source: Caselaw Access Project

author:
LEMMON, Justice. DENNIS, Justice, MARCUS, Justice.
      DIXON, Chief Justice

license: Public Domain

text:
    Shellie J. SEALS v. Eugene MORRIS, et al. Sylvester L. HARRY v. Eugene MORRIS, et al.
    No. 80-C-2291.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
    On Rehearing March 1, 1982.

      Herbert R. Alexander, Jim W. Richardson, Jr., Bogalusa, for plaintiff-applicant.
    John J. Hainkel, Jr., of Porteous, Toleda-no, Hainkel & Johnson, New Orleans, Edward A. Griffis, of Talley, Anthony, Huges & Knight, Bogalusa, for defendants-respondents.
   LEMMON, Justice.

This is a tort suit in which plaintiff seeks to recover the damages he sustained in an intersectional collision. The trial court held defendant liable for entering the intersection without stopping for the stop sign facing him. The court of appeal reversed, concluding the accident was inevitable, in that defendant lost control of his truck when he was frightened by the discovery of a snake crawling on his shoulder. 387 So.2d 1220. We granted certiorari to review that judgment. 393 So.2d 745.

After fishing in a wooded area, defendant was driving on a dirt road at a reasonable speed and was approaching the intersection with a favored roadway, when he noticed a green snake on his shoulder. In the panic following this sudden and unexpected occurrence he lost control of his truck and proceeded past a stop sign into the intersection, where he collided with plaintiff’s car.

The principal defense at trial and on appeal was that the accident was unavoidable, in that it was not caused by any negligence or unreasonable conduct on defendant’s part.

Delictual responsibility in Louisiana is based on fault. C.C. Art. 2315. Fault is a more comprehensive term than negligence, and fault encompasses many acts which are not morally wrong, but are merely violative of laws or of legal duties. Langlois v. Allied Chemicals, 258 La. 1067, 249 So.2d 133 (1971).

Defendant had a duty to keep his vehicle under proper control and to refrain from entering the intersection until it was safe to do so. Plaintiff proved that his damages were caused solely because defendant did not maintain proper control and did not yield the right-of-way. Plaintiff thus established his own freedom from fault and a prima facie case of fault on defendant’s part.

Faced with this proof that he breached his duty involving the right-of-way and injured a blameless approaching motorist, defendant can only escape responsibility by exculpating himself from any fault whatsoever. Simon v. Ford Motor Co., 282 So.2d 126 (La.1973). To do so plaintiff must prove that the damages to the fault-free motorist were caused by the fault of a third person or by some external circumstance sufficient to discharge him from responsibility. Since there is no contention of fault chargeable to a third person, the critical issue is whether the external circumstance urged by defendant was sufficient to discharge him from responsibility to the innocent tort victim who was injured when defendant breached his duty.

Breaches of delictual or contractual duties may be excused when the breaches are caused by an irresistible force or a fortuitous event, each of which is defined in the Civil Code. There is no codal authority for excusing a breach of duty for a lesser external circumstance.

Defendant argues, however, that his breach of duty should be excused because he acted reasonably. While this is the standard for judging negligence, the damages in this case resulted from defendant’s non-negligent fault. To excuse himself from responsibility for this fault defendant must show something more than that he acted reasonably. He must show that the damages resulted from some external circumstance sufficient to discharge him from responsibility for his fault.

The presence of the snake was perhaps momentarily frightening and unforeseen, but is not such an external circumstance that defendant should be discharged from responsibility to an innocent tort victim for damages caused by his fault.

The trial court correctly rendered judgment against defendant Eugene Morris and his insurer, Southeastern Fidelity Insurance Company. By reversing that judgment, the court of appeal did not reach the insurance coverage issue urged by defendant Fidelity and Guaranty Underwriters or the quantum issue raised by plaintiff. The case must be remanded for adjudication of those issues.

