author:
BLANCHE, Justice.
     MARCUS, Justice DENNIS, Justice,

text:
    STATE of Louisiana v. Ralph HOLMES, Jr.
    No. 65846.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Dissenting Opinion Sept. 24, 1980.
    Rehearing Denied Oct. 6, 1980.
    Marcus, J., concurred and filed opinion.
    Dennis, J., dissented and filed opinion in which Calogero, J., concurred.
    Dennis, J., dissented on denial of'rehearing and filed opinion.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Ralph Roy, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
    Ralph W. Stephenson, Jr., Office of Public Defender, Alton Moran, Baton Rouge, for defendant-appellant.
   BLANCHE, Justice.

On January 5, 1979, Ralph Holmes, Jr., Robert Williams and Permella Williams participated in an armed robbery of an A & P Food Store in Baton Rouge, Louisiana. During the robbery, Robert Williams shot the security guard in the face, at close range, with a sawed-off shotgun. He was instantly killed. The assistant manager and a customer were shot in the foot by the same shotgun, and one customer was pistol-whipped. Permella Williams was the driver of the getaway car and, subsequently, turned state’s evidence.

Robert Williams was convicted of first degree murder and was sentenced to death. The defendant, Ralph Holmes, was also convicted of first degree murder, but was given life imprisonment without benefit of probation or parole.

Ralph Holmes’ participation in the robbery and murder of the security guard is summarized as follows. The car for the robbery was furnished by Ralph Holmes, and it was through him that the trio visited Tyrone Clark’s home for the purpose of obtaining the sawed-off shotgun and shells used in the crime. Because of the poor condition of the shotgun, the trio then went to the home of Andrew Robinson, who evidently had some experience in repairing guns. At trial, Robinson claimed that he could not repair the gun but, nevertheless, reassembled it and returned it to them. Thereafter, the trio drove to the A & P Food Store where Permella then entered, purchased some juice and, after paying for the juice, returned to the car. Upon her return, Robert Williams and the defendant, Ralph Holmes, set out for the store with Robert carrying the shotgun under his coat. Upon entering the store, both men slipped ski masks over their heads and approached the second register where the security guard, Willie Kelly, was helping to bag groceries. Defendant Holmes tried to remove Kelly’s pistol while Williams positioned himself behind the second register. When Kelly realized what was happening, he reached for his holster in an attempt to either unstrap or pull the pistol from its holster. As soon as the 67-year-old Kelly moved, Williams produced the 12-gauge sawed-off shotgun from beneath his coat and pointed it directly at the guard’s face. Williams hollered, “Don’t try it”, and immediately, shot Kelly in the face killing him instantly.

After Holmes finished unholstering the pistol, he went to the store safe and began removing the money. Williams ordered one of the customers to open a register. When the customer was unable to do so, Holmes stuck the pistol in his back and told him if he didn’t comply, he would die. When Holmes became impatient, he pistol-whipped him. Meanwhile, Williams accidentally shot two people in the foot.

Upon completing the robbery, Holmes and Williams ran to a nearby Interstate ramp where Parmella picked them up. The trio then divided the cash, discarded the weapons, and fled to New Orleans, where they were apprehended approximately one week later.

Assignment of Error Number 1

By this assignment, defendant contends that the trial court erred in refusing to grant his motion for a preliminary examination. The defendant filed a motion for a preliminary examination after an indictment was returned charging him with first degree murder. This motion was denied by the trial court without a hearing. Although conceding that the grant of a preliminary exam after grand jury indictment rests within the discretion of the trial court under La. C.Cr.P. art. 292, the defendant maintains that the denial of his motion deprived him of equal protection of the law by failing to provide him with the same procedural provisions afforded those charged via bill of information.

In State v. Qualls, 377 So.2d 293 (La. 1979), this Court rejected a similar argument that C.Cr.P. art. 292 denied indicted defendants equal protection. As noted in Qualls, the primary function of the preliminary exam is to ensure that probable cause exists to hold the accused in custody. Once a valid indictment is returned by a grand jury, the existence of probable cause is conclusively presumed since the grand jury’s indictment is constitutionally permissible and a reasonable alternative to a preliminary hearing. Qualls, supra, at 296.

We reiterate our position, as stated in Qualls, that:

“The indictment of the grand jury, together with the statutory safeguards now provided defendant by Louisiana’s Discovery and Inspection statute, La. Code Crim.Pro. arts. 716-723, and other procedural safeguards, coupled with the availability of extraordinary relief in our district courts and the State Supreme Court, are sufficient to protect an accused from discriminatory treatment and unfounded accusations or the denial of equal protection of the laws under this State’s Constitution.” Qualls, supra at 296.

Therefore, this assignment is without merit.

Assignment of Error Number 4

By this assignment of error, the defendant argues that the trial court erred in refusing to give the following instruction on specific intent to the jury:

“In order to convict this defendant of first degree murder, you must find beyond a reasonable doubt that he personally desired the death of Willy Kelly, or that great bodily harm occur to Willy Kelly. If you do not find beyond a reasonable doubt that this defendant had such specific intent you must acquit him of first degree murder, and you may not attribute to him any such specific intent which may have existed on the part of another person.”

The court refused to give this charge, but chose to charge the jury as follows:

“The law as to principles reads as follows: All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission or directly or indirectly counsel or procure another to commit the crime are principals. One who aids and abets in the commission of a crime may be charged and convicted with a higher or lower degree of crime depending on the mental element proved at trial. The first degree murder statute, with
“Q. Now, on the question of specific intent, the Court is going to instruct you, if you are selected, on what is required to prove first degree murder. One of the things that the Court will tell you is that it must be found, all of these things happened, and in addition, this accused person, not someone else, had the specific intent to kill or inflict-MR. ROY: Judge, I would like to take strenuous objection to that statement as being an incorrect statement of the law.” which this defendant is charged, requires proof of specific intent on the part of this defendant. I have previously read to you the definition of specific criminal intent.” (Tr. 342-343).

La.C.Cr.P. art 807 requires that the trial judge give a requested charge which does not require qualification, limitation or explanation and is not included in the general charge or another special charge, if it is correct and pertinent to the case. State v. Badon, 338 So.2d 665 (La.1976); State v. White, 254 La. 389, 223 So.2d 843 (1969).

We note that the requested charge is substantially included in the charge given by the judge. Requested charges which are already substantially given and covered by the general charge are properly refused. State v. Matthews, 380 So.2d 43 (La.1980). For this reason, the requested instruction was properly refused.

This assignment is without merit.

Assignments of Error Numbers 2 and 3

By these assignments, the defendant contends that the trial court erred in permitting the state to present hypothetical situations to prospective jurors and by allowing the prosecution to incorrectly inform the jury on the law of principals.

Our review of the record indicates that the prosecution erroneously felt that all that was necessary to establish the defendant’s guilt of first degree murder was proof that the defendant was knowingly involved in the armed robbery which resulted in Willie Kelly’s death.

During voir dire examination, the prosecutor attempted to explain Louisiana law of principals, La.R.S. 14:24, by means of hypothetical situations. The basic hypothet concerned three persons who were planning a bank robbery. One of them surveyed the scene at the bank, met with the others, and gave them a sketch of the scene. Later, the other two go to the bank, with one of them driving the car, leaving the first person at his apartment. The passenger-bandit goes into the bank and, at gunpoint, completes the robbery. The prosecution’s inquiry continued as follows:

“The fellow who goes into the bank and at gun point gets the money from the teller is of course guilty of what we know as armed robbery. But, according to the law, if the facts are as I have stated them to you, according to the law of this State, the fellow in the car and the one out there in that apartment are equally guilty of armed robbery, you see. Because the law says that when two or more people get together and agree to commit a crime that each one is an agent for the other. That each one is responsible for what the other does, and the other is responsible for what he does. And it is in that way that the man in the car and the one at the apartment are guilty of armed robbery; although, they had no gun and they weren’t in the bank at the time of the robbery. Now, that’s the law, you see. You can understand that the law says that people can be legally criminally responsible; although, factually they might not be equally involved.”

The district attorney then took his hypothet one step further, as follows:

“You can very well, in my hypothet to Mrs. O’Neil, I neglected to say, but you can very well see the problem that you might have with your conscience and with your soul and with yourself if the fellow in the bank had pulled the trigger and killed the teller. And the question would be, well, how about that fellow at his apartment ten miles away and the one sitting in the ear. They would be guilty of murder, a homicide.”

It is here that the district attorney erred. According to La.R.S. 14:24, principals include:

“All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet its commission, or directly or indirectly counsel or procure another to commit the crime.”

However, under R.S. 14:24, not all principals are automatically guilty of the same grade of offense. One who aids and abets in the commission of a crime may be charged and convicted with a higher or lower degree of the crime, depending upon the mental element proved at trial. State v. McAllister, 366 So.2d 1340 (La.1978). Thus, an individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. In the case of a first degree murder conviction, the requisite mental state is that the defendant had the specific intent to kill. It is not enough to find merely that his cocon-spirator or accomplice had the necessary mental state, since this intent cannot be inferred to the accused. It must be shown that this accused also had the specific intent to kill.

