not been prejudiced.

      . Christine Duncan testified that the bags were not with the marijuana but were instead stored in a different place. This testimony was obviously intended to lend credence to the Dun-cans’ claim that the marijuana was for personal use only. In direct contradiction, Deputy Melton testified that the bags were in the pan with the marijuana and cash.

      . Deputy Davidson testified that two packages of cigarette papers were discovered in the bedroom, and two more were discovered in the kitchen. It is not clear from the record whether the two packages discovered in the kitchen were with either of the caches of marijuana. The deputies did seize several ashtrays containing what appeared to be marijuana residue.


source: Caselaw Access Project

author: WATSON, Justice.

license: Public Domain

text:
    LOUISIANA STATE BAR ASSOCIATION v. Oscar E. KRAMER, Jr.
    No. 80-B-1505.
    Supreme Court of Louisiana.
    Oct. 18, 1982.

      Wood Brown, III, New Orleans, Robert J. Boudreau, Lake Charles, Sam J. D’Amico, Baton Rouge, Carrick R. Inabnett, Monroe, Harold J. Lamy, New Orleans, Alfred S. Landry, New Iberia, Phillippi P. St. Pee, Metairie, Roland J. Achee, Shreveport, Gerard F. Thomas, Natchitoches, Thomas 0. Collins, Jr., New Orleans, for relator.
    George C. Ehmig, Gretna, for respondent.
   WATSON, Justice.

This is a disciplinary proceeding against Oscar E. Kramer, Jr. brought by the Louisiana State Bar Association through its Committee on Professional Responsibility. The Supreme Court of Louisiana has original jurisdiction. Art. 5, § 5(B), LSA-Const. 1974.

Attorney Kramer and co-defendant Joseph D. Beasley were convicted in March of 1975, of conspiring to defraud the United States, 18 U.S.C. § 371, § 2, and making false claims, 18 U.S.C. § 287, § 2. The jury found criminal intent, concluding that the crimes were knowing and willful. The three count convictions were affirmed on April 8, 1977, in United States v. Beasley, 550 F.2d 261 (5 Cir.). Kramer was sentenced to two concurrent years on each of the three counts. He completed his sentence, serving a year and a half, and was released from supervision in May of 1979.

Kramer’s convictions arose out of his employment as director of finance for the Family Health Foundation. This nonprofit corporation provided family planning services to those receiving benefits from the Aid to Dependent Children program. In essence, Beasley and Kramer claimed funds for nonexistent capital projects and diverted the money to other purposes. Kramer had to take bankruptcy and did not personally profit from the Family Health Foundation. The offenses were not connected with the practice of law. The federal court stated:

“It should be noted that this Court entertains no doubt as to the many good things accomplished by the Family Health Foundation and the appellants. Their work for the individual, the scientific and professional communities, and society as a whole is admirable and commendable.” 550 F.2d at 264.

After his admission to the bar in 1969, Kramer worked as a tax accountant for Peat, Marwick, Mitchell & Company; as comptroller for Crownwell Oil Company; as financial vice-president for Idso Investments, Inc.; and then as treasurer of the Family Health Foundation beginning in 1971. He feels that he was “a pioneer” (Tr. 69) and described his situation as one where the government had changed the rules. Kramer’s position with the Foundation was bonded, but no civil action has been instituted.

Subsequent to his involvement with the Foundation, Kramer managed a substantial apartment complex in Baton Rouge with monthly rentals in excess of twenty thousand dollars. Additionally, he handled a transaction for the complex involving approximately 2.2 million dollars. His money management was exemplary.

During Kramer’s incarceration, he had a severe heart attack. Before and after his release from jail, he has practiced very little law. Kramer desires to retain his legal license primarily as an asset in seeking an executive position, although he also envisions the possibility of a bankruptcy practice.

When an attorney is convicted of any serious crime, the Committee on Professional Responsibility asks for appropriate disciplinary action to protect the public against those who are unfit to practice law. Articles of Incorporation of the State Bar Association, Art. 15, § 8. On September 18, 1980, Kramer was suspended from practice.

The commissioner appointed to hold a hearing in the matter reported that: the conviction is final; the Louisiana State Bar Association was not guilty of laches and acted expeditiously upon receiving notice of Kramer’s conviction; Kramer refuses to admit guilt; the criminal activity did not involve any violation of attorney-client duties or misuse of client’s funds. The commissioner recommended suspension for twenty-four months from the hearing date on March 5, 1982.

Both Kramer and the Louisiana State Bar Association oppose the commissioner’s report. Kramer contends that he is contrite about his illegal acts; argues that some consideration should be given to the association’s five year delay; and maintains that less severe discipline has been administered for more serious offenses. The association contends that those convicted of similar offenses have been disbarred.

Kramer claims that he was prejudiced by the Bar Association’s delay in taking action. In other instances, disciplinary proceedings have been instituted long after the crime, and there is no statutory prescriptive period. Louisiana State Bar Ass’n v. Loridans, 338 So.2d 1338 (La., 1976); Louisiana State Bar Ass’n v. Miller, 382 So.2d 911 (La., 1980). However, the delay of five years between Kramer’s conviction and institution of these proceedings does merit consideration. “The disbarment or discipline of an attorney long after his misconduct has occurred does not have a salutary effect on other members of the bar; nor does it serve well to preserve the integrity of the courts — two considerations which lie as the basis for attorney discipline.” Louisiana Bar Ass’n v. Edwards, 387 So.2d 1137 at 1139 (La., 1980).

While Kramer attempted to explain and justify the conduct for which he was convicted, this does not necessarily indicate lack of remorse. There is considerable evidence that Kramer’s crimes were motivated solely by his devotion to the Family Health Foundation. The commissioner did not weigh this aspect of the matter, but benevolent motives constitute a mitigating factor. Lack of evil intent does not justify or excuse the offenses but it reduces the degree of moral culpability.

Kramer’s crimes were unconnected with the practice of law. See Louisiana State Bar Ass’n v. Heymann, 405 So.2d 826 (La., 1981). While disbarment may be an appropriate discipline for any serious crime, the mitigating factors here weigh against that sanction. Compare Louisiana State Bar Ass’n v. Bensabat, 378 So.2d 380 (La., 1979). The commissioner recommended suspension from the practice of law for two years dating from the hearing on March 5, 1982, thus prohibiting Kramer from practicing law until March 5,1984. Such a suspension would terminate seven years after Kramer’s conviction was final. This penalty is too severe. The practice of law was not involved in Kramer’s crimes; his motive was not personal gain; no individuals were injured; and no civil claim for restitution has been made. Compare Louisiana State Bar Ass'n v. Weinstein, 416 So.2d 62 (La., 1982) and Louisiana State Bar Ass’n v. Levy, 400 So.2d 1355 (La., 1981).

The purpose of disciplinary action is not to compound a miscreant’s punishment. Louisiana State Bar Ass’n v. Miller, 382 So.2d 911 (La., 1980); Louisiana State Bar Ass’n v. McSween, 347 So.2d 1118 (La., 1977); Louisiana State Bar Ass’n v. Summers, 379 So.2d 1065 (La., 1980). However, the felonies committed by Kramer merit sanction to preserve the integrity and dignity of the bar. A three year suspension is appropriate, but it will be made retroactive to the date of his initial suspension, September 18, 1980.

IT IS THEREFORE ORDERED that Oscar E. Kramer, Jr., be suspended from the practice of law for three years commencing with his initial suspension and that he pay all costs of these proceedings.

      . It is argued that the diversion of funds by Kramer and Beasley was not a crime until the Foundation was transferred from state to federal control.


text:
    Donald C. SCAFIDI v. Peter F. JOHNSON.
    No. 82-C-0670.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    William R. Forrester, Jr., Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for applicant.
    Donald E. Theriot, Nelson & Theriot, New Orleans, for respondent.
   WATSON, Justice.