Accordingly, the judgment of the court of appeal is reversed, and the judgment of the district court is reinstated. The matter is remanded to the court of appeal to adjudicate the remaining issues not reached in the original decision on appeal. Costs are assessed to Morris and to any other parties ultimately cast in judgment.

DENNIS, J., concurs with reasons.

WATSON, J., concurs in the result.

CALOGERO, J., dissents.

DENNIS, Justice,

concurring.

I respectfully concur.

The trial judge found that the defendant negligently caused the accident and was legally responsible for the plaintiffs’ injuries. In my opinion the trial judge’s findings of fact were not clearly wrong or manifestly erroneous.

ON REHEARING

MARCUS, Justice.

We granted a rehearing to reconsider the basis on which recovery, if any, should be permitted. A review of the facts is necessary to make this determination.

On the morning of April 24, 1976, Shellie Seals was operating his 1972 Ford pickup truck in a northerly direction on Old River Road about a mile and a half north of Jones Creek. Sylvester Harry was a passenger in the vehicle. Old River Road is a blacktop, two-lane road with two-way traffic. It was light and clear at the time. Seals was driving at about 40 miles per hour when a 1970 Chevrolet pulpwood truck driven by Eugene Morris entered the roadway from “a little old wooded trail like a pulpwood road” and hit into the side of his vehicle. Morris had been fishing in the river at a place called Beaver Dam prior to the accident. He described the road on which he was traveling as “a little old dirt road” and stated that he was driving at about 8 or 10 miles per hour. He further testified that he had planned to stop at the blacktop road but about 8 or 10 feet before he reached the intersection “a little green snake” crawled across his shoulder and caused him to lose control of his truck which “just went on out in the road” and collided with the Seals vehicle. Morris was on his way home at the time of the accident. While fishing, he had parked his truck under some bushes and trees with the windows open. He stated that he was a “pulpwooder” most of his life and was familiar with green snakes. The “green snake” in question was never recovered or observed by anyone other than Morris.

Seals and Harry instituted separate actions against Morris and his insurers for personal injuries sustained by them as a result of the accident. The suits were consolidated for trial. The principal defense at trial was that the accident was unavoidable in that it was not caused by any negligence or unreasonable conduct on the part of Morris. The trial judge, finding negligence on the part of Morris, rejected the defense of “inevitable accident” and rendered judgment in favor of plaintiffs. The court of appeal, finding “no actionable negligence” on the part of Morris and applying the doctrine of “unavoidable or inevitable accident” reversed the judgment of the district court and dismissed the consolidated suits at plaintiffs’ cost. We granted certiorari to review the correctness of that judgment. On original hearing, finding that the damages resulted from Morris’ “non-negligent fault” and that there were no external circumstances sufficient to discharge him from responsibility for his fault, we reversed the judgment of the court of appeal, reinstated the judgment of the district court, and remanded the case to the court of appeal to consider the issues of amount of damages and coverage not reached in its original decision. We granted a rehearing to reconsider the issue of liability.

La.Civ.Code art. 2315 provides in pertinent part:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

La.Civ.Code art. 2316 further directs:

Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.

Under these articles, the elements of a cause of action are fault, causation and damage. The existence of a legal duty coupled with a breach of that duty are prerequisites to any determination of fault. Whether a legal duty is owed by one party to another depends on the facts and circumstances of the case and the relationship of the parties. In all cases, duty can be stated generally as the obligation to conform to the standard of conduct of a reasonable man under like circumstances. Roberts v. State, Through Louisiana Health and Human Resources Administration, 404 So.2d 1221 (La.1981); Straley v. Caiongne Drayage & Storage, Inc., 346 So.2d 171 (La.1977). A breach of a legal duty that causes damage to another makes the offender liable under the above articles.