“Specific criminal intent is defined by Article 10(1) of our Criminal Code (LSA-R.S. 14:10(1)):
“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. (Italics ours.)
“It is contradistinguished from general criminal intent, which exists ‘when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act,’ Article 10(2), Criminal Code (LSA-R.S. 14:10(2)).”
“[5] In short, specific intent is present when from the circumstances the offender must have subjectively desired the prohibited result; whereas general intent exists when from the circumstances the prohibited result may reasonably be expected to follow from the offender’s voluntary act, irrespective of any subjective desire to have accomplished such result.” State v. Daniels, 109 So.2d 896 (La.1959) at 899.

The assistant district attorney’s hypothet was a valid one to explain the law of principals in crimes which require proof of only a general intent, but it did not go far enough. In general intent crimes, criminal intent necessary to sustain a conviction is shown by the very doing of the acts which have been declared criminal. Thus, in the case of armed robbery, when the proof shows that the perpetrator armed with a dangerous weapon causes another to surrender to him whatever was the object of the robbery, the necessary criminal intent has been furnished by the very doing of those criminal acts. If another is killed in the robbery by one of the co-conspirators of a robbery, the other co-conspirator may or may not be guilty of murder, depending upon all of the circumstances surrounding his involvement in the robbery, which finally resulted in the murder of the victim. Proof of one person’s intent is not proof of another’s intent. Thus, it is necessary as to the co-conspirator who did not pull the trigger that the circumstances indicated that he also actively desired the death of or great bodily harm to the victim.

Contrary to the claims of the district attorney, where specific intent is required, one co-conspirator does not necessarily act as the agent for the other. The state has as to the accused on trial the burden of proving his specific intent beyond a reasonable doubt.

There is no doubt that the prosecutor was laboring under a misconception of the law and that he conveyed this misconception to the jury. However, improper statements of the law during voir dire do not always require a reversal. State v. Burge, 362 So.2d 1371 (La.1978). In Burge, this Court found that the prosecutor’s discussions of the defenses of insanity and intoxication were erroneous. But the jury was given the proper explanation during the judge’s instructions.

In the instant case, the trial court gave the following correct instruction on the law of principals and the necessity for the proof of specific intent:

“The law as to principals reads as follows: All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission or directly or indirectly counsel or procure another to commit the crime are principals. One who aids and abets in the commission of a crime may be charged and convicted with a higher or lower degree of crime depending on the mental element proved at trial. The first degree murder statute, with which this defendant is charged, requires proof of specific intent on the part of this defendant. I have previously read to you the definition of specific criminal intent.” (Tr. 342-343).

This charge is coupled with the admonition that:

“You as jurors are the sole judges of the law and the facts in the case but you must take the law as the court gives it to you.”

Thus, we find that although the prosecutor misstated the law, this does not constitute reversible error where the trial court’s instruction properly summarized the law.

For these reasons, the assignments are without merit.

Assignments of Error Numbers 5 and 6

By these assignments, the defendant contends that there is total lack of evidence of an essential element of the crime. The defendant maintains that the state failed to introduce evidence of the defendant’s specific intent to kill or inflict great bodily harm.

As discussed previously, the defendant is correct that there must be proof of specific intent on the part of Ralph Holmes in order to convict him of first degree murder. Thus, the state must show that the defendant actively desired the prescribed criminal consequences to follow his act or failure to act. R.S. 14:10.

However, specific intent is a state of mind and, as such, it need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Williams, 383 So.2d 369 (La.1980); State v. Procell, 365 So.2d 484 (La.1978); State v. Elzie, 343 So.2d 712 (La.1977).

In establishing the rule as to circumstantial evidence, La.R.S. 15:438 provides:

“The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

Applying this principle to the facts herein, we find that the state has eliminated every reasonable hypothesis of innocence. Although the defendant could argue that his actions were simply meant to intimidate the victims this is, in light of the evidence adduced at trial, an unlikely possibility. Under R.S. 15:438, the circumstantial evidence need not exclude all possibilities of innocence but only all reasonable hypotheses of innocence. We find that the proof herein does eliminate these hypotheses.

The evidence at trial proved the defendant’s considerable involvement in the planning and execution of the robbery. In fact, Ralph Holmes was the one who obtained the shotgun and placed it in the car. In light of this proof, along with his acquiescence in the shooting of Kelly and his own threats to kill, it is reasonable to infer that he intended the use of deadly force, if necessary, to effectuate the robbery.

Traditionally, this Court has sustained a motion for a new trial only when there is a total lack of evidence to prove the crime or an essential element thereof. However, in the instant case, whether the traditional standard of review or the Jackson standard, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is employed, there is sufficient evidence to support the findings of the jury.

For these reasons, the assignment is without merit.

For the reasons assigned, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

DIXON, C. J., concurs.

MARCUS, J., concurs and assigns reasons.

DENNIS, J., dissents with reasons.

CALOGERO, J., dissents for reasons assigned by DENNIS, J.

MARCUS, Justice

(concurring).

I concur in the affirmance of defendant’s conviction and sentence; however, I question the majority’s treatment as to what a principal’s mental state must be in order to hold him accountable for an offense committed by another, i. e., whether a principal must have the same mental state required by the statute for the perpetration of a crime (Assignments of Error Nos. 2 and 3). In this case, the issue is of no moment since the majority found that defendant as principal had the specific intent to commit the crime. Accordingly, I respectfully concur.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The defendant was convicted of first-degree murder due to his status as a principal in the killing of the security guard. In order to justify this conviction, this Court must be convinced, after reviewing the evidence in a light most favorable to the prosecution, that any rational trier of fact could have found each essential element of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In this case, a first-degree murder prosecution, an essential element of the crime is that the offender must have a specific intent to kill or inflict great bodily harm when the killing is accomplished. La.R.S. 14:30, Acts 1976 No. 657 § 1. In my opinion, the state failed to show that Holmes ever had a specific intent to kill or inflict great bodily harm during the perpetration of the armed robbery in which Robert Williams killed the security guard.

Specific 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). General intent, on the other hand, “is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” La.R.S. 14:10(2). Because of the difficulties of finding direct evidence of a state of mind, a jury may properly infer intent from circumstantial evidence which excludes every reasonable hypothesis of innocence. La.R.S. 15:445, State v. Elzie, 348 So.2d 712 (La.1977).

This Court held in State v. McAllister, 366 So.2d 1340 (La.1978), that one who aids and abets in the commission of a crime may be charged and convicted with a higher or lower degree of crime depending on the mental element proved at trial. For example, the actual perpetrator of the crime may act in hot blood, in which case he would be guilty of manslaughter, while the instigator may act coolly and thus be guilty of murder. See Wharton’s Criminal Law §§ 269, 176 (12th ed. 1932).

Our holding in McAllister accords with the prevailing view in other jurisdictions. See State v. Grebe, 461 S.W.2d 265 (Mo. 1970); Oaks v. Patterson, 278 F.Supp. 703 (D.C.Colo.1968); see also LaFave and Scott, Criminal Law § 64 (1972); Perkins, Criminal Law, pp. 657 et seq. (2d ed. 1979); Wharton, Criminal Law § 274 (12th ed. 1932). LaFave and Scott provide a useful analysis of the issue:

“The notion that the accomplice may be convicted, on an accomplice liability theory, only for those crimes as to which he personally has the requisite mental state, is applicable in a variety of circumstances .... [Tjhis limitation has proved most significant in the homicide area, where the precise state of mind of the defendant has great significance in determining the degree of the offense .... Thus, because first degree murder requires a deliberate and premeditated killing, an accomplice is not guilty of this degree of murder unless he acted with premeditation and deliberation. And, because a killing in a heat of passion is manslaughter and not murder, an accomplice who aids while in such a state of mind is guilty only of manslaughter even though the killer is himself guilty of murder. LaFave and Scott, Criminal Law § 64 at 507 (1972).

This distinction between persons concerned in the commission of a murder according to their respective states of mind is not only dictated by Louisiana’s statutes but also by the constitution as reflected in the death penalty cases.

The legislature has drawn a clear distinction between an offender who participates in a homicide with the specific intent to kill or to inflict great bodily harm and a person who without such specific intent participates in criminal activity resulting in a homicide. At the time of the crime in the present case, first degree murder was defined as a killing of a human being when the offender “has a specific intent to kill or to inflict great bodily harm.” La.R.S. 14:30; Acts 1976, No. 657. Second degree murder was defined as the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of certain enumerated felonies, including armed robbery, “even though he has no intent to kill.” La.R.S. 14:30.1; Acts 1978, No. 796. Thus, it appears that the lawmakers meant to employ the felony-murder rule in defining second-degree murder, but intended that each defendant exposed to the death penalty for the commission of first-degree murder must have had the specific intent to kill or seriously harm the victim. Indeed, although the Supreme Court has approved the imposition of capital punishment for the crime of murder “when a life has been taken deliberately by the offender,” Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), it is highly doubtful that this extreme sanction would be held suitable to unintentional homicides.

Applying these rules to the present case, Holmes’ first-degree murder conviction and sentence should be reversed because the evidence in this record does not justify a finding beyond a reasonable doubt that Holmes specifically intended to kill or inflict great bodily harm upon Willie Kelly, the victim. The evidence may support a finding that Holmes intended to participate in armed robbery with Williams, that Holmes intended to use deadly force if necessary to commit the robbery and escape, or that Williams specifically intended to kill Kelly. The evidence clearly does not support, however, a finding that Holmes actively desired or specifically intended Kelly’s death or harm.