The issue is whether, in a suit by the original obligee against the maker of a promissory note, parol evidence that the promise to pay was a conditional one is admissible.

On February 26, 1975, defendant, Peter F. Johnson, executed a promissory, note in favor of plaintiff, Donald C. Seafidi, in the sum of $33,250 plus eight percent interest and twenty-five percent attorney’s fees. Plaintiff Seafidi received a trial court judgment on the note. The Court of Appeal reversed. Scafidi v. Johnson, 409 So.2d 316 (La.App. 4 Cir.1981). A writ was granted to review the judgment. 413 So.2d 499 (La.,1982).

Johnson’s acquaintance with Seafidi began in 1963 when both were employed in the marine division of Reynolds Metals. Seafidi was operations manager and Johnson worked under his supervision as a ship captain. In 1969, Seafidi left Reynolds. He and a partner formed Pyramid Ventures Group, but it ceased operations in 1974 and a new corporation, Pyramid Marine, was created. In 1973, Johnson began working for Pyramid Ventures and later Pyramid Marine. Forty-five percent of Pyramid Marine was owned by Seafidi. Peter Johnson was given five percent of the company and two other employees, Joe Kramer and Jose Balduz, were each given two and a half percent. Seafidi then formed Creole Lines, Ltd., and Creole Shipping, Ltd., two Bahamian corporations, with Pyramid Marine as their operating arm. Each Creole company owned two bulk ship carriers. Johnson was given five percent of the stock in those companies and Balduz and Kramer were each given two and a half percent. Scafidi owned thirty percent and two other investors each owned thirty percent of the stock.

In December of 1974, Scafidi decided to issue additional stock to dilute the stock ownership of the other two thirty percent investors. Since the latter were in financial difficulties, they could not exercise their preemptive rights. Scafidi purchased additional stock and became owner of approximately forty-five percent of the Creole companies. Scafidi also loaned Johnson, Balduz and Kramer money for their additional stock. Scafidi intended to help the employees and also to delude the former majority shareholders. Scafidi borrowed $177,000 from Pyramid Venture Group to pay for his stock and that of the three employee-shareholders. Scafidi took notes and stock pledges from the three as security. Johnson executed a $33,250 note; Bal-duz and Kramer each executed notes for $16,750. Bonuses were paid by Pyramid Ventures to Johnson, Balduz and Kramer which enabled them to make one interest payment to Scafidi and he in turn to Pyramid.

Johnson testified he was told by Scafidi he would never be expected to pay the amount of the note. He and Scafidi were extremely close; Johnson would have given him anything except his wife and children. Scafidi admitted saying that the notes would be paid with money made from the company. Jose Balduz, a disinterested witness who brought stock under the same circumstances, corroborated Johnson’s testimony that there was a clear understanding the notes would not have to be paid.

When Johnson left the Creole companies in 1976 to take an independent job as a ship captain, Scafidi’s own plan concerning that ship was undermined. Balduz’s note was forgiven by Scafidi on October 29, 1980. Scafidi explained that he owed this to Bal-duz but not to Johnson.

Scafidi’s plan worked. He effectively gained control of the Creole corporations when the new stock was issued. At any time the employee-stockholders’ demand notes could have been called and their stock relinquished to him. Thus, he had control of fifty-five percent of the company. The former majority stockholders were effectively divested of control without their knowledge.

The trial court relied on LSA-R.S. 10:3-119 which provides:

“(1) As between the obligor and his immediate obligee or any transferee the terms of an instrument may be modified or affected by any other written agreement executed as a part of the same transaction, except that a holder in due course is not affected by any limitation of his rights arising out of the separate written agreement if he had no notice of the limitation when he took the instrument.
“(2) A separate agreement does not affect the negotiability of an instrument.”

In the absence of a written agreement, the trial court concluded that Johnson was bound by the terms of the written note.

If plaintiff were a holder in due course, knowledge that the note was accompanied by a separate oral agreement would not impair its negotiability. LSA-R.S. 10:3-304(4)(b). The rights of one who is not a holder in due course are delineated in LSA-R.S. 10:3-306 as follows:

“Unless he has the rights of a holder in due course any person takes the instrument subject to
“(a) all valid claims to it on the part of any person; and
“(b) all defenses of any party which would be available in an action on a simple contract; and
“(c) the defenses of want or failure of consideration, nonperformance of any condition precedent, nondelivery, or delivery for a special purpose; and
“(d) the defense that he or a person through whom he holds the instrument acquired it by theft, or that payment or satisfaction to such holder would be inconsistent with the terms of a restrictive indorsement. The claim of any third person to the instrument is not otherwise available as a defense to any party liable thereon unless the third person himself defends the action for such party.” (Emphasis added)

Between two parties to an instrument, parol evidence has always been admissible to show want or failure of consideration. Logically, parol evidence should also be admissible on the other defenses enumerated in section (c) above. Also, pa-rol would be admissible in this instance under the prior Louisiana jurisprudence. Between the parties to an instrument, parol evidence is admissible “to show fraud, mistake, illegality, want or failure of consideration, to explain an ambiguity when such explanation is not inconsistent with the written terms, or to show that the writing is only a part of an entire oral contract between the parties. ” Gulf States Finance Corp. v. Airline Auto Sales, Inc., 248 La. 591, 181 So.2d 36 at 38 (1965).

There is no question that the initial ten percent of stock was given to the employee-shareholders, Johnson, Kramer and Balduz. It is possible that there was a misunderstanding about the terms on which they acquired the additional ten percent. Johnson and Balduz did not have the financial acumen of Scafidi and they were his loyal subordinates. Scafidi admitted that he encouraged them to think repayment would be made from corporate dividends. Johnson and Balduz signed the notes under the belief that they would have no personal liability; that any repayment would be made from corporate distributions. There was a condition precedent to Johnson’s obligation: that is, receipt of dividends, or other distribution of corporate funds sufficient to make payment. Since there was nonperformance of this condition, Johnson is not liable on the note to Scafidi.

For the foregoing reasons, the judgment of the Court of Appeal is affirmed.

AFFIRMED.

CALOGERO, J., concurs.

DIXON, C.J., dissents.

      . Johnson testified that Scafidi said:
      “... I’ll issue more stock because I understand now that they got their tail in a wringer financially. We’ll eventually issue a new stock and that way I can get these guys out of the control of the corporation and we will work a scheme so I can get control of the company.” (Tr. 57)

      . Johnson described the situation from Scafi-di’s point of view:
      “... Scafidi had to give away more of the stock than he initially intended in those shipping companies and he lost control. He came to us and said, ‘Okay. These guys are in tough shape financially. Hammons is in poor physical health almost dying and Cu-quet is in the slinger with a bank going down the tubes and the Feds are in here examining the ICB. This is an opportunity to get the control of my company back.’ ” (Tr. 60)

      . According to Johnson, he said:
      “... I’ll take care of arranging the funds and that way we will have control of the corporation. That way there is no outsiders and I will have complete control with your voting block of your percentages, all three of you.” (Tr. 61)

      . “Q .... another reason was the delusion of the other shareholders in those other corporations ...
      “A. [By Scafidi] Yes, I could say that, too.” (Tr. 36)

      . “Specifically he said, ‘Don’t you worry, you will never have to pay that note.’ ” (Tr. 67) “... ‘Don’t worry about that, don’t even worry about paying it back. I’ll take care of that. You run the Goddamn operations and let me take care of the financing and the marketing.’ ” (Tr. 61)

      . “... I told them as the company succeeded that is where we are making our money, there will be dividends and bonuses and you can pay me back out of the monies we made in the company.
      “Q. You expressly told them you could be paid back by the monies made in the company, is that correct?
      “A. That was the only way.” (Tr. 39)
      ******
      “... I said, ‘When we make money I’ll see you get bonuses and dividends and you can pay me back out of that.’ ” (Tr. 97)

      . “Q. What if anything did Mr. Scafidi tell you relative to repayment of that loan?
      “A. He told me not to worry about it because he did not want the repayment, that it was just a matter of shoveling papers to get control of the company.
      “Q. He specifically told you that he would not look to you personally to repair that loan, is that correct?
      “A. That’s correct.” (Tr. 81)

      . LSA-R.S. 10:3-304(4)(b) provides:
      “(4) Knowledge of the following facts does not of itself give the purchaser notice of a defense or claim
      “(b) that it was issued or negotiated in return for an executory promise or accompanied by a separate agreement, unless the purchaser has notice that a defense or claim has arisen from the terms thereof;”.