As a general rule, the doctrine of “unavoidable or inevitable accident” relieves a person of liability. The person invoking the protection of the doctrine, however, must also show that he himself was in no way to blame for the happening. Sharp v. Kahn, 143 So. 514 (La.App. 1st Cir. 1932). The doctrine of unavoidable or inevitable accident can be stated as follows:

As a corollary of the rule for determining legal responsibility for negligence, if a motorist or other traveler has exercised ordinary care as required by the common law (or the highest degree of care as may be required), and has nevertheless been the occasion of inflicting injury on another, the accident is said to be inevitable, for which no liability attaches. Unavoidable accident is not an affirmative defense but merely negatives negligence.
The mere fact that as to a motorist a collision might have been inevitable or unavoidable at the time of its occurrence will not entitle that motorist to the protection of the doctrine of unavoidable accident if the situation thus brought about was the result of the motorist’s own negligence.

2 Blashfield, Automobile Law and Practice § 101.13 (rev. 3d ed. 1979). See also 7A Am.Jur.2d, Automobiles and Highway Traffic § 397; 60A C.J.S. Motor Vehicles § 256.

In the instant case, we do not consider that Morris’ collision with the Seals truck was an unavoidable or inevitable accident. Morris had worked in the woods most of his life and was familiar with green snakes. Moreover, he knew that snakes were found in bushes and trees and that they were relatively harmless. On the morning of the accident, he had parked his truck under bushes and trees with the windows open while he was fishing. In our view, Morris was negligent in creating the risk of the snake being in the truck. In addition, we do not consider that Morris reacted as a reasonable man under like circumstances. When he first observed the green snake on his shoulder, he was traveling at about 8 to 10 miles per hour on a “little dirt road” and was approaching a favored blacktop road. He was planning to stop at the intersection. Given his knowledge of the harmless nature of green snakes and his slow rate of speed, we consider that Morris was negligent in failing to maintain proper control of his vehicle at least to the extent of not entering a roadway on which the vehicles had a right of way. Hence, we consider that, under the facts of this case, Morris breached his legal duty of reasonable care and was negligent and at fault within the meaning of La.Civ.Code arts. 2315 and 2316. Inasmuch as the negligence of Morris contributed to the accident and resulting damages, he cannot be relieved of liability by invoking the doctrine of unavoidable or inevitable accident. The trial judge found the negligence of Morris to be the cause of the accident and held him liable for damages. Under the circumstances, we cannot say the trial judge was clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Our finding of negligence and liability under La.Civ.Code arts. 2315 and 2316 makes it unnecessary for us to consider the applicability ' of La.Civ.Code art. 2317. Since the court of appeal found no liability, it did not reach the issues of amount of damages and coverage. We consider it more appropriate to remand the case to that court for its review of those issues.

DECREE

For the reasons assigned, our original decree reversing the judgment of the court of appeal and reinstating the judgment of the district court and remanding the case to the court of appeal to consider the issues of amount of damages and coverage not reached in its original opinion is reinstated.

LEMMON, J., concurs.

DIXON, C. J., concurs with reasons.

DIXON, Chief Justice

(concurring).

I respectfully concur, not agreeing with the discussion of “unavoidable or inevitable accident” and the reliance on Blashfield, Am.Jur. and C.J.S. — non-authoritative secondary sources. Except for an unfortunate clause (“the damages in this case resulted from defendant’s non-negligent fault”) the analysis in the original opinion of this court (in my view) was correct. Defendant negligently pulled out of the woods into the opposing traffic, and his negligence was not excused by the presence of a harmless snake.

      . Consolidated under the same docket number in this court is a suit by Sylvester Harry, plaintiffs guest passenger. For the purpose of this opinion “plaintiff’ refers to Shellie Seals and “defendant” refers to Eugene Morris and/or his insurers.