The evidence of Holmes’ involvement in the planning and preparation for the crime does not indicate his active desire that anyone be killed or seriously harmed. The procurement of the shotgun may reflect a willingness to use deadly force to successfully commit the robbery, but it does not eliminate the reasonable hypothesis that Holmes had no active desire for bloodshed. In fact, Holmes’ failure to make certain that the unrepaired shotgun would work casts more than a reasonable doubt on the proposition that he specifically intended to kill or inflict great harm.

The commission and aftermath of the crime reveal no evidence from which it can be inferred that Holmes actively desired that the victim, Kelly, should be killed or harmed. At the time Kelly was shot by Williams, Holmes was attempting to unhol-ster the guard’s pistol, an act more consistent with sparing his life than taking it. The evidence is clear that Holmes had no opportunity to protest during the split second which elapsed before Williams made good his threat to shoot Kelly. Considering that Holmes was standing beside the victim when Williams blasted the shotgun in their direction, it is highly doubtful that Holmes actively desired that the shotgun should have been fired at that moment. Moreover, Williams had ample opportunity to shoot the guard before Holmes began to unstrap his pistol, and the shotgun was not fired until the guard reached toward his weapon-an even further indication that the guard’s death was unexpected and unplanned by Holmes. It is true that Holmes continued to participate in the robbery and escape without expressing remorse over the killing. Nevertheless, none of these acts by Holmes indicates his specific intent that Kelly should have been killed. On the contrary, if killing had been one of Holmes’ active desires, he could have shot other persons in the store with the guard’s pistol.

The seriousness of Holmes’ criminal conduct should not be deprecated. Indeed, at the time of his offense the legislature made a killing in the course of armed robbery, even without specific intent, punishable as second degree murder by imprisonment at hard labor for life without parole, probation, or suspension of sentence for forty years. This sentence is less severe than the one meted out in this case only in allowing the defendant to be considered for parole after forty years. Yet, we must not lose sight of the fact that the defendant in this case was convicted of first-degree murder, potentially a capital offense. When this Court reviews a prosecution in which a defendant’s life has been at stake, it should be particularly sensitive to insure that every safeguard has been observed and will be observed in all future first degree murder prosecutions.

Under any standard of review arguably applicable to this case, the evidence is entirely insufficient to support a finding that Holmes specifically intended to kill or to inflict great bodily harm on the victim. The record is completely devoid of any direct evidence that Holmes actively desired the death or harm of the victim; therefore, it cannot be said that there is “some evidence” of Holmes’ specific intent. Next, applying our statutory circumstantial evidence rule, it cannot be said that the evidence excludes every reasonable hypothesis of innocence of the charged offense. See La.R.S. 15:438. On the contrary, the evidence pregnantly supports a reasonable hypothesis that Holmes had no active desire to kill or harm Kelly.

Finally, viewing the evidence in a light most favorable to'the prosecution, no rational trier of fact could have found beyond a reasonable doubt that Holmes actively desired Kelly’s harm or death. See Jackson v. Virginia, supra.

ON APPLICATION FOR REHEARING

DENNIS, Justice, dissenting to denial of rehearing.

I respectfully dissent to the denial of the application for rehearing for the reasons I assigned originally, and additionally, for the Court’s refusal to request supplemental briefs to allow more extensive consideration of serious legal questions which the indigent defendant did not address in his application.

       Honorable Edward A. de la Houssaye, III participated in this decision as Associate Justice pro tempore.

      . On appeal, Williams’ conviction and sentence were affirmed, 383 So.2d 369 (La. 1980), and his application for rehearing was denied May 19, 1980.

      . This misconception is apparent in the state’s objection to the following defense inquiry:


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Bruce SHANNON. STATE of Louisiana v. Bruce SHANNON.
    Nos. 66267, 61516.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Rehearing Denied Oct. 6, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joseph Meyer, Louise Korns, Asst. Dist. Attys., for the State.
    Grisbaum & Kleppner, Ferdinand Kleppner, Metairie, for Bruce Shannon.
   CALOGERO, Justice.

Bruce Shannon was convicted of attempted second degree murder and sentenced to serve forty years at hard labor. He appealed from both his conviction and sentence, relying on twenty-one assignments of error. While the appeal was pending before this Court, defendant filed a motion for a new trial based upon newly discovered evidence. This Court, without reaching the merits of defendant’s appeal, remanded the case to the district court for a hearing on the motion for a new trial. State v. Bruce Shannon, 360 So.2d 193 (La.1978). After the hearing, the trial court denied the motion. We granted writs in this case to review the trial court’s denial of defendant’s motion, and consolidated this review with defendant’s appeal.

The facts involved are essentially as follows: During the early morning hours of May 6, 1976, Ronald Receli and at least three other persons were driving in the French Quarter in New Orleans in route from one bar to another. Receli had just turned onto Bourbon Street from Conti when he observed defendant and a woman, one Kathy Mantegna, attempting to cross the street on foot in front of him. Reeeli shouted to the couple to get out of his way and made a racial slur. Defendant and Ms. Mantegna stepped back at that point. As Reeeli passed the couple, a drink was thrown. Defendant and Ms. Mantegna contend that Reeeli threw the drink on them. State’s witnesses contend that defendant threw the drink on Reeeli. In any event, Reeeli stopped his car. Defendant walked over to the car, placed his hands on the ledge by the driver’s window and began talking to Reeeli. According to defendant’s account, Reeeli reached under his seat and grabbed a pistol which he began to raise towards defendant. At this time, defendant contends that he pulled out his own gun and shot Reeeli in self-defense. Ms. Mantegna could only partially corroborate defendant’s version. While she did not say she saw Receli’s gun, she did say she saw Reeeli lean down and over and start to come back up just before Shannon shot Reeeli. State’s witnesses contend that Re-celi did not grab a gun but was wiping the drink from his face when defendant shot him. However, a gun was found in Receli’s car right after the incident under the driver’s seat.

During the state’s presentation of its case, Castañedo, a passenger in the Reeeli car on the night of the incident, testified that there were four persons in the car. These included himself, Reeeli, Dilts and Lambert. Neither Dilts nor Reeeli testified at the trial. On cross-examination, Lambert, another passenger in the Reeeli car, who testified after Castañedo, admitted that there may have been a fifth passenger in the car at the time of the shooting but testified that he did not know who that fifth person was.

Defendant now contends (and showed this with - the evidence presented at the hearing on the motion for a new trial) that he has new evidence to the effect that there were definitely five passengers in the car on the night of the shooting and that the fifth passenger, Victor “Rocky” Soto, saw the whole incident and will testify that Receli did in fact grab the gun from under his seat and raise it towards the defendant and the defendant then shot Receli in self-defense. In vjew of this new evidence defendant contends that he should be given a new trial. As stated above, the district court has denied defendant’s motion for a new trial and that ruling is now .before us for review.

La.C.Cr.P. art. 851 regarding a motion for a new trial provides:

“The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case, the motion shall be denied, no matter upon what allegations it is grounded.
“The court, on motion of the defendant, shall grant a new trial whenever:
“(3) New and material evidence, that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;

After reviewing this new evidence in light of all the other evidence presented at the trial, we are convinced that had this evidence been introduced at trial a different verdict would probably have been reached. The test for whether a new trial should be granted is not simply whether another jury might bring a different ver-diet but whether the new evidence is so material that it ought to produce a different result than the verdict reached. State v. Williams, 362 So.2d 530 (La.1978); and State v. Lovett, 359 So.2d 163 (La.1978). The new evidence sought to be introduced in this case meets this test.

Q. Did you tell the police about this other man that was with you all that night?
A. I just told them what happened to me.
Q. You didn’t tell them?
A. They didn’t ask me, I don’t believe, I don’t recall them asking me who was in the car.

The new evidence consists of the testimony of an eye-witness to the shooting which contradicts the testimony of the state’s other witnesses and corroborates the testimony of the defense witnesses. Moreover, this testimony comes from a friend of the victim, one who had known the victim for some ten or twelve years, and one who, at the time of the incident, was a stranger to the defendant. Mr. Soto testified that he had been with Receli since about 4:00 o’clock that afternoon and that the two men had been drinking all evening since that time. Mr. Soto also testified that Receli did reach under his front seat and grab his gun (which he always kept there) and raise it towards defendant right before defendant shot him. He stated that Receli had taken the gun out earlier in the evening, prior to the time Castañedo, Lambert and Dilts joined them, and was playing with it and that Receli told Soto at that time “I would like to shoot me somebody. . . . ” Because of this prior incident, Soto testified that he was watching for Receli to go for the gun which might be why he saw Receli grab the gun while the other passengers did not. Further, Soto testified that having been friends with Receli for several years he had been drinking with him several times and that Receli often became aggressive when he drank. In view of defendant’s plea of self-defense, and the nature of this testimony in relation to the other testimony, it is clear that this evidence bears directly on a disputed issue, meets the test outlined above and is sufficiently material to justify the granting of a new trial. State v. Glover, 73 So. 843 (1917).