      . Were the note in the hands of a third party holder in due course or if Scafidi had used it as bank collateral, the result would, of course, be different. See D’Oench, Duhme & Co. v. F.D. I.C., 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942) and Rinaldi v. Young, 92 F.2d 229 (D.C.Cir.1937).


author: WARD, Justice Pro Tem.

text:
    STATE of Louisiana v. Warren WILLIAMS.
    No. 81-KA-2974.
    Supreme Court of Louisiana.
    Oct. 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry' F. Con-nick, Dist. Atty., Louise Korns, David R. Paddison, Asst. Dist. Attys., for plaintiff-appellee.
    Ferdinand J. Kleppner, Metairie, for defendant-appellant.
   WARD, Justice Pro Tem.

Warren Williams was convicted by a jury of the crime of armed robbery, and he was sentenced to serve twelve years at hard labor. Williams has appealed both his conviction, which he contends was the result of error committed during trial, and his sentence which he argues is excessive.

Although Williams had first specified twenty assignments of error, three of those assignments of error have been abandoned. Of the remaining seventeen, they have been grouped into eleven arguments for the purpose of this opinion.

The evidence during trial showed that on February 10, 1979, at about 8:30 p.m., Williams entered the Burger King on Gen. De-Gaulle Drive in New Orleans. After placing his order with the waitress at the counter, he sat at a nearby table while the order was being prepared. He returned to the counter to complain about the delay, but then he went back to the table and sat there without his food until all other customers had left. He then approached the cashier, showed her a gun, and ordered her to give him “all the money”. She gave him about $240.00. While continuing to point the gun at her, he slowly backed out of the restaurant and then ran toward the Parc Fontaine Apartment complex. The cashier ran to the office and told the manager, who immediately called the police and described the robber to the police while the cashier was describing the robber to him. Officer Sam Jones, who was in the area, heard the broadcast of the armed robbery and drove to the Parc Fontaine Apartments where he saw Williams hiding in an alley. Williams fit the description that had been broadcast, and Officer Jones brought Williams back to the Burger King. The cashier and other employees positively identified Williams as the robber, and Jones immediately arrested him and advised him of the Miranda warnings, searched him and found a .32 caliber bullet and $125.00. Williams then told Officer Jones that he had never committed a crime before but that he had just robbed the Burger King. Williams then brought the Officer to the place where he had left the gun and his coat.

ASSIGNMENT OF ERROR NO. 1

Williams claims that the Trial Judge erred in refusing to grant his Motion to Quash the Bill of Information because the penal portion of La.R.S. 14:64, the armed robbery statute, is unconstitutional since it permits cruel and unusual punishment. An impressive body of jurisprudence has determined otherwise and upheld the constitutionality of the statute. The latest of a long line of cases is State v. Johnson, 406 So.2d 569 (La.1981).

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

Williams next contends that the Trial Court erred when he denied the motion to suppress Williams’s inculpatory statements. He argues that the State did not meet its burden of proving beyond a reasonable doubt both that he had been given his Miranda rights and that his confession was free and voluntary. Officer Jones testified at the motion to suppress and at trial that he had advised Williams of the Miranda warnings before Williams made any statements. He further testified that Williams had confessed, without questioning, to the robbery shortly after he had been identified by the employees at the Burger King and that the statements were spontaneous and blurted out, as if in response to the identification. Although Williams later testified that Officer Jones threatened him if he did not take Jones to find the gun and coat, Jones denied making such a threat.

Before a confession can be introduced into evidence, it must be affirmatively shown that it was free and voluntary, LSA-R.S. 15:451. This Court has held affirmative proof means beyond a reasonable doubt. State v. West, 408 So.2d 1114, 1116 (La.1982). The admissibility of a confession is first a question for the Trial Judge, and his decision will not be overturned unless it is not supported by the evidence. State v. Haynie, 395 So.2d 669, 676 (La.1981).

Officer Sam Jones’s testimony, the events surrounding Williams’s arrest, and the unlikelihood of force or threats by Jones in the Burger King where Williams confessed all indicate that Williams’s confession was spontaneous, free, and voluntary and made after he had been advised of his rights.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

Williams also claims that the Trial Judge erred when he denied the Motion to Suppress Williams’s out-of-court identification because it was suggestive, having taken place at the Burger King while Williams was the sole suspect.

This court has frequently considered whether an identification was the result of either suggestive conduct or circumstances, which would make the identification inadmissible. In State v. Bickham, 404 So.2d 929, 934 (La.1981), this court said:

One-on-one confrontations between a suspect and a victim, while not favored by the law, are permissible when justified by the overall circumstances. State v. Dunbar, 356 So.2d 956 (La.1978). Such identification procedures are generally permitted when the accused is apprehended within a short time after the offense and is returned to the scene of the crime for on-the-spot identification. A prompt in-the-field identification, under appropriate circumstances, promotes accuracy, as well as expediting the release of innocent suspects.

Further, in State v. Davis, 409 So.2d 268, 270 (La.1982), we stated:

... In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the United States Supreme Court held that' reliability is the linchpin in determining the admissibility of identification testimony. The factors to be considered include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty displayed at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification. The Court noted that the standard, after all, is that of fairness as required by the due process clause of the fourteenth amendment. In the final analysis, it must be determined whether under all the circumstances of a particular case there is a very substantial likelihood of irreparable misidentification.

In the instant case, Williams sat for some time in a well-lighted restaurant, and he stayed there until he was the only customer. He had approached the cashier and spoken with her on several occasions. The cashier had described Williams before he was brought back to the restaurant, and her description perfectly matched Williams’s appearance. When he was apprehended and returned to the restaurant, twenty minutes after the crime, three witnesses positively identified him. There was ample opportunity for the witnesses to have observed him both before and during the robbery. These facts create a strong inference of reliability, and the detail and accuracy of the description reinforced the inference. Furthermore, in Bickham, supra, this court stated:

.. .A trial judge’s determination of the admissibility of an identification should be accorded great weight and will not be disturbed on appeal unless the evidence reveals an abuse of discretion.