      . We do not decide the case on a strict liability basis, as we did in Loescher v. Parr, 324 So.2d 441 (La.1975), in which liability was imposed under C.C. Art. 2317 on the custodian of a defective thing, without proof of the custodian’s knowledge of the defect or of his failure to properly maintain the thing. In the case of Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978), liability without fault was imposed under C.C. Art. 2317 on the owner of an automobile when the accident was caused by the car’s defective brakes. In both cases, once the plaintiff proved a defect in the thing under the owner’s custody and damages resulting because of the defect in the thing, proof of knowledge of the defective condition of the thing in custody was not required.
      In the present case there was no proof that damages were caused by a defect in the thing in defendant’s custody (unless a truck with a snake in the cab can be viewed as defective). Nevertheless, even without reliance on strict liability theories, plaintiffs proof in this case shifted to defendant the burden of proceeding with evidence to exculpate himself from responsibility.

      . An irresistible force results from a power which cannot be resisted. C.C. Art. 3556(14). The entry and presence of the snake in defendant’s truck can hardly be classified as the result of irresistible power.

      . Defendant’s parking with open windows near bushes and under trees in a wooded area more probably than not permitted the snake to enter the cab. While this parking was not unreasonable, the entry of the snake did not result from an irresistible force.

      . 387 So.2d 1220 (La.App. 1st Cir. 1980).

      . 393 So.2d 745 (La. 1980).

      . In Sharp, plaintiff was injured when an automobile driven by defendant ran into the horse plaintiff was riding. Defendant raised the defense of inevitable accident alleging that she had been stung by a bee causing her to lose control of the car. The court held that defendant was negligent in failing to maintain a proper lookout and, therefore, could not evade liability by invoking the doctrine of inevitable accident.


author: DIXON, Chief Justice . BAGERT, Justice. Ad Hoc, CALOGERO, Justice,

text:
    STATE of Louisiana v. Alton A. “Buggs” BELGARD.
    No. 81-KA-1117.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    Rehearing Denied March 19, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., R. Greg Fowler, Asst. Dist. Atty., for plaintiff-appellee.
    Wellborn Jack, Jr. of Jack, Jack, Cary & Cary, Shreveport, for defendant-appellant.
   DIXON, Chief Justice .

Defendant, Alton A. “Buggs” Belgard, appeals his conviction of attempted second degree murder. He was sentenced to twelve years at hard labor. Defendant’s conviction and sentence are affirmed.

Alton Belgard visited the trailer of his legally separated wife, Judy Belgard, on August 30, 1980 in Alexandria, Louisiana. Stephen Saucier, the victim, and his two children were present, as well as the Bel-gards’ daughter, Angie. Defendant entered the trailer with the Belgards’ thirteen-year-old son, Robert, at 8:30 p. m. Saucier testified he introduced himself to defendant and extended his hand to shake hands when Belgard swung at his head with a pair of cowboy boots. Saucier blocked the boots and pushed defendant against the wall. He placed his hand on Belgard’s back and told him, “Hey, let’s talk about this.” Saucier then heard a tremendous concussion and felt his knees go out from under him as four or five shots were fired.

Judy Belgard had been in the kitchen. She went to the corner of the room to see what was happening. Stephen Saucier was lying on the floor, and the defendant was standing. Defendant yelled for her to come to him, followed her into the kitchen and hit her head with the gun. He grabbed her arm and jerked her back into the room where Saucier was lying. The defendant then began yelling at Judy Belgard. He told her the incident was all her fault because of her relationship with Saucier. Stephen Saucier sustained multiple gunshot wounds, and Judy Belgard underwent surgery for three fractured skull bones. Alton Belgard turned himself in to the police early the next morning.

Assignments of Error Nos. 1 and 5

Defendant contends the trial court erred in denying pretrial disclosure of oral incul-patory statements made by him. The court’s denial of defendant’s motion for mistrial, based on the prosecutor’s reference in opening statement to other crimes allegedly committed by the defendant, is also assigned as error. Defense counsel does not argue these assignments in brief, but incorporates the argument made at the motion for mistrial for our consideration of them.