Q. Are you absolutely sure you don't remember this other man’s name?
A. I don’t remember.” (emphasis provided)

Now we face a second question concerning the new evidence; whether the new evidence was not discovered before or during trial, notwithstanding the exercise of reasonable diligence by the defendant. The trial judge denied defendant’s motion for a new trial believing that defendant’s failure to discover this new evidence before or during the trial was due to a lack of reasonable diligence on his part. We conclude, to the contrary, that it was not.

At the hearing on the motion for the new trial, defendant testified that while in Parish Prison, in October of 1976, awaiting trial, he met Henry Soto, another prisoner on defendant’s same tier. Defendant testified that Henry Soto told him, as he departed for court on the morning of his trial, that Henry’s nephew, one “Rocky” Soto, “might have been in the car.” Mr. Lindsey Larson, one of defendant’s attorneys, testified that defendant first told him what Henry Soto had said that morning, during the trial of defendant’s case just before Lambert took the stand. Thus, during the defense cross-examination of Lambert, after Lambert testified that there were only four passengers in the car, counsel asked him if “Rocky” Soto was a fifth passenger in the car on the night of the incident. Lambert stated that he did not recall, but did admit that there may have been a fifth passenger (see Footnote 5). At this point, counsel requested that he be allowed to recall Castañedo, another passenger in the Receli car, who had testified earlier (before counsel was aware of the possible fifth passenger) that there were only four passengers in the car. The court denied the defense request and defense counsel objected to this ruling assigning it as error. After being denied two requests to recall Castañedo under cross-examination, counsel dropped the matter.

It was not until after defendant was convicted and sentenced that he happened to meet one Victor “Rocky” Soto in Parish Prison. At that time Victor Soto told defendant that he was in Receli’s car at the time of the shooting. He said that he left the scene of the incident because he was on federal parole at the time, had just been released from prison six months earlier and did not want to be involved in an incident involving a gun. It was only at this time that defendant actually found out that “Rocky” Soto’s name was Victor Soto and that he would admit that he was in the car on the night in question, that he would testify if called upon to do so, and would corroborate defendant’s account of the facts, i. e. that Receli pulled out a gun and was raising it towards defendant before defendant shot Receli.

The trial judge indicated that the exercise of reasonable diligence by defense counsel would have uncovered the witness before or during trial. We disagree. Both defense attorneys testified that they interviewed both Castañedo and Lambert, and possibly Dilts (the fourth passenger who was not called as a witness) well in advance of trial. All witnesses interviewed stated that there were only four passengers in Receli’s car at the time of the incident. These three men, plus Receli, were the only persons listed as passengers in the car on the police report of the shooting. There was simply no reason, prior to trial, that the defense should have suspected that there were in fact five passengers in the car. Prior to defendant’s conversation with Henry Soto, on the morning of the trial, no one ever even alluded to the fact that there may have been more than four passengers in the Receli car. Therefore, there is no way the defense, with the exercise of reasonable diligence, could have found out about this witness prior to trial.

The only question that remains is whether the exercise of reasonable diligence would have uncovered this witness during the trial.

After defendant spoke to Henry Soto on his way to his trial, all defendant knew, at that time, was that a “Rocky” Soto (defendant did not even know this person’s real name but only a nickname) “might” have been in Receli’s car at the time of the shooting. When defendant tried to confirm this information through cross-examination of Lambert (the passenger sitting right next to Soto), Lambert stated that he did not know if there was someone sitting next to him or not and if there was he did not know whether it was Rocky Soto or not, although he believed there may have been a fifth passenger. In a further attempt by defendant to conform this information, defendant requested that Castañedo be recalled to the stand, but this request was erroneously refused by the trial judge on two separate occasions. The trial only lasted about seven hours, from jury selection to verdict, and defendant simply did not have any time during this trial independently to verify his information after being denied his request to recall Castañedo, a witness who could have verified it. Therefore, in view of the trial court’s erroneous denial of defendant’s request to recall Cas-tañedo, and the facts unique to this case as stated above, we conclude that defendant’s failure to discover Soto’s testimony prior to or during his trial was not due to a lack of reasonable diligence on his part.

It should be noted that the court’s failure to allow the defense to recall Castañedo to the stand is very important to our holding here. Had the defense been allowed to re-examine Castañedo and to confirm the presence of Soto in Receli’s car on the night in question and then had he neglected to request a recess to try and find this witness, the result here might be different. It is this trial error, in conjunction with the fact that in advance of trial all passengers in the car had denied the presence of a fifth passenger, which brings us to the conclusion that the failure to obtain this testimony prior to or during the trial was not because of a lack of reasonable diligence on the part of the defense.

It has been argued that because the defendant had been informed that one “Rocky” Soto may have been in Receli’s car on the night of the shooting, that the defendant did in fact know of the evidence “before or during the trial” and that his motion for a new trial based on newly discovered evidence should be denied. This same argument was presented in State v. Brooks, 386 So.2d 1348 (La.1980).

In Brooks, the defendant had been charged with distribution of a controlled dangerous substance. The state attempted to prove the commission of the crime by a police officer’s testimony that the officer was brought to defendant’s house by one Allen Russell to purchase marijuana and did in fact purchase marijuana at that time from the defendant. The officer’s testimony at trial was the first intimation the defense had that there was anyone else present at the time of the alleged drug sale. The state did not call Russell to the stand and the defense did not ask for a recess or a subpoena to have Russell brought to court. It was not until after the trial and conviction that the defense had a chance to interview Russell, who then told them that he had never seen the officer and never witnessed a drug sale by the defendant. The trial court denied defendant’s motion for a new trial based upon newly discovered evidence, being of the opinion that the defendant knew of the evidence at the time of the trial. Justice Blanche, speaking for the Court, reversed the trial court, holding that “[t]he existence and identity of a witness, without any knowledge of what that witness’ testimony may be, does not in these circumstances constitute evidence discovered at the time of trial.”

In the present case, defendant had even less certainty about the possible witness than did the defendant in Brooks. Here, defendant had only been told, on his way to court, by a fellow inmate, not by a state’s witness at trial, that a “Rocky” Soto may have been in the victim’s car on the night in question. Defendant here, unlike Brooks, was not even certain that “Rocky” Soto was definitely at the scene. Therefore, we find Brooks persuasive, if not controlling, under the facts presented here and find the state’s argument that defendant knew of the evidence at the time of the trial unconvincing.

Because the defendant’s failure to discover Victor “Rocky” Soto’s testimony before or during the trial was not due to a lack of reasonable diligence on his part, and because the introduction of this new evidence would have probably changed the verdict of guilty, we conclude that the motion for a new trial should have been granted. Denial thereof constitutes reversible error.

In view of our holding we do not reach the other assignments of error presented in defendant’s appeal.

Decree

For the foregoing reasons the trial court’s ruling denying defendant’s motion for a new trial is reversed, defendant’s conviction and sentence are set aside and the case is remanded to the district court for a new trial.

REVERSED.

      . On remand, the trial court began a hearing on defendant’s motion for the new trial, but denied the motion without permitting the defendant to call to the stand an eyewitness whose testimony constituted the alleged newly discovered evidence. Upon application by defendant for writs at that time, this Court unanimously granted writs and rendered an order requiring the trial judge to permit the defendant to call all his witnesses in support of his motion prior to ruling on the motion. State v. Shannon, 367 So.2d 864 (La.1979). Subsequently, defendant was required to file two additional writ applications with this Court before his eyewitness was brought before the trial court to testify. State v. Shannon, 369 So.2d 710 (La.1979) and State v. Shannon, 371 So.2d 267 (La.1979). Finally, defendant filed a fourth writ application with this Court asking that we order the trial judge to rule on his motion. When this Court did order the trial court to rule on the motion [State v. Shannon, 375 So.2d 392 (La.1979)], the motion was denied.

      . The newly discovered evidence upon which defendant’s motion for a new trial is based indicates that there was a fifth person in the Receli car on the night of the shooting. Defendant asserts that the fifth passenger was Victor “Rocky” Soto.

      . Defendant was a white man employed at the time as a body guard for Chris Owens. Defendant carried a gun with him as Ms. Owens’ body guard because he took her home every night and she sometimes carried large amounts of cash with her. The woman, Ms. Mantegna, a black woman, was also employed at Chris Owens’ club at the time as a barmaid.

      . Dilts was not called as a witness by either the state or the defense. Reeeli was physically unable to testify.

      . Lambert’s testimony on cross-examination regarding how many persons were in the Reeeli car at the time of the shooting was as follows:
      Q. Did you go right to Mr. Receli’s car?
      A. Yes. His car was parked right out front.
      Q. And you were riding on the back seat, right behind the driver, is that right?
      A. Right.
      Q. And was Mr. Rocky Soto there with you that evening?

      A. Not that I recail.

      Q. Do you know Rocky Soto?

      A. No. Not that I can recall.

      Q. Pardon me?
      A. I don’t recall the name.
      Q. You don’t recall the name?
      A. No.
      Q. He wasn’t in the car with you at anytime?

        A. Not that I recall.

      Q. Was there anyone else in the car with you?
      A. David Dilts was in the car.
      Q. David Dilts, okay. David Dilts, Mr. Cas-tañedo, and you, is that right? A. Right.
      Q. Mr. Soto was not with you?