We find no abuse of discretion and, therefore, no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 4

In addition to the errors which Williams alleges were committed when the Trial Judge denied the motions to suppress the confession and the identification, Williams claims that the Trial Court erred when he denied the Motion to Suppress the Evidence. He argues that, because of the improper identification procedures and the coerced inculpatory statement, the evidence which was discovered was tainted and should have been suppressed. Williams’s confession led to the discovery of a gun and jacket; a search of his person incident to the arrest disclosed $125.00 and a bullet. We have previously found that the confession was admissible and that the identification was without taint of suggestion, and we now hold that the arrest was lawful, the search incident to it was legal, and the evidence disclosed by Williams in his confession was admissible. We, therefore, also find that this assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 5 and 6

Williams argues that other errors occurred during trial, and he contends that the Trial Judge erred when he restricted the examination of jurors during the voir dire and when he interjected himself into the voir dire by castigating Defense Counsel. Counsel was limited in two instances during his examination of prospective jurors. In the first instance, the Trial Judge refused to permit Defense Counsel to question jurors as to whether they had been victims of the crimes of burglary or theft and limited the questioning to violent crimes because, he believed, the two types of crime are “totally different.” In the second instance, when Counsel asked jurors if they would be inconvenienced if the trial lasted more than a day, the Trial Judge said, “It will not go more than one day”, and in an exchange with the Defense Counsel, he added, “You can take issue all you want... we are not going to be here until tomorrow. We are either going to try this case today or we are not going to try it, one or the other.”

The rule for examining prospective jurors is given in La.C.Cr.P. Art. 786, and this court discussed the purpose and scope of voir dire examination in State v. Murray, 375 So.2d 80, 82 (La.1979): “The scope of voir dire examination is within the sound discretion of the Trial Judge and his rulings will not be disturbed on appeal in the absence of a clear abuse of discretion.” Further, the evaluation of the fairness of the action by the judge will be made from the record as a whole. State v. Nichols, 397 So.2d 1308, 1317 (La.1981).

In this case, the judge allowed extensive questioning of the possible jurors, and the record, when considered in its entirety, does not indicate that the Trial Judge abused his discretion on the two occasions when he limited the voir dire by the Defense Counsel.

For these reasons, the assignments lack merit.

ASSIGNMENTS OF ERROR NOS. 7, 9, 10 and 11

By this assignment, Williams contends that the Trial Judge erred in permitting several State exhibits to be admitted as evidence and viewed by the jury during the trial. The items included several photographs: one of the crime scene, one of Williams’s jacket, and one of the area where the jacket and gun were found. Additionally, a gun, cash, Williams’s coat, and a .32 caliber bullet were all admitted into evidence. Williams argues that the Trial Judge erred when he admitted this evidence because the prosecution failed to lay a predicate and to establish a chain of evidence.

Before evidence is admitted and shown to the jury, a foundation for its admission is required by La.C.Cr.P. Art. 773, but this Court has held that a chain of custody is not always essential to establish a foundation, State v. Davis, 411 So.2d 434, 438 (La.1982):

“To admit demonstrative evidence at trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered into evidence. State v. Paster, 373 So.2d 170 (La.1979); State v. Drew, 360 So.2d 500 (La.1978). A continuous chain of custody is not essential to enable the state to introduce physical evidence as long as the evidence as a whole establishes that it is more probable than not that the object introduced was the same as the object originally seized by the officer. State v. Guzman, 362 So.2d 744 (La.1978).”

During trial, the State’s exhibits were each identified visually by either the three witnesses who were employees of Burger King or by Sam Jones, the investigating officer. Their testimony clearly established that the photographs accurately depicted the crime scene, the items of evidence, and the area where they were discovered. Their testimony established that other exhibits were one and the same items of evidence that had been recovered by Officer Jones. The photographs and other exhibits were properly admitted into evidence.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 13

Williams next contends that the Trial Judge erred when he denied a motion for a directed verdict. He argues that the State’s evidence was insufficient to support a verdict of guilty.

La.C.Cr.P. Art. 778 as amended by Act 525 of 1975 does not provide for directed verdicts in jury trials. Nonetheless, when allegations are made that the evidence is insufficient to support the verdict, this Court will review the evidence and apply the constitutional standards required by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 650 (1979). This Court noted in State v. Garrison, 400 So.2d 874, 882, ftn. 2 (La.1981):

The directed verdict in jury trials became unavailable with the amendment of La.C.Cr.P. Art. 778 by La.Acts 1975, No. 525 Sec. 1. The trial judge had only such authority in bench trials. State v. Adams, 355 So.2d 917 (La.1978).
However, in State v. Peoples, 383 So.2d 1006 (La.1980), this court held that.. .it would review a claim that the state’s case was insufficient to support a conviction under a “no evidence” standard. The defense argument is thus considered here, albeit under the rational fact finder test of Jackson v. Virginia, now adopted by this Court.

The Court further declared:

The standard used in reviewing the sufficiency of evidence as enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the defendant is guilty....

In this case, the defendant’s confession, the eye witnesses identification, and the demonstrative evidence were clearly sufficient to support a conviction, and the Trial Judge’s denial of a directed verdict of acquittal was correct.

This assignment lacks merit..

ASSIGNMENTS OF ERROR NOS. 14 and 15

Williams argues that the Trial Judge erred when he refused to allow Defense Counsel either to read the sentence portion of the armed robbery statute or to present a “reasonable” hypothesis of innocence while Counsel was giving his closing argument. The question of when the penalty portion of a statute may be argued has been addressed by this Court. “When the penalty imposed by the statute is a mandatory one the trial judge must inform the jury of the penalty on request of the defendant, and must permit the defense to argue the penalty to the jury....” State v. Washington, 367 So.2d 4 (La.1978). Where the sentencing provision is not mandatory, as in the armed robbery statute, the Trial Court has the discretion either to permit or to deny argument that would disclose to the jury the range of sentence. State v. Bell, 377 So.2d 275, 282 (La.1979).

The Trial Judge acted within his discretion.

Counsel also contends that the Trial Judge erred when he denied Counsel the opportunity to argue to the jury by using a hypothetical theory of innocence. Counsel attempted to argue “You have a young man walking home, possibly, or going to a bus...” when the Trial Judge stopped him because those facts were not within the record. Counsel then amended his hypothesis to conform to the facts, but he contends now that the Trial Judge erred. The Trial Judge was correct.

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. La.C.Cr.P. Art. 774.

We find both assignments to be without merit.

ASSIGNMENT OF ERROR NO. 17

Williams also argues that the Trial Judge erred when he refused to order a mistrial. In closing argument, Defense Counsel pointed out to the jury that the State had failed to introduce evidence of fingerprints to show that the gun belonged to Williams. In his rebuttal argument, the assistant District Attorney argued to the jury that Defense Counsel could likewise have had the gun dusted for fingerprints.

Defense Counsel did not object when the statement was made, but after the conclusion of the argument, he asked for instructions from the Judge to make clear to the jury that Defense Counsel did not have an obligation to dust for fingerprints, and in the alternative, he asked for a mistrial. The Trial Judge denied both.

The remarks of the Prosecutor were only made in answer to Defense Counsel’s argument. Unquestionably, the Prosecutor had a right to answer that argument and to comment on the weakness of Defense Counsel’s theory of the case. If the Prosecutor had raised an inference in the minds of the jurors that the Defense Counsel had an obligation to examine the gun, then the Trial Judge dispelled that inference when he instructed the jury that the state must bear the entire burden of proving guilty beyond a reasonable doubt.

This assignment lacks merit.

ASSIGNMENT OF ERROR NOS. 18 and 19

Williams moved for a new trial alleging error occurred during trial when the Trial Judge refused to include a charge on circumstantial evidence in his instructions to the jury, and he claims that the state relied only on circumstantial evidence.

We disagree. The state’s case included direct evidence: eye witness identification and a confession by the defendant to a police officer. The Trial Court did not err. Although Counsel argues now the ends of justice would be served by granting a new trial because of this and of the other numerous errors, the claim is without merit.

ASSIGNMENT OF ERROR NO. 20

Williams argues that the Trial Court erred in refusing to grant defendant’s motion for a pre-sentence investigation. He also argues that the sentence imposed is excessive because Williams should not be imprisoned for his first offense. The Trial Judge may order a PSI, but he is not required to. C.Cr.P. Art. 875. The Trial Judge did not abuse his discretion when he denied the request. We also conclude that the imposition of a twelve-year sentence is not excessive for a defendant who arms himself with a gun and threatens to kill his victim.