In his opening statement the prosecutor remarked:

“The State will prove from other witnesses, Nancy Corso and Frank Corso, Charlotte Sills, Travis Worrell — these are the kinfolk and brothers and sisters of the victim — I mean of Judy Sills Belgard, who came to the scene immediately upon receiving the telephone call ‘Help! come now, Bugs is here,’ came to the scene and saw Bugs leaving from the house on August 30, 1980. Saw him walking out of the house with a sheepish grin or smile on his face. You’ll hear the testimony of Nancy Corso that she reached and picked up a brick to try and stop him and he pointed a pistol to stop him — to stop her from doing that.”

. Defense counsel objected to the prosecutor’s statement that defendant had pointed a pistol at Nancy Corso. The objection was based on the state’s reference to the unin-dicted crime of aggravated assault allegedly committed by the defendant without providing notice under State v. Prieur, 277 So.2d 126 (La.1973).

The trial court correctly overruled this objection and denied the motion for mistrial. The general rule is that the prosecution may not introduce evidence of other criminal acts of the accused. An exception is made if the evidence is substantially relevant to some purpose other than to show the accused is a bad person, therefore more likely to have committed the crime. State v. Haarala, 398 So.2d 1093 (La.1981); State v. Lee, 381 So.2d 792 (La.1980); State v. Monroe, 364 So.2d 570 (La.1978). The prohibition does not bar admission of criminal acts that form part of the res gestae. R.S. 15:447; R.S. 15:448. State v. Prieur, supra, does not require the state to provide notice to the defendant of crimes that fall within the res gestae exception.

Nancy Corso arrived at Judy Bel-gard’s trailer shortly after the shooting incident. The defendant was present, and Saucier was lying on the floor. Corso’s attempt to stop defendant from leaving resulted in Alton Belgard aiming a gun at her to avoid remaining at the residence. These facts clearly fall within the res gestae exception to the notice requirement of State v. Prieur, supra. The motion for mistrial under C.Cr.P. 770 was properly denied.

The record indicates defense counsel neither objected to nor mentioned the nondisclosure of oral inculpatory statements made by defendant during his argument on the motion for mistrial. The sole basis for the objection was the state’s reference to the defendant having pointed a gun at Nancy Corso. This court has consistently held issues and objections not raised at trial will not be considered on appeal unless an error is alleged that is discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. C.Cr.P. 841 and 920. See State v. Duncan, 390 So.2d 859 (La.1980); State v. Madison, 345 So.2d 485 (La.1977). Thus, we do not consider defendant’s assignment of error based on nondisclosure of oral inculpatory statements.

Assignments of Error Nos. 2 and 3

By these assignments defendant asserts the trial court erred in denying his motion for mistrial and motion for new trial based on the prosecutor’s erroneous statements to the jury venire during voir dire examination. The defendant had entered a plea of not guilty and not guilty by reason of insanity. The prosecutor questioned prospective juror Hazel Roberts during voir dire:

“Mrs. Roberts, do you understand that by entering a plea of Not Guilty and Not Guilty by reasons of insanity, the defendant doesn’t say he’s innocent of the charge. He just says I want the State to come forward and prove my guilt?”

Defense counsel objected to the question. The trial court sustained the objection and admonished the jury to disregard the comment of the prosecutor. The court informed the jury the prosecutor’s comment was not a correct statement of the law. Defense counsel then argued, outside the presence of the jury, that the prosecutor’s statement tainted the entire jury venire, and he requested a mistrial. The trial court denied the motion for mistrial after extensive argument by the prosecutor and defense counsel. The judge informed the jury venire of the applicable law. Defendant contends the statement by the prosecutor was an expression of his personal belief that is prohibited by State v. Kaufman, 304 So.2d 300 (La.1974), cert. den. 429 U.S. 981, 97 S.Ct. 495, 50 L.Ed.2d 591 (1976).

State v. Kaufman, supra, held the prosecutor’s expression of personal opinion of the defendant’s guilt in his argument to the jury was impermissible and reversible error. The prosecutor’s remarks in this case, however, were not an expression of his personal opinion about the defendant’s guilt. The prosecutor made an improper and incorrect statement of the law that was corrected by the trial court’s admonition to the jury.