      A. I believe there was another person, maybe another person in the car.

      Q. Okay, now, this other person that was in
      the car with you, apparently was in the car at the time the shooting occurred, is that right?
      A. Right.
      Q. And what did he do?
      A. I don’t know what he did.
      Q. Where did he go?
      A. I don’t know.
      Q. And he was apparently with Mr. Reeeli at the time of the shooting?
      A. I really don’t know.
      Q. Isn’t it a fact that his name is Mr. Soto?

      A. I don’t know.

      Q. Where was he sitted (sic) in the car?
      A. He was sitted, (sic) I believe, in the back seat, as I said, I really don’t remember.
      Q. Is it correct then that in the Reeeli vehicle Mr. Reeeli was in the front left seat?
      A. Yeah, he was driving.
      Q. And Mr. Castañedo was in the right front seat, is that correct?
      A. Yes.
      Q. Is that right?
      A. Yes.
      Q. And you were in the left rear seat, behind Mr. Reeeli, is that right?
      A. Right.
      Q. And right next to you was Mr. Soto?
      A. I don’t remember if it was him or David Dilts.
      Q. So then there was a total of five people in the car, is that right?

      A. I believe so.

      . The court ordered the Clerk to procure the Parish Prison records to determine whether Henry Soto was in Parish Prison at the alleged time. The prison records were read into the record. They showed that Henry Soto was in Parish Prison during October 1976 (in fact, from September 15, 1976 through November 24, 1976) and on the same tier as defendant.

      . In defendant’s brief on appeal, defendant argues in assignments of error numbers 8 and 18 that it was error on the part of the trial court to deny his motion to recall Castañedo. Counsel argues that he was denied an opportunity to reach the truth in the case and also he was denied an opportunity to impeach the witness (Castañedo) in a case in which the resolution of a factual conflict and witness credibility would be determinative. Because we reverse on defendant’s motion for a new trial, we do not have to consider whether assignments of error 8 and 18, standing alone, are sufficiently meritorious to warrant a reversal of the conviction. Nonetheless, the ruling barring recall of Casta-ñedo under cross-examination was erroneous. The defendant’s constitutional right to produce evidence in defense and to confront (cross-examine) the witnesses against him far outweighs the trial judge’s discretion in maintaining an orderly presentation of the evidence. While we are mindful that the decision of whether a witness may be recalled for further cross-examination is left to the discretion of the trial judge, his ruling may be reversed where an abuse of discretion is shown. State v. Banks, 362 So.2d 540 (La. 1978). Here, the defense did not have an opportunity to cross-examine Castañedo concerning the number of passengers in the car because they only came upon the information after he was excused. Thus, the only way the defense could have examined Castañedo about this information and have impeached him by showing that there were five passengers rather than four, as he had earlier testified, was to recall him under cross.

      .The trial judge also requested the Parish Prison records concerning Victor Soto and found that they also corroborated defendant’s story, that Victor Soto was in Parish Prison from January 11, 1977 until January 17, 1977, and both men were on tier A2.

      . The defendant did not know how many passengers were in the car. He stated that he did not get a good look because everything happened so fast and his focus was mainly on Receli. Ms. Mantegna did not know how many passengers were in the Receli car either.

      . The court minutes show that on Wednesday, November 17, 1976, court met at 9:00 a. m. and jury selection commenced. The jury returned its verdict at 4:25 p. m.

      .The only thing the defense could have done was to ask for a recess so that they could try and locate one “Rocky” Soto. His neglect to do so is excused, in our view, by the fact that defendant’s information was so tenuous. Not only was defendant uncertain as to whether Soto was actually in the car but defendant had absolutely no hint as to what Soto’s testimony would be if he was in the car and could be found during the course of a brief one day trial.


author: DIXON, Chief Justice. MARCUS, Justice

text:
    Leroy JONES et ux. v. The CITY OF BATON ROUGE-PARISH OF EAST BATON ROUGE.
    No. 66480.
    Supreme Court of Louisiana.
    Sept. 3, 1980.

      Walter G. Monsour, Jr., Parish Atty., Frank J. Gremillion, J. Dawson Gasquet, Asst. Parish Attys., for defendant-applicant.
    Joel B. Dickinson, Joel B. Dickinson & Associates, Baton Rouge, for plaintiffs-respondents.
   DIXON, Chief Justice.

On a summer morning in 1977, plaintiffs were on their way to a church meeting when Mr. Jones stopped their car so that his wife could mail a letter. While he waited in the car, Mrs. Jones crossed the street to the mailbox at the opposite corner. As she began to return to the car by walking from the sidewalk back into the street, she stepped across the cover of a catch-basin. The cover suddenly gave way beneath her and she fell into the catch-basin, where the cover pinned her against its side.

Plaintiffs sued the City of Baton Rouge and East Baton Rouge Parish for damages sustained as a result of the accident. The trial court dismissed their suit, but the Court of Appeal reversed, awarding damages to plaintiffs. 376 So.2d 1003 (La.App. 1979). We granted writs to review that ruling.

At trial, plaintiffs were unable to produce any evidence that negligent acts or omissions on the part of defendants’ employees had caused the collapse of the cover. The doctrine of res ipsa loquitur could not be employed to provide an inference of negligence because the catch-basin cover, located as it was on a public street, was not under the exclusive control of defendants’ employees. Malone, Res Ipsa Loquitur and Proof by Inference, 4 La.L.Rev. 70 (1941); Annotation, 174 A.L.R. 608 (1948). The trial court noted that defendants’ liability might also be predicated on a different form of negligence, reasoning that they had a duty to correct the dangerous situation presented by the improperly positioned or broken cover, even if this danger had originally been created by third parties. However, a municipality has a duty to correct a dangerous street or highway condition— where that condition was not actually caused by the negligence of its own employees — only if it has actual or constructive notice of the existence of the condition. Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975). Because plaintiffs could prove neither that defendants had actual or constructive notice of the dangerous condition, nor that defendants’ employees caused the condition, they could not hold defendants liable on the ground of negligence.

The Court of Appeal approached the issue of defendants’ liability from a different perspective. In Langlois v. Allied Chemical Corp., 249 So.2d 133 (La.1971), we observed that negligence is only one form of the “fault” for which C.C. 2315 assigns the responsibility to respond in damages, and we indicated that article 2315 must be read in conjunction with certain other code articles which impose liability on other grounds, that is, for constructions, for activities, and by virtue of relationships. In Holland v. Buckley, 305 So.2d 113 (La.1974), we held that article 2321 allocates liability for the unreasonable risk of harm created by an animal to the owner of the animal, and that this liability is derived from the legal obligation established by the fact of ownership, not from any negligent conduct. In Turner v. Bucher, 308 So.2d 270 (La.1975), we extended this concept of legal fault, that is, fault without negligence, to the relationship between parents and their minor children, under article 2318. In Loescher v. Parr, 324 So.2d 441, 446 (La.1976), we found that article 2317 provides for the same type of “strict” liability on the part of an owner or custodian, for damages caused by things in his custody, and we described the legal foundation for this liability in the following terms:

“When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved. The liability arises from his legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others.”

Because the responsibility for preventing the unreasonable risk of injury to others is unconditional, the injured party seeking damages under article 2317 need not prove that any particular act or omission on the part of the defendant caused his injuries. He must only prove that the thing which caused the damage was in the care or custody of the defendant, that the thing had a vice or defect — that is, that it occasioned an unreasonable risk of injury to another — and that his injury was caused by the defect. Loescher v. Parr, supra, at 446-447; Verlander, Article 2317 Liability: An Analysis of Louisiana Jurisprudence Since Loescher v. Parr, 25 Loyola L.Rev. 263 (1979).

The issue presented by the Court of Appeal’s application of article 2317 to the facts of this case is whether municipalities and other public bodies may be held liable for damages caused by things in their custody. The First Circuit had already found 2317 applicable in two prior cases but in Gallien v. Commercial Union Ins. Co., 353 So.2d 1127 (La.App.1977), in the context of a fact situation almost identical to the one presented here, the Third Circuit found that article 2317 was inapplicable. The Court of Appeal based that determination on “the long line of jurisprudence to the effect that actual or constructive notice to a public body is a prerequisite to its tort liability.” 353 So.2d at 1130.

This statement of the law says both too little and too much. Proof of notice of the defect is indeed required when a plaintiff contends that a public body was negligent, either by virtue of specific conduct of its employees which created the dangerous situation (which is itself construed as notice), or by virtue of its failure to correct a dangerous condition caused by others. But, as we have demonstrated, negligence is only one of the footings on which the codal structure of tort liability rests. Where delictual responsibility is based not on negligence but on legal fault, under article 2317, a public body’s knowledge of the existence of the danger is irrelevant. Liability is a consequence of the fact of ownership and custody in itself, not of the breach of a duty.

In Gallien, the Court of Appeal also indicated that public bodies should not be subjected to liability under article 2317 because their vast operations and extensive property ownership would lead to “chaotic results.” However, Article 12, § 10 of the 1974 Constitution states that “[njeither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.” It is not the function of the courts to create an exception to this unequivocal constitutional rejection of the doctrine of sovereign immunity.