Moreover, this court has held that a twelve year sentence under like circumstances is not an apparently severe sentence, State v. Bowick, 403 So.2d 673, 676 (La.1981), State v. Jones, 381 S.2d 416, 418 (La.1980) even if the defendant is a first offender. State v. Green, 390 So.2d 1253, 1260 (La.1980). Although the Trial Judge was brief when he articulated the reasons for the sentence, remand for complete compliance with La.C.Cr.P. Art. 894.1 is not necessary when the sentence imposed is not apparently severe and there is no manifest abuse of discretion. State v. Russel, 397 So.2d 1319, 1325 (La.1981).

This assignment of error lacks merit.

For the above reasons, both the conviction and sentence of Warren Williams are affirmed.

       Judges William H. Byrnes, III and David R.M. Williams of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Pro Tempore, with Chief Justice Dixon and Associate Justices Calogero, Dennis and Watson.

      . Act 144 of 1982, effective September 10, 1982, grants authority to the Trial Judge to grant a post-verdict judgment of acquittal, when the Court finds that the evidence, viewed in a light most favorable to the State, does not reasonably permit a finding of guilty. This Act, a legislative response to the problem created by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 650 (1979), and Burks v. U.S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), is not applicable to motions made prior to the jury verdict, and is applicable only to cases tried after September 10, 1982.


author: ROBERT L. LOBRANO, Justice Ad Hoe.

text:
    STATE of Louisiana v. Alfred CONN and Jerry Howard.
    No. 81-KA-3022.
    Supreme Court of Louisiana.
    Oct. 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John H. Craft, Louise S. Korns, Michael Simpson and David Plavn-ciky, Asst. Dist. Attys., for plaintiff-ap-pellee.
    John M. Standridge, Supervising Atty., New Orleans, Michael McMahon, Student Practitioner, James L. Donovan, Jr., Student Practitioner, Loyola Law Clinic, for defendant-appellant.
   ROBERT L. LOBRANO, Justice Ad Hoe.

Defendants Alfred Conn and Jerry Howard were charged by bill of information with simply burglary of an inhabited dwelling, a violation of La.R.S. 14:62.2, which occurred on September 4,1980. On May 11, 1981, defendants were tried before a twelve-member jury and found guilty as charged by a unanimous verdict. On May 26, 1981, defendant Jerry Howard was sentenced to six years at hard labor, while defendant Alfred Conn received seven years at hard labor. Both sentences are to be served without benefit of probation, parole, or suspension of sentence for the first year. On appeal defendants argue two assignments of error.

FACTS

The defendants were seen leaving a residence at 1231 St. Roch Street by Florida Bullock, a woman who lived next door at 1224 St. Roch. They were accompanied by a third person. One of them was carrying a fish aquarium, one was carrying a table or stand, and another was carrying a fan and a fishing pole. Ms. Bullock had called the police earlier because she had seen the group standing in front of the dwelling and walking down the alleyway. When the three men started walking down the street, Stephen Egona, who lived with Ms. Bullock, got in his car and followed them down the street. Egona spotted a police car, advised the officers of what had occurred and pointed out the suspects to the officers. At that time, the defendants were apprehended.

Ms. Bullock and Mr. Egona both identified the defendants at trial.

ASSIGNMENT OF ERROR NO. 1

By this assignment defendant contends the trial court erred in denying his motion for a new trial made on grounds that there was insufficient evidence to prove the burglary took place in an inhabited dwelling.

Simple burglary of an inhabited dwelling is defined as the unauthorized entry of any inhabited dwelling, house, apartment, or other structure used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein. La.R.S. 14:62.2.

The definitions of an “inhabited dwelling” under R.S. 14:62.2 and R.S. 14:62 are the same. It is not necessary for a person to be present in the house at the time of the burglary in order to satisfy the “inhabited dwelling” required of R.S. 14:62.2. State v. Powers, 344 So.2d 1049 (La.1977), State v. Hicks, 286 So.2d 331 (La.1973). Thus the fact that Willie May Bailey was not present in the house at the time the offense was committed would have no relevance to a charge under the statute.

Appellant argues that in addition to not being present at the time of the offense, Willie Mae Bailey was not living in the house and that therefore the dwelling was not inhabited for the purpose of R.S. 14:62.2.

We disagree. At trial Willie Mae Bailey offered testimony to the effect that the house broken into was her home, although at the time of the burglary she was staying with her daughter. From the record it appears that Mrs. Bailey’s husband had died approximately 1 month prior to the burglary and she was in the process of breaking up housekeeping in order to move in with her daughter permanently.

On direct examination, Mrs. Bailey testified:

“Q. Was that your home, though? Was that a home of yours, 1231 St. Roch?
A. Yes.
On cross-examination, Mrs. Bailey reiterated that 1231 St. Roch was her home.
Q. You didn’t live at 1231 St. Roch, is that correct?
A. I sure did. It’s my house.
Q. And you lived there on Sept. 4, is that correct.
A. Before I moved with my daughter.
Q. So, in fact, you weren’t living there. You had furniture there.
A. All my furniture was there, and if my furniture was there, I was living there, you can see all my stuff was there.”

In our opinion, Mrs. Bailey’s testimony reflects clearly that at the time of the burglary she considered herself still to be domiciled at her St. Roch St. apartment. She was still paying rent for the apartment. Her furniture and clothes were still there. Her late husband’s personal effects were still there, including the various items which were the subject of this burglary. The fact that she had been visiting with her daughter since the death of her husband and that it was her apparent intention to move from the house in the near future does not change the fact that at the time of the burglary this was still her principal place of abode and thus certainly inhabited for the purpose of R.S. 14:62.2.

In addition, just a few hours prior to the burglary Mrs. Bailey was in the apartment cleaning up whereupon, the defendants approached and asked to use her bathroom. Shortly after Mrs. Bailey left, the burglary occured. The defendants knew that the apartment was inhabited. We therefore reject this assignment of error.

ASSIGNMENT OP ERROR NO. 2

Defendants maintain that the sentences imposed were excessive and inadequately reasoned.

A conviction for simple burglary of an inhabited dwelling carries a maximum prison term of not more than twelve years at hard labor. Defendant Jerry Howard was sentenced to six years at hard labor. Defendant Alfred Conn was sentenced to serve seven years at hard labor.

A review of the record clearly indicates that the trial judge fully considered the seriousness of the crime and the extensive criminal history of both defendants. The trial judge need not articulate every aggravating and mitigating circumstance enumerated under C.Cr.Pro. Article 894.1.

The sentences are within the statutory range for the crime charged. The general rule, as pronounced by this court, is that a sentence is excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless and purposeless infliction of pain and suffering. The sentence of the trial court should not be set aside as excessive in the absence of the trial court’s abuse of discretion. State v. Stegall, 377 So.2d 103, 106 (La.1979). Prior to sentencing the defendants the trial judge stated:

“... I just feel that a residence burglary, per se, is an extremely serious offense ... someone could have been seriously injured in a residence burglary ... I feel that this matter is serious enough so that any lesser sentence that I would impose would derogate from the seriousness of the matter.”

We must agree with the trial judge. The sentences here do not appear to be grossly disproportionate to the crime charged nor are they nothing more than the needless and purposeless infliction of pain and suffering.

This assignment lacks merit.

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

AFFIRMED.

DIXON, C.J., concurs.