The trial judge is given discretion to determine whether a fair trial is impossible, or an admonition is adequate to assure a fair trial when prejudicial conduct does not fit within the mandatory mistrial provisions of C.Cr.P. 770. See State v. McMahon, 391 So.2d 1120 (La.1980); State v. Domangue, 350 So.2d 599 (La.1977). The trial judge correctly determined the admonition was sufficient in this case. The harsh remedy of mistrial is not justified when an admonition will preserve the defendant’s rights. State v. McMahon, supra; State v. Wesley, 347 So.2d 217 (La.1977).

The trial judge thoroughly informed the jury venire about the law applicable to this case. He clearly advised them the prosecutor’s statement was incorrect. During his charge to the jury, the trial judge instructed the jurors that there was a presumption of innocence, and the state had a duty to prove guilt beyond a reasonable doubt. Under these circumstances, the prosecutor’s remarks did not make it impossible for defendant to receive a fair trial, and the assignment lacks merit.

Immediately after the trial judge admonished the jury to disregard the above statement, the prosecutor asked the prospective juror the following question:

“Mrs. Roberts, do you also understand that the law presumes that a defendant intends the natural and probable consequences of his acts?”

Defense counsel objected to this question, and moved for a mistrial. The trial judge denied the motion for mistrial following argument by counsel. The jury was told to disregard the prosecutor’s comment because it was an incorrect statement of the law. The judge further advised them to only follow the law as given by the court.

Defense counsel argues that the statement was prejudicial and unconstitutional in the light of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) and State v. Heads, 385 So.2d 230 (La.1980). He asserts the combination of the prosecutor’s two erroneous remarks was too prejudicial to the defense of insanity to warrant merely an admonition by the trial judge.

Now, I want to reemphasize you are to disregard the statement made by the prosecutor. If you had to vote right now, you would have to say, Not Guilty, because the law presumes the defendant innocent and it is up to the State to establish his guilt by a — beyond a reasonable doubt imposed upon the State. All right. Does everyone understand? You twelve in the box, do you understand?”

In Sandstrom v. Montana, supra, 442 U.S. at 513, 99 S.Ct. at 2454, 61 L.Ed.2d at 44, the United States Supreme Court found an instruction, “the law presumes that a person intends the ordinary consequences of his voluntary acts,” suggestive of serious constitutional problems. The court reasoned the presumption could have the effect in a deliberate homicide prosecution of shifting the burden to defendant to show he lacked the requisite mental state for the crime. Such use of the presumption by the jury would alleviate the state’s burden of proving every fact necessary to constitute the crime charged beyond a reasonable doubt.

In State v. Gutter, 393 So.2d 700 (La.1981), however, this court distinguished the Sandstrom decision. The presumption appeared in the prosecutor’s argument to the jury instead of the trial court’s charge. The trial court admonished the jury to disregard the remarks. Thus, there was little reason to believe that a reasonable juror would credit the prosecution’s argument so as to shift the burden of persuasion to the accused.

The prosecutor’s remark in this case was made during voir dire examination. The prospective jurors were admonished to disregard the remark immediately after defense counsel’s objection. Moreover, the trial judge charged the jury extensively as to the presumption of innocence and the necessity that defendant’s guilt be proved beyond a reasonable doubt. Under the circumstances it appears that the trial court’s admonition was sufficient to protect the accused’s right to a fair trial. This assignment lacks merit.

Assignment of Error No. 6

The trial court refused to give seven of defendant’s five special charges to the jury. Error is assigned to the denial of the seven charges, but defendant only argues on appeal the refusal to give Instructions 12, 14 and 15.

C.Cr.P. 802 requires the judge to charge the jury as to the law applicable to the case. State v. Clement, 368 So.2d 1037 (La.1979); State v. Marse, 365 So.2d 1319 (La.1978). Special charges are governed by C.Cr.P. 807. It provides, in part: “A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent.”