The only remaining question is whether the proofs required for the application of article 2317 have been made. From the testimony of defendants’ employees, it is clear that the catch-basin and its cover were in the care or custody of the defendants; other testimony shows that the cover’s defect was the cause of plaintiffs’ damages. It is also obvious that the cover was defective, in the sense that the risk of falling four or five feet into a catch-basin as a result of stepping upon a presumably solid, firm metal surface is unreasonable. Once these elements are proved, the custodian can escape liability only by showing that the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force. Loescher v. Parr, supra. Because none of these defenses was proved, defendants are liable for plaintiffs’ damages.

For the reasons stated, the judgment of the Court of Appeal is affirmed, at defendants’ cost.

BLANCHE, J., dissents.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I dissented in Loescher v. Parr, 324 So.2d 441 (La.1975), because I considered La.Civ. Code art. 2317 was intended by the redactors of the Civil Code of 1825 to be a transitional article, rather than an autonomous rule of civil liability. Loescher nevertheless interpreted art. 2317 as creating an autonomous rule of civil liability applicable to private things in defendant’s custody. Even assuming Loescher to be a proper interpretation of the law, however, I do not think the redactors ever intended art. 2317 to apply to public things, see La.Civ.Code arts. 448-453, such as the catch-basin in the instant case. In my view, this extension of Loeseher is unwarranted. Accordingly, I respectfully dissent.

      . Plaintiffs’ theory of the actual cause for the cover’s collapse was that it had been improperly positioned on the shelf on which it was meant to rest, while defendants’ evidence tended to show that the cover was cracked or broken.

      . C.C. 2317 provides, in pertinent part:
      “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have, in our custody.. . .

      . Durbin v. City of Baton Rouge, 366 So.2d 1020 (La.App.1978); American Road Ins. Co. v. Montgomery, 354 So.2d 656 (La.App.1978).


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Michael JOHNSON.
    No. 66544.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Jeffrey M. Bassett, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    Orleans Indigent Defender Program, Robert Barnard, New Orleans, for defendant-appellant.
   DIXON, Chief Justice.

In the early morning hours of January 10, 1978, a young man approached a cab driver at a filling station and asked him for change of a five dollar bill. As the driver reached into his taxi in search of coins, his interlocutor fired several shots at him, wounding him fatally, and fled with his money. A search of the premises occupied by Michael Johnson and his family uncovered the gun from which the fatal shots were fired, and a photograph of Johnson was tentatively identified as that of the assailant by an eyewitness to the murder and by another cab driver who was approached under similar circumstances a few hours before the crime. Johnson was charged with first degree murder, convicted of second degree murder, and sentenced to life imprisonment without benefit of parole for forty years. On appeal, he argues two assignments of error.

Assignment of Error No. 1

In this assignment of error, defendant contends that the court erred when it denied his motion for a mistrial on the ground of prejudicial references to his alleged commission of another offense. The state’s case against Johnson relied heavily upon evidence showing that pellets taken from the victim’s body at the scene of the crime matched the revolver recovered in a search of Johnson’s apartment some seven hours after the murder. As part of the development of this line of evidence, a police officer testified that he executed a search warrant at Johnson’s apartment on January 10, 1978. He also stated that the warrant was prepared, signed, and dated on January 4, 1978 (six days before the commission of the crime for which Johnson was on trial), and further questioning by the district attorney emphasized the discrepancy between the date of signing and the date of execution of the warrant. The defense moved for a mistrial but the court denied the motion and instead admonished the jury to disregard any reference to the warrant or the date of its issuance. Immediately after this admonition, the prosecutor himself referred to the warrant and the date of its execution (but not to the date of its issuance), the defense again moved for a mistrial, and the court denied that motion, observing that it had just directed the jury to ignore any reference to the warrant. Moments later yet another reference to the warrant, but not to its date, was made by the same witness and another motion for mistrial was made and denied by the judge, who announced that he would grant the motion if the warrant was referred to again.

Defendant’s motion for a mistrial was based on C.Cr.P. 770, which provides in pertinent part:

“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.”

The initial reference to the date of issuance of the search warrant was made by a police officer as witness for the state, and the Official Revision Comment to article 770 states that the provision does not apply to comments made by a witness. This court has indicated, however, that this provision should be applied to highly prejudicial, unresponsive testimony of experienced and knowledgeable police witnesses for the state. State v. Schwartz, 354 So.2d 1332 (La.1978); State v. Sutfield, 354 So.2d 1334 (La.1978); State v. Foss, 310 So.2d 573 (La. 1975). In State v. Harris, 383 So.2d 1 (La. 1980), we required a showing of a pattern of unresponsive answers or improper intent by the police officer or prosecutor, in order to apply article 770 to a police officer’s testimony; and a careful reading of the structuring of the testimony complained of here raises the strong possibility of improper intent. However, a more basic question is whether these references were so prejudicial to defendant that article 770’s drastic remedy of a mandatory mistrial should have been invoked or whether admonition was sufficient to avert prejudice. The references to the search warrant adverted to the commission of another crime only by virtue of the fact that the warrant was issued six days before the date of the homicide. But at this point in the trial, the date of the murder had not yet been put before the jury, and the officer’s testimony established only that there was a six day hiatus between the issuance of the warrant and its execution, not between its issuance and the murder. When the jurors finally became aware of the date of the murder, after two other witnesses had testified, it is doubtful whether they then realized that the search warrant must have been issued in connection with some other, earlier criminal offense. In State v. Martin, 377 So.2d 259 (La.1979), reversed on rehearing on other grounds, a mistrial was not required by the state’s allusion to execution of a search warrant in connection with a burglary investigation, as an incident to defendant’s arrest for forgery. In State v. Thorson, 302 So.2d 578 (La.1974), we found that an admonition was sufficient to cure a reference to a prior arrest warrant. Because defendant was not prejudiced by the trial court’s decision to admonish the jury rather than granting a mistrial, this assignment of error is without merit.

Assignment of Error No. 2

Immediately following the testimony concerning the search warrant and its execution, the state elicited the identification of a revolver and a knitted cap as items seized in the course of the search. No motion to suppress this evidence had been filed and no objection to the admissibility of this evidence was raised at this time or when these objects were later presented to other witnesses, but the defense did object when the gun and cap were offered into evidence at the close of the state’s case, on the ground that the seizure had been made without a warrant. Because the evidence had been seized under a search warrant, issued, probably, for another offense, the trial judge properly overruled the objection. The defense counsel then remarked that the gun and cap had been the subject of a motion to suppress, and the admissibility of the evidence had already been determined. This reference to a motion to suppress must have adverted to another case, for no such motion is reflected in the record before us.

There is no merit to this assignment.

For the reasons assigned, defendant’s conviction and sentence are affirmed.

      . “Q On January 10th, did you have the occasion to execute a search warrant at 2411 Thalia Street, apartment B?
      A I did.
      Q And to whom was that search warrant directed? Well, who lived at 2411 Thalia Street, apartment B?
      A Mr. Michael Johnson.

        BY MR. BOUDOUSQUE:
      Your Honor, again I would like to mark this document as State exhibit 11. EXAMINATION BY MR. BOUDOUSQUE:
      Q I’d ask you to look at State exhibit 11, and can you identify that object, and if so, how?
      A This is the search warrant I prepared and it was signed by the Honorable Judge Robert Collins and I also signed it and dated it on the date it was issued.

      Q Do you recall what time it was signed?
      A It was signed on January the 4th, 1978 at or about 3:30 in the evening.

      Q Do you recall when it was executed!

        A January 10th about 8:15 in the morning. BY MR. ZIBILICH:
      Your Honor, please, may we approach the bench?
      BY THE COURT:
      The Court would like to admonish the jury to disregard any reference to the warrant or date of the warrant issued. Strike it, strike it from your mind. Alright (sic) proceed.
      EXAMINATION BY MR. BOUDOUSQUE:
      Q Now, Officer Reed, is it not a fact that on January 10th, you did execute a warrant at 2411 Thalia Street, apartment B? BY MR. ZIBILICH:
      I object, if Your Honor please, for the same reason.
      BY THE COURT: I just told the jury to disregard any reference to a warrant on a specific date.
      BY MR. ZIBILICH:
      And I re-urge, for the record, my motion for a mistrial.
      BY THE COURT: Court denies it, ask counsel not to-
      BY MR. ZIBILICH:
      Note an assignment of error, please.
      EXAMINATION BY MR. BOUDOUSQUE:
      Q On January 10th-I am sorry, let me withdraw that, Your Honor. Did you proceed to 2411 Thalia Street on January 10th of this year?
      A I did.
      Q And when you arrived at that residence who was present at that residence?
      A Mr. Michael Johnson, defendant-BY MR. ZIBILICH:
      Could you speak a little louder please? BY THE WITNESS:
      Mr. Johnson, defendant before the bar, his mother Mrs. Eretta Beasely, his sister, Miss Carolyn Johnson, and two small kids.
      EXAMINATION BY MR. BOUDOUSQUE:
      Q Okay, now was any property subsequently taken from any individual at 2411 Thalia Street, apartment B?
      A Yes, sir, as a result of the warrant, yes-BY MR. ZIBILICH:
      I object, if Your Honor please, to the constant reference to the warrant and I again move for a mistrial.
      BY THE COURT:
      I’ll grant it if we have any reference to the warrant again. The court will admonish the witness and the-and the district attorney to make no reference to the-to a warrant.” (Emphasis added).