       Judges William Norris, III. and Fred C. Sexton, Jr., of the Court of Appeal, Second Circuit, and Judge Robert L. Lobrano of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . La.R.S. 14:62.2 states: “Simple burglary of an inhabited home is the unauthorized entry of any inhabited dwelling house, apartment or other structure used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein, other than as set forth in Article 60.”


author: DAVID R.M. WILLIAMS, Justice Pro Tem.

text:
    STATE of Louisiana v. Robert GRAHAM.
    No. 82-KA-0143.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James David Caldwell, Dist. Atty., George F. Fox, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Samuel Thomas, Tallulah, for defendant-appellant.
   DAVID R.M. WILLIAMS, Justice Pro Tem.

Defendant, Robert Graham, was convicted, after a trial by jury, of second degree murder, in violation of La.R.S. 14:30.1. He was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. He assigns one error on appeal alleging insufficiency of the evidence and urges reversal of his conviction and sentence. Our careful examination of the record reveals that defendant’s assignment of error lacks merit and we affirm.

The defendant was indicted and convicted in the stabbing death of a lounge patron in Lake Providence, Louisiana. The incident occurred in the entranceway to a nightclub crowded with customers, as the victim and his date were leaving the nightclub. The defendant was inside the club when a quarrel arose, between his brother, who was standing at the door, and the decedent, over the inappropriate touching of decedent’s date. The defendant came over from the bar and voluntarily joined in the argument, presumably in defense of his brother. At first, defendant merely had words with decedent, but this argument soon escalated to an exchange of punches between the decedent and defendant. Defendant’s brother was no longer involved. The record indicates defendant was struck down at least twice during the argument and upon arising the second time, got up swinging a knife, stabbing decedent who later died from the wound inflicted. The next morning defendant learned that decedent had been killed and that a friend was being held in connection with the death. Defendant went to the Sheriff’s office in Lake Providence to turn himself in. Defendant confessed to having stabbed the decedent and when questioned about the knife used in the homicide, he was able to tell the authorities exactly where to find it. Defendant was convicted of second degree murder and alleges there was insufficient evidence to support the verdict. We disagree.

INSUFFICIENCY OF THE EVIDENCE

The present standard by which the sufficiency of the state’s evidence is determined was set forth by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing den. 444 U.S. 890,100 S.Ct. 195, 62 L.Ed.2d 126 (1979). We have also adopted this standard as expressed in State v. Straughter, 406 So.2d 221 (La.1981); State v. Campuzano, 404 So.2d 1217 (La.1981) and State ex rel Ross v. Blackburn, 403 So.2d 719 (La.1981).

In reviewing a case to determine whether the evidence supports a conviction, the standard set forth, in Jackson, supra, requires this court to examine the record to determine if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Hicks, 395 So.2d 790, 797 (La.1981).

Defendant contends that there is insufficient evidence to sustain his conviction for second degree murder under the Jackson standard. In this regard, Jackson dictates that a defendant’s challenge against the sufficiency of the evidence is judged by determining whether a rational jury, after construing the evidence in light most favorable to the state, could find proof of guilt beyond a reasonable doubt.

Second degree murder, in Louisiana (La. R.S. 14:30.1), is defined as:

Second degree murder is the killing of a human being;
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.
Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

Specific intent, as a key element of second degree murder, is defined as:

* * * * Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. * * * (La.-R.S. 14:10(1))

However, specific intent is a state of mind, and need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of defendant. State v. Boyer, 406 So.2d 143, 150 (La.1981); State v. McDermitt, 406 So.2d 195 (La.1981); State v. Williams, 383 So.2d 369 (La.1980); State v. Garner, 241 La. 275, 128 So.2d 655 (La.1961). The evidence does not show defendant in danger of great bodily harm himself nor of passionately stepping into the fray to defend his brother. What the evidence does show is defendant joining the argument as an aggressor, stabbing the decedent and defendant’s prior record of other convictions of assault, battery and other violence. We think it quite reasonable for the jury to infer from the circumstances the guilt of defendant.

Specific intent is an ultimate legal conclusion to be resolved by the fact finders. State v. LeCompte. 371 So.2d 239, 243 (La.1979). The defendant was tried by a twelve member jury of his peers. The jury returned a verdict of guilty as charged. Since the jury is the ultimate trier of fact, they have necessarily reached a conclusion that specific intent was present, along with all of the other elements, for second degree murder. We find that this conclusion is within the jury’s discretion. The discretion of the jury should be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. State v. McKeever, 407 So.2d 662, 665 (La.1981); and Jackson v. Virginia, supra.

We hold that the verdict of guilty of second degree murder is clearly supported by the evidence in this case. An eye-witness to the killing testified at trial (R.Tr.P. 155-161) that she saw defendant stab the decedent; and that she saw the decedent leave the bar and fall at the foot of the steps. Another witness at trial testified (R.Tr.P. 147-148) that she helped decedent walk from the foot of the steps as he uttered to her, “I’m cut y’all” (R.Tr.P. 156). The victim subsequently died of a stab wound later that night. Defendant himself confessed to having stabbed the decedent (R.Tr.P. 62 and State Exh. No. 2 & 3). A rational trier of fact could certainly have found from this evidence that defendant had the specific intent to kill or commit great bodily harm and that the state has proven these essential elements of the crime of second degree murder beyond a reasonable doubt (La.R.S. 14:30.1).

The evidence also shows that defendant swung at and stabbed the decedent with a knife, who had not, during the argument, attacked defendant with any weapon. A rational trier of fact could have found, beyond a reasonable doubt, that based on this evidence, the defendant did not kill the victim in self defense, but rather in a manner sufficient to constitute second degree murder. The evidence further shows defendant interfered in a purely vocal quarrel between decedent and defendant’s brother. There was no cause for defendant to interfere. He became the aggressor and ultimately asked for the beating he received at the hands of the victim. By pulling a knife and slashing the decedent, defendant dramatically escalated the seriousness of the incident to the point of no return. It is reasonable for the jury to conclude that there was no evidence in the record to show that defendant had drawn the knife in the “heat of blood”. Moreover, we think the jury properly found that defendant had formed the requisite specific intent when he drew the knife, and this may be inferred from the overwhelming evidence. State v. McDermitt, 406 So.2d 195, 202 (La.1981).

For the reasons set forth above, we affirm the conviction and sentence.

AFFIRMED.

LEMMON, J., concurs.

       Judges Charles R. Ward, Jr., William H. Byrnes, III and David R.M. Williams of the Fourth Circuit Court of Appeal participated as Associate Justices Pro Tempore in this decision with Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.


author:
      WARD, Justice Pro Tern.
     CALOGERO, Justice, DENNIS, Justice,

text:
    STATE of Louisiana v. Joe C. RIVERS.
    No. 82-KA-0187.
    Supreme Court of Louisiana.
    Oct. 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., William R. Alford, Abbott J. Reeves, Jr., and Peter J. Garcia, Asst. Dist. Attys., for plaintiff-appellee.
    S. Austin McElroy, Covington, for defendant-appellant.
   WARD, Justice Pro Tern.

The St. Tammany Parish Grand Jury indicted the defendant Joe Rivers, charging him with first degree murder, La.R.S. 14:30. After a jury trial, he was found guilty as charged and sentenced to life in prison without benefit of parole, probation or suspension of sentence. Defendant appeals the conviction and specifies four assignments of error. Although initially seven assignments of error were claimed, three were not argued, and they are considered as abandoned.

PACTS

On March 24, 1981, the body of Larry Lyons, a twenty-one year old murder victim, was discovered near a small pond in a wooded area, a short distance from the Interstate 10 in Slidell, Louisiana. His fishing equipment was found nearby, and Lyons had apparently stopped on his way home from work to fish when he was robbed of his car, a 1966 Plymouth, and stabbed to death. The victim’s wife provided investigating officers with a full description of the missing car, including the license and the vehicle identification number; and the information was put through the National Crime Information Center Computer.