Defendant’s requested charge 12 dealt with the aggressor doctrine. He admits the trial judge’s charge was a correct statement of the law, but argues his special instruction would have informed the jury of the “excessive force exception” to the aggressor doctrine. The trial judge’s denial of the special charges, defendant asserts, undermined his defense of justification.

Testimony shows defendant committed the first act of aggression by swinging at the victim with a pair of cowboy boots. The victim held defendant against the wall in an effort to reason with him. No excessive force was used by Saucier to justify defendant’s shooting of him. No evidence was adduced to show defendant believed he was in imminent danger of losing his life or receiving great bodily harm. Proposed Instruction 12 was not pertinent to the case because it was not supported by any evidence at trial. The court, therefore, was not required to give it under C.Cr.P. 807.

Defendant argues the trial judge erred for refusing to give special Instructions 14 and 15 to the jury. These charges dealt with negation of specific intent by evidence of a mental defect or disorder short of legal insanity. The trial judge instructed the jurors on this issue as follows:

“Insanity at the time of the commission of a crime exempts the offender from criminal responsibility. If the circumstances indicate that because of a disease or defect the defendant was incapable of distinguishing between right and wrong with reference to the conduct in question, the defendant must be found Not Guilty by Reason of Insanity.”

The trial court properly denied defendant’s proposed instruction, and correctly charged the jury. Evidence of mental defect or disorder exempts a defendant from criminal responsibility only when it has been established the defendant was incapable of distinguishing between right and wrong with respect to the conduct in question. R.S. 14:14; State v. Murray, 375 So.2d 80 (La.1979); State v. Lecompte, 371 So.2d 239 (La.1979); State v. Andrews, 369 So.2d 1049 (La.1979); State v. Weber, 364 So.2d 952 (La.1978). The requested charge was incorrect under Louisiana law, and there is no merit in this assignment.

Assignment of Error No. 7

Defendant contends the trial court erred in accepting a nonunanimous jury verdict. The verdict was eleven to one in favor of conviction. In Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972) and Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), the United States Supreme Court upheld the validity of nonunanimous jury verdicts for twelve person juries. This court has consistently held C.Cr.P. 782 does not violate the Sixth or Fourteenth Amendments to the United States Constitution. See State v. Green, 390 So.2d 1253 (La.1980); State v. Hodges, 349 So.2d 250 (La.1977), cert. den. 434 U.S. 1074, 98 S.Ct. 1262, 55 L.Ed.2d 779 (1978); State v. Morgan, 315 So.2d 632 (La.1975). The assignment is without merit.

Assignment of Error No. 8

Defendant was sentenced to twelve years at hard labor. He submits the trial court erred in imposing an excessive sentence. The maximum sentence for a violation of R.S. 14:27 and 14:30.1 is imprisonment at hard labor for not more than fifty years.

Defendant’s sentence falls within the lower range of sentences that he could have received. At the sentencing hearing the trial judge noted defendant had been convicted of a felony previously, and was involved in a burglary after that conviction. The present conviction is for a violent crime, and the defendant committed a battery on his wife in connection with this case. The record also indicates defendant had made numerous threats to Judy Bel-gard’s life. Although the trial judge did not recite the C.Cr.P. 894.1 considerations into the record, it is clear, he used those factors in determining defendant’s sentence. In State v. Russell, 397 So.2d 1319 (La.1981), this court held that a remand was not required, even though the trial judge had not complied with 894.1 in imposing sentence, when the sentence imposed was neither severe nor grossly out of proportion to the crime. See State v. Jones, 381 So.2d 416 (La.1980). The trial judge did not err by giving defendant a sentence of twelve years at hard labor.

Supplemental Assignment of Error

Defendant assigns as error the trial court’s jury instruction on the definition of attempted second degree murder. However, defendant did not object to this instruction at trial, and it is not reviewable on appeal. See C.Cr.P. 841 and 920; State v. Duncan, supra; State v. Madison, supra.

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

BAGERT, J. ad hoc