      . Admonition is provided for by C.Cr.P. 771, which states:
      “In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
      (1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
      (2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
      In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.”


author: DIXON, Chief Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Glyn A. WILSON.
    No. 67216.
    Supreme Court of Louisiana.
    Sept. 3, 1980.

      James C. Lawrence, Gerdes, Valteau & Cade, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Douglas Friederichsen, Asst. Dist. Attys., for plaintiff-respondent.
   DIXON, Chief Justice.

The question here is whether the police can stop an automobile, being properly driven on a public highway, solely because the automobile bears a Louisiana license plate and an out-of-state inspection sticker. As a result of such a stop, the defendant, Glyn Wilson, was charged with violating R.S. 14:95.1, which makes it a crime for a convicted felon to possess a firearm. The defendant moved to suppress the evidence obtained from the stop. After an eviden-tiary hearing the district court denied the defendant’s motion. We reverse and find that the stop of the automobile, based on neither probable cause nor reasonable suspicion, was an unreasonable seizure under the Fourth Amendment and Article 1, § 5 of the 1974 Louisiana Constitution.

On July 21, 1979 a state trooper observed the defendant traveling on U. S. 61 with a Louisiana license plate and an out-of-state inspection sticker on his automobile. For this reason, the trooper stopped the defendant and followed his normal practice of requesting the defendant’s driver’s license and vehicle registration papers. The trooper noticed that the defendant’s inspection sticker was a valid Mississippi inspection sticker, but he advised the defendant to go to his glove compartment and get his vehicle registration papers. When the defendant opened his glove compartment, the trooper saw a revolver in the glove compartment. The trooper checked the gun by radio and learned that the gun was not stolen and the defendant was not wanted. The trooper asked the defendant if the gun belonged to him; the defendant replied that it did. The gun was returned to the defendant, who was told that he could leave. When it was later determined that the defendant was a convicted felon, he was charged with illegal possession of the gun.

The sole issue before this court is whether or not the investigatory stop was constitutionally valid. The Fourth Amendment of the United States Constitution and Article 1, § 5 of the 1974 Louisiana Constitution prohibit unreasonable searches and seizures. The stop of an automobile and the detention of its occupants have been viewed as a “seizure” within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); United States v. Martinez—Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); U. S. v. Brigoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).

In Delaware v. Prouse, supra, the United States Supreme Court held that it is an unreasonable seizure under the Fourth Amendment to stop an automobile and detain the driver for the purpose of checking his driver’s license and vehicle registration papers, where there is neither probable cause nor reasonable suspicion to believe that a motorist is unlicensed or that an automobile is not registered, or that either the car or its occupants is subject to seizure for violation of the law. The court concluded that there must be at least an articulable and reasonable suspicion that the car is being driven contrary to the laws governing the operation of motor vehicles.

In this case the state trooper stopped the defendant only because he had a Louisiana license and an out-of-state inspection sticker on his automobile. It is not a crime under Louisiana law to operate a vehicle with a Louisiana license plate and a valid inspection sticker from another state. The trooper was aware of this law and testified to that effect at the suppression hearing: “. . . I advised him he could go, because all of his papers were in order for the vehicle, the car belonged to him, the driver’s license was his, and he had a valid inspection sticker, and we allow, in this State, a valid inspection sticker from another State until it expires; then he’s required to get a Louisiana inspection sticker.”

The trooper had no reason to believe that the defendant’s Mississippi inspection sticker had expired; he only knew that the inspection sticker on defendant’s automobile was from out-of-state. The fact that the defendant’s automobile bore an out-of-state inspection sticker did not provide the trooper with an articulable and reasonable suspicion that the defendant’s car was being driven contrary to the laws of this state.

Neither was there any other reason to stop the defendant. There was no evidence which led the trooper to believe that the defendant’s driver’s license had expired or that his registration papers were improper.

“An individual operating or travelling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation.” Delaware v. Prouse, 440 U.S. 648, 649, 99 S.Ct. 1391, 1393, 59 L.Ed.2d 660, 673. To allow law enforcement officers to stop a vehicle solely because the vehicle displays a Louisiana license plate and an out-of-state inspection sticker would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

We conclude that the stop of the defendant’s car violated the Fourth Amendment of the United States Constitution and Article 1, § 5 of the 1974 Louisiana Constitution. Evidence obtained as a result of an unlawful stop is constitutionality inadmissible against the accused. State v. Washington, 364 So.2d 958 (La.1978); State v. Wilson, 366 So.2d 1328 (La.1978); State v. Smith, 347 So.2d 1127 (La.1977).

The district court erred in overruling the defendant’s motion to suppress the evidence obtained from the stop. Accordingly, the judgment of the district court is reversed, and the motion to suppress is granted. The case is remanded for further proceedings not inconsistent with the views expressed herein.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

The stop in this case is clearly distinguishable from that in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). The Prouse case involved a purely random stop of a vehicle chosen by the officer for a license and registration check on a purely arbitrary basis. Since the officer had no reasonable suspicion that the vehicle was not properly registered or the driver not properly licensed, there was no legitimate basis to decide to stop that particular vehicle. Significantly, the court disapproved only of random stops of vehicles selected for stopping by use of unconstrained discretion without a rational basis.

In the present case the officer did not arbitrarily select defendant’s vehicle to stop for a registration check. Since a Mississippi inspection sticker is permitted on cars licensed in Louisiana only under limited circumstances, the officer had a reasonable suspicion that the car had an illegal inspection sticker. Therefore, this was not a situation, as in the Prouse case, where it was highly unlikely that the random stop would reveal a violation of safety laws; rather, there was at least a reasonable probability in this ease that the car did not have a proper inspection sticker. And since defendant was driving with an inspection sticker valid only because of an exception to Louisiana’s vehicle inspection law, the invasion of his privacy by a stop to check the sticker was far more minimal and far less frightening or annoying than the stop in the Prouse case of a driver and vehicle which gave no visible reason to excite the officer’s inquiry into a registration and license check.

The stop in this case was justified by reasonable suspicion. Once the vehicle was stopped, the officer could reasonably inquire further about registration and license without an undue intrusion, and inquiry about registration yielded the evidence of the crime in this case. Since only unreasonable seizures are constitutionally impermissible and since the stop or seizure in this case was not unreasonable, I would affirm the denial of the motion to suppress.

      . Procedural Order Number 413.3 provides the following:
      “Pursuant to the authority granted to the Director of Public Safety in R.S. 32:1304, Paragraph C, the Director herewith:
      1. Authorizes the acceptance in this State on any Louisiana registered vehicle a valid certificate of inspection and approval issued in the District of Columbia or in another state of the United States, provided such certificate was obtained while such vehicle was regularly assigned, garaged, or stationed outside the State of Louisiana or registered in another state when inspected by that state.”

      . There is no merit to the state’s argument that the stop can be justified under C.Cr.P. 215.1, which provides in part:
      “A. A law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or a misdemeanor and may demand of him his name, address and an explanation of his actions.”
      Under this article the validity of the investigatory stop depends on whether the officer has articulable knowledge of particular facts sufficient to warrant infringement upon the individual’s constitutional right to be let alone. State v. Neyrey, 383 So.2d 1222 (La. 1980); State v. Shy, 373 So.2d 145 (La.1979). In this case the trooper did not have articulable knowledge of particular facts sufficiently reasonable to suspect the defendant of any criminal activity.


text:
    STATE of Louisiana v. Johnny TELSEE, Jr.
    No. 66786.
    Supreme Court of Louisiana.
    Sept. 3, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Patrick G. Quinlan, Asst. Attys. Gen., for plaintiff-appellee.
    N. Graves Thomas, Shreveport, for defendant-appellant.
   CALOGERO, Justice.

Defendant was charged by grand jury indictment on February 24, 1977 with the crime of aggravated rape. He pled not guilty to the charge. In May, 1978, defendant’s motion for a mental examination was granted and the Court appointed a Sanity Commission to examine defendant. On June 26, 1978, after the submission of the Sanity’s Commission’s report the district court ruled that defendant lacked the mental capacity to assist in his defense and ordered that he be committed to the Forensic Unit of the East Louisiana State Hospital at Jackson, Louisiana for examination and treatment.

The trial court on November 20, 1979, after hearing the report of the second sanity commission composed of the same doctors who had examined defendant previously ruled that defendant was capable of standing trial. On October 15, 1979, defendant withdrew his former plea of hot guilty and pled guilty to forcible rape. The trial court accepted the plea and on December 10, 1979, the trial judge sentenced defendant to forty years at hard labor “at least half of which” was to be without benefit of parole, probation or suspension of sentence. Defendant on appeal contends that the trial court erred in imposing an illegal and excessive sentence.

On December 17, 1977, the rape victim (who shall be referred to hereafter by the pseudonym “Ms. Jones”) was driving home from her job at a hospital around midnight. The seventeen year old defendant drove behind Ms. Jones’ car alternately flicking his lights from dim to bright, causing Ms. Jones to pull her car onto the shoulder of the road where she stopped. Defendant parked his car behind Ms. Jones’ car and approached the driver’s side of the car stating that he was a “private cop.” When she asked to see some identification he showed her his driver's license in a flip-over ID case. He then opened the car door, jumped in and grabbed her.