All of the testimony and evidence indicate that on March 25,1981, the day following the murder of Lyons, two men driving the stolen 1966 Plymouth stopped at a Shell station in Spanish Fort, Alabama. The car was being driven erratically; and when the two men got out, they created a disturbance, and it was obvious they were intoxicated. When they finally left, at about 12:30 p.m., they almost struck the service station attendant’s parked car, and she called the Alabama State Police and gave them a description of the men and the white 1966 Plymouth, which then had a Florida license plate.

After taking the complaint, Officer Green reported the tag number to his headquarters and then drove east on the interstate to pursue the suspects. Green passed a stopped white 1966 Plymouth with a Florida tag about 1:00 p.m., and observed the defendant, Joe Rivers, standing outside the car and the driver, Troy Oatsvall, in the car behind the driver’s seat. He continued on and drove to the nearest turnaround where he parked and waited for the Plymouth, which passed about two minutes later. Green followed the Plymouth for a short while and then pulled the car over. Troy Oatsvall got out, and Green and he talked for a few minutes before Green arrested him for violation of an Alabama statute of driving under the influence. Green put Oatsvall in the back of the police car while he spoke with Rivers, whom he determined to be too intoxicated to leave on the highway. Although Rivers was not placed under arrest, Officer Green made it clear that Rivers had to go with him, and had he resisted, Green would have arrested him for being intoxicated on the highway. Green then transported both men to Daphne, Alabama, where Oatsvall was placed in jail and charged with driving while under the influence. Rivers, however, was not then charged with any crime, and he was permitted, even assisted, to make several telephone calls trying to find someone to come get him.

The car was left at the scene, but Green took the vehicle identification number, which was relayed to the NCIC computer. He received a computer report about 1:40 that the vehicle was stolen in a robbery in Slidell and that someone was murdered during the robbery. Green immediately advised Oatsvall and Rivers of their Miranda rights and of the information he had received from the computer, and then he arrested both men for bringing stolen property into the state. Neither Oatsvall nor Rivers made statements at that time.

In midafternoon, about 3:30 p.m., the two defendants were taken in separate cars to the Baldwin County jail in Bay Minette, Alabama, and a wrecker was sent out to tow the ear from the interstate, and it was placed in a local garage. Rivers was again read his Miranda rights, and he was questioned, but he denied having any knowledge of the murder. In the meantime, a toxicologist examined the car and removed knives and bloody clothing from it.

On the same evening, at about 6:00 p.m., two officers from the St. Tammany Parish Sheriff’s Office, LaRocca and McGehee, arrived in Baldwin County. At about 8:00 p.m., LaRocca advised Rivers of his Miranda rights and questioned him about the murder. At that time, Rivers acknowledged that he had been in Slidell, and that he had taken the automobile, and that some bloodstained clothes belonged to him; but he refused to answer any questions about the killing.

Later, a warrant for the arrest of Rivers was obtained, and after he waived an extradition hearing, Rivers was returned to St. Tammany Parish. On April 2, 1981, a search warrant was issued, and a blood sample was taken from Rivers. Then, on April 7, 1981, Rivers requested to speak with LaRocca and McGehee, saying he wanted to ask them some questions. La-Rocca and McGehee, out of an abundance of precaution, advised him of his Miranda rights for the fourth time and reminded him that he was already represented by court-appointed counsel. Nonetheless, Rivers wanted to speak with the officers, and the statements, the questions, and the answers were recorded on a tape. In response to questioning, the defendant admitted that he had taken the victim’s car and that he owned both the pocket knife and bloodstained clothing found in the car.

Rivers claims that the Trial Judge erred in denying his motion to suppress (1) the first oral statement he made to Louisiana officials while he was still in Alabama, (2) items of evidence seized from the victim’s car, (3) the taped statements made in St. Tammany Parish, and (4) the blood sample taken from him.

ASSIGNMENT OF ERROR NO. 1

Rivers now argues that the incriminating statements which he made in Alabama to Louisiana police should be suppressed because they were the fruit of an illegal arrest and tainted. Rivers contends that when the Alabama State Police took him from the car on the interstate, the police made an illegal warrantless arrest, and that the connection between the illegal arrest and defendant’s statements was not sufficiently attenuated to purge the statements from being considered fruit of an illegal arrest.

We believe, however, that even if the initial custody of Rivers was an arrest, it was a legal one. State Trooper Green had observed him in an intoxicated condition in a public place, the highway, and, moreover, he had received a complaint that Rivers was intoxicated and had earlier caused a disturbance at the service station. There clearly was probable cause to arrest Rivers for violation of Alabama law, however minor the infraction. Because of Rivers’s intoxicated condition, Green wisely took him into protective custody for Rivers’s safety, and acting with commendable restraint, did not charge him with a crime. After they reached the stationhouse, Rivers was free to leave at any time he was able to reach someone to come and pick him up.

It does not matter whether Rivers’s initial custody is considered to be an arrest or protective custody, because Green’s restraint of Rivers was legal. The Trial Judge denied the motion to suppress the statements Rivers made in Alabama. He was correct; the assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

Additionally, Rivers argues that the Trial Court erred in refusing to suppress items of physical evidence taken from the car in Alabama. The items were removed during a search made without a warrant by a State of Alabama toxicologist after the car had been towed off the interstate. Rivers argues that the search was illegal and that the evidence should be suppressed because there were no exigent circumstances to support a warrantless search.

In denying the defendant’s motion to suppress, the Trial Court stated:

This search was made in the State of Alabama. The law of the land as expressed by the U.S. Supreme Court under which Alabama is bound which this Court concludes is the law of the State of Alabama requires or would suggest that in view of the fact that this was a stolen automobile and in view of the fact that these defendants are the occupants of that automobile, had no appropriate proprietary interest in that automobile, they had no reason to expect any privacy, and there was absolutely nothing wrong with the warrantless search of this vehicle.

Since this search occurred in Alabama, we are not concerned with provisions of the Louisiana Constitution, Article I, Section 5, which enlarged the rights of defendants to object to a search. The inquiry is, therefore, directed to the interpretation of the Fourth Amendment by federal court decisions, particularly the Supreme Court decision, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507,19 L.Ed. 576 (1967), and the pertinent question is whether Rivers had a reasonable expectation of privacy in the stolen vehicle. In discussing Katz v. U.S., supra, this court in State v. McCommons, 398 So.2d, 1100, (La.1981), also discussed Fourth Amendment rights and the expectation of privacy:

The Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Its essential purpose is to shield the citizen from unwarranted intrusion into his privacy. Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). To invoke the protection of the Fourth Amendment, a person must show that he had a reasonable expectation of privacy which was invaded by the government’s action. There are two facets to the proof:
“... first, that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable’...” Katz v. United States, 389 U.S. 347 [361], 88 S.Ct. 507, 516, 19 L.Ed.2d 576, 588 (1967) (Harlan, J., concurring).

We now hold that the occupant of a vehicle which he knows to be stolen does not have a reasonable expectation of privacy in that vehicle.

ASSIGNMENT OF ERROR NO. 3

Rivers argues that the Trial Court erred when he refused to suppress a taped statement which was given to Louisiana Deputies LaRocca and McGehee on April 7, 1981, because Rivers was interrogated outside the presence of his court-appointed counsel.

During the course of the interview, Rivers essentially repeated the information that was in his earlier oral statement: he had taken the victim’s car; the bloodstained clothes were his; and he added that a pocketknife found in the car belonged to him. The record clearly reflects that defendant Rivers initiated the interview by requesting to speak to two Louisiana detectives. The officers again read the Miranda rights, and the taped interview indicates that they asked Rivers: “Since you have an attorney, do you still want to speak with us?”, and Rivers answered that he did. The officers also honored the defendant’s specific request not to speak about the killing since his attorney was not present, and they terminated the interview at defendant’s request.

In the recent case of State v. Willie, 410 So.2d 1019 (La.1982), this court discussed waiver of defendant’s rights under Miranda and distinguished these situations where the accused initiates the interview from those initiated by police.

In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the high court made clear that when an accused has invoked his right under Miranda to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. An accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.

We are convinced by the evidence, particularly the taped recording of the interview, that Rivers genuinely initiated the communication.

Somewhat as an aside, Rivers argues that the warrant for his arrest was defective because it failed to show probable cause and, therefore, his April 7th statements should be suppressed as fruit of an illegal arrest. The record proves otherwise.

Before going to Alabama to arrest Rivers, deputies LaRocca and McGehee had obtained a warrant which was supported by an affidavit, and the affidavit contained ample facts to show probable cause for the arrest of Rivers for the murder of Larry Lyons. The affidavit set forth the facts sufficiently to satisfy the requirements of La.C.Cr.P. Art. 202; the arrest was legal; the confession was admissible as evidence; the Trial Judge did not err when he refused to suppress it. This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 4

Rivers argues that the Trial Court erred in refusing to suppress evidence of blood samples because the affidavit for the search warrant did not show probable cause for its issuance. The affidavit said to be lacking in probable cause stated:

On 3/24/81 Larry L. Lyons, white male, 12/4/59 of Slidell La. was the victim of a stabbing death. Joe C. Rivers, white male, dob 2/11/53 was arrested and charged in this murder. At the time of Rivers arrest and in the vehicle he was riding a pair or pants belonging to Rivers as well as a pair of shoes of his was found containing blood stains. The purpose of this search warrant is to obtain a sample of Rivers blood to compare with the evidence found, to compare with the victim’s blood as compared to Rivers.

While warrantless searches are to be discouraged, applications for search warrants are to be encouraged, and

... affidavits must be given a commonsense and realistic interpretation; and a doubtful or marginal case will be resolved in favor of upholding the validity of the warrant.

State v. Babbit, 363 So.2d 690 (La.1978).

A reasonable interpretation of the affidavit in this case indicates that there was probable cause for the issuance of the warrant for the search, and in this instance, the search was a minimal intrusion of Rivers’s privacy.

The Trial Court ruled there was probable cause. The issuance of a warrant is controlled by the requirements of C.Cr.P. Art. 162. We agree with the Trial Court that probable cause was sufficiently established, and we conclude this assignment is without merit.

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

AFFIRMED.

CALOGERO, J., concurs and assigns reasons.

DENNIS, J., concurs with reasons.

CALOGERO, Justice,

concurring.

It is unnecessary for the majority in this case to decide as it does that the Louisiana Constitutional provision is inapplicable to an Alabama search. It may well be that just the reverse is true, at least with respect to a Louisiana prosecution.

Nonetheless, I agree that the trial court’s refusal to suppress items taken from the car in Alabama was not erroneous. There could be no reasonable expectation of privacy as relates to the contents of this stolen car.

DENNIS, Justice,

concurring.

I respectfully but reluctantly concur.

I cannot join the majority’s opinion because of its treatment of assignment of error number two:

(1) The statement that “since this search occurred in Alabama, we are not concerned with provision of the Louisiana Constitution, Article I, Section Five” is too significant to be made without sufficient discussion. To be sure, the entire question of the application of a home state’s procedural and/or substantive law to searches conducted in a foreign state which produce evidence that is to be utilized within the home state is perplexing. See generally 1 W. LeFave, Search and Seizure — a Treatise on the Fourth Amendment § 1.3(e) (1978). The provision of the Louisiana Constitution in Article I, Section Five “seems to provide an affirmative right of every individual and not just a check on state action,” L. Har-grave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 23 (1974), and means at the very least that' citizens prosecuted in Louisiana Courts will not be subject' to the use of evidence seized in violation of our Constitution.

(2) While I agree that the facts of this case show that this defendant did not have a subjective expectation of privacy that society is willing to recognize, such that the Katz principle operates to excuse the police from the warrant requirement, I do not think it judicious to use this case to announce a blanket rule that one can never have a reasonable expectation of privacy in a stolen car. Under the circumstances of this case, the police had probable cause to believe that the defendant was a murderer fleeing in a stolen car which was also linked to the homicide. These circumstances justified their seizure of the automobile and their subsequent search without a warrant because this defendant could not have had any expectation of privacy in the vehicle. Any other commentary about expectations of privacy in stolen cars goes beyond the question presented by this case, and must be viewed as dicta.

For these two reasons I concur.

       Judges William H. Byrnes and David R.M. Williams of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Pro Tempore, with Chief Justice Dixon and Associate Justices Calogero, Dennis and Watson.

      . § 13A-11-10, Public Intoxication, Code of AI-abama.

      . La. Const, of 1974 Article I, Section 5 provides:
      “Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.”


author: WATSON, Justice,

text:
    Willie E. BRUMFIELD v. PATTERSON & YEARY STEEL COMPANY and Liberty Mutual Insurance Company.
    No. 82-C-2089.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    Dissenting Opinion Oct. 21, 1982.
    WATSON, J., would grant the writ and assigns written reasons.
   WATSON, Justice,

dissenting from denial of the writ.

It is undisputed that Brumfield had his leg broken by an irate and just-fired fellow employee because of the part Brumfield played in the loss of the job; at the time of the incident, they were riding home from work in a pickup, off the employer’s premises and after work hours.

The writ should be granted to consider whether the fracture of relator’s leg arose out of and was in the course of employment.

The well-recognized rule (by all except the trial court, the Court of Appeal and my six colleagues) is that a strong showing of “arising out of” justifies compensation even though there is a weak showing of “in the course of employment”. See Lisonbee v. Chicago Mill and Lumber Company, 278 So.2d 5 (La., 1973) and Turner v. U.S.F. & G., 339 So.2d 917 (La.App. 3 Cir.1976); writ granted to remand for settlement, 341 So.2d 414 (La., 1977). And see the tragic “chicken catcher” case of Mitchell v. Employers Mutual Liability Insurance Company, 341 So.2d 35 (La.App. 3 Cir.1977); particularly, this writer’s concurrence at 341 So.2d 42.

Here the injury arose completely out of the employment hassle, the firing of Dickerson and relator’s participation. Thus, there was a very strong “arising out of” showing. The “course of” showing was weak; not on the premises or during work hours, but there was some connection in that the men were riding home from work.

Therefore, with a strong showing of one factor, and a weak showing of the other, the injury is compensable. Here is a worker who sustained a broken leg solely because of the part he played in a fellow employee’s firing. Is there any logical reason why he should not receive compensation benefits?

Brumfield’s writ should be granted.

      . For an even stronger case in point, but outside Louisiana, compare Scholl v. Industrial Commission, 366 Ill. 588, 10 N.E.2d 360 (Ill.1937) where a foreman was shot on his way to work by an employee he had fired about two months earlier.


author: PER CURIAM.

text:
    STATE of Louisiana v. Brady McCLENDON.
    No. 82-KA-0519.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
   PER CURIAM.

REVERSED. This misdemeanor guilty plea, entered on October 7, 1981, is controlled by State v. Jones, 404 So.2d 1192 (La.1981), which was rendered on September 10, 1981. See State v. Moore, 416 So.2d 1298 (La.1982). Because the trial judge did not advise defendant of his right to trial by jury, to which defendant was entitled under the decision in State v. McCarroll, 337 So.2d 475 (La.1976), the plea must be set aside as not knowingly entered. The case is remanded for further proceedings.