The state contends that he began choking Ms. Jones and told her that he had a gun. Defendant concedes that the victim resisted, her resistance was overcome by force, and that she received numerous bruises and scratches on her neck and face and a cut on her leg. After overcoming her resistance he drove to a remote area of Caddo Parish where he raped her. Defendant returned to the spot where he abducted her, left Ms. Jones at her car, and drove home to his parents’ house.

According to the state defendant threatened to kill her if she resisted and when he left Ms. Jones back at her car he told her that he knew where she worked and would kill her if she told anyone about the rape. The state also contends that defendant took all the victim’s money and a gold watch which was found in his coat pocket when he was arrested. Defendant contends that shortly before the rape he smoked a marijuana cigarette laced with PCP, commonly known as “angel dust.”

In a single assignment of error defendant in essence makes four arguments as to why his sentence should not be affirmed:

(1) The trial judge’s representations to defendant that he would receive an intermediate length sentence caused defendant not to seek a pre-sentence evidentiary hearing at which defendant would have rebutted or explained any incorrect information upon which the district court may have relied.

(2) The trial court failed to particularize his reasons for sentencing in violation of C.Cr.P. art. 894.1.

(3) The sentence imposed was excessive in violation of Article I, Section 20 of the Louisiana Constitution.

(4) The portion of his sentence in which he was given twenty years without possibility of parole, probation, or suspension of sentence is illegal as R.S. 14:42.1 does not allow the trial court to deny a defendant probation, parole or suspension of sentence for more than two years of whatever sentence it imposes.

Finding merit in defendant’s first argument we need not consider the other three.

In brief defendant states that after he was denied permission to inspect the pre-sentence investigation report for inaccuracies, defense counsel informed the judge that in light of the sensitive nature of the offense and the seriousness of the charge, defendant would move for a pre-sentence evidentiary hearing. At in-chambers conference the trial judge read to defense counsel the investigating officer’s and defendant’s version of the crime. The judge informed defendant that he would not in sentencing defendant consider any information other than that what he had just read. Despite having no serious dispute with the part of the investigating officer’s report that the judge read to him defense counsel asserts that he told the judge he was apprehensive about the penalty and still intended to request a pre-sentence evidentiary hearing to establish a record of defendant’s background and attitudes for appellate review. The trial court informed counsel that such a hearing was not necessary because although he did not intend to give defendant a light sentence he was not going to “hang” him. At a subsequent meeting between the trial judge, defense counsel, and defendant’s minister defendant asserts that the judge reaffirmed that he would consider only the pre-sentencing report in sentencing defendant and told both defense counsel and defendant’s minister that defendant would receive an intermediate length sentence.

At sentencing in December, 1980, defendant made a brief statement in which he expressed remorse for his crime and his counsel asked the court to consider mitigating factors, stressing that defendant was only seventeen, had no previous convictions, and that defendant had a serious drug problem at the time he committed the rape. Immediately after the trial judge finished his reasons for sentencing defense counsel objected that he had been misled by the court’s assurance that he was not going to “hang” defendant. After the judge conceded that he had used that expression defense counsel repeated his complaint that he had been misled into not asking for a pre-sen-tence hearing. When he objected to the length of the sentence on the grounds that no weapon had been used and the state could not have proved aggravated rape the trial judge stated that he was “getting into evidence.” Defense counsel replied that he mentioned the reduction in charge only because the judge had mentioned it in sentencing and again contended that the state could not have convicted defendant of aggravated rape. The trial judge did not contest defense counsel’s assertions about sentencing and later when asked by defense counsel, told him that he had discussed sentencing with the victim. Defense counsel then stated that if he had known that, he would not have foregone a sentencing hearing and would have called Ms. Jones as a witness.

Pre-sentence hearings are not required by our Code of Criminal Procedure, but this Court has held that the due process guarantee of Article 1, Section 2 of the Louisiana Constitution requires that a defendant be given an opportunity to rebut false or invalid data of a substantial nature, to which the sentencing judge is exposed, where there is a reasonable probability that it may have contributed to the harshness of the sentence. State v. Richardson, 377 So.2d 1029 (La.1979); State v. Bosworth, 360 So.2d 173 (La.1978); State v. Underwood, 353 So.2d 1013 (La.1977). Due process does not necessarily require a full scale evidentiary hearing, State v. Bosworth, 360 So.2d at 176, but due process and fairness values require that a defendant be afforded an opportunity to deny or explain prejudicial information otherwise secret to the judge himself. State v. Richardson, supra; State v. Bosworth, supra.

Whether the prejudicial information is contained in a pre-sentence investigation report or is communicated to the sentencing judge directly, upon request and appropriate allegation (as here) defendant must be given access to derogatory information unless the judge determines after an in camera examination that the material should be withheld because it is not relevant or was obviously intended to be confidential. State v. Segers, 357 So.2d 1 (La. 1978); State v. Bosworth, supra; State v. Owens, 377 So.2d 316 (La.1979). Even when the court determines that information was given in confidence, it should convey the substance of the information to defendant, defense counsel, or other person acting on his behalf after eliminating the name and identifying information from the report. State v. Richardson, supra. American Bar Association Standards Relating to the Administration of Criminal Justice, Standards Relating to Sentencing Standards and Alternatives, Standard 4.4(a) (1968).

Here defendant was undoubtedly adversely affected by the conversation the trial judge had with Ms. Jones, but we cannot determine from the record whether Ms. Jones’ communication to the sentencing judge was in confidence or whether the information given him was inaccurate or misleading in a material way. However, even assuming the communication was entirely confidential and defendant could not contest its substantial accuracy, defendant here suffered more than minor prejudice in deciding not to request a pre-sentence hearing in reliance upon the sentencing judge’s representations. An opportunity to present information at a pre-sentence hearing is of particular importance when the defendant pleads guilty because it may be his only chance to effectively present his version of the offense and his version of mitigating factors.

In addition to insuring that the information the trial judge relies upon in sentencing is accurate, an in-court proceeding prior to sentencing provides defendant an opportunity to present the court with information which he believes is relevant to the sentencing process and may aid the judge in the exercise of his sentencing discretion. It contributes to rehabilitation and promotes respect for the judicial process by facilitating the imposition of sentence in a manner which inclines the defendant’s family and friends and perhaps defendant himself to believe that while the sentence may not be to their liking, defendant was given an opportunity to be heard before being sentenced and he was not singled out for sentencing in an arbitrary fashion. See ABA Standards of Criminal Justice Relating to Sentencing Alternatives and Procedures, Comment to Standard 5.4 (1968); Hall, George, and Force, Criminal Law and Procedure 1132 (1976).

In the case at bar a sentence of forty years with at least half to be served without benefit of probation, parole, or suspension of sentence is so close to the maximum sentence of forty years without benefit of probation, parole, or suspension of sentence that it appears on its face to be contrary to the trial judge’s assertion that he wouldn’t “hang” defendant nor was it intermediate in length. Though it was perfectly proper for the trial judge to speak to the victim prior to imposing sentence, the trial judge’s assurances that he would only consider certain material in the pre-sentence investigative report in sentencing defendant and that defendant would receive less than a maximum sentence, minimally induced defendant to forego a request for a sentencing hearing.

While our jurisprudence doesn’t explicitly require a pre-sentence hearing simply upon the request of the defendant, we have recognized pre-sentence hearings as an outgrowth of minimal due process and fairness requirements. In a case of this nature where a pleading defendant makes no complaint as to the voluntariness of his guilty plea and his primary complaint about sentencing is that he was induced to forego a request for a pre-sentence hearing by an assurance about his sentence that was not fulfilled, we are prompted to vacate the sentence and remand to the trial court for a pre-sentence hearing and resentencing if only out of a concern for the appearance of fairness and to encourage respect for the judicial process.

Decree

For the foregoing reasons defendant’s sentence is vacated and the case is remanded to the trial court for a pre-sentence hearing and resentencing.

      . One court appointed psychiatrist concluded that defendant was possibly experiencing periods of psychosis which would impair his ability to know right from wrong. He offered no opinion as to defendant’s sanity at the time of the offense, but believed that defendant was “borderline insane” when examined. The second psychiatrist on the panel found indications that defendant was suffering from a mental illness of such severity that it interfered with his ability to know right from wrong. This psychiatrist could not state an opinion as to defendant’s mental condition at the time of the offense because of defendant’s state of mental confusion at the time of the examination.

      . The trial judge’s imposition of a sentence of forty years “at least half of which” shall be served without benefit of parole, probation, or suspension of sentence may be illegal as an indeterminate sentence in violation of C.Cr.P. 879. However, since we vacate the sentence on other grounds we need not reach the merits of this issue.

      . We have indicated in State v. Trahan, 367 So.2d 752 (La.1979), that such a hearing is not a full scale trial with the state being required to prove its contentions beyond a reasonable doubt. The state is merely required to show a factual basis for its contentions, but the defendant must be given the opportunity to contradict or explain this showing. See 360 So.2d 176, Appendix to State v. Bosworth.

      . The ABA Approved Draft of Standards Relating to Sentencing Alternatives and Procedures, Standard 5.4(c) (1968) rejects the idea that the traditional practice of asking a defendant if he wishes to make a statement on his own behalf at time of sentencing is a sufficient method of permitting the defendant to participate in the sentencing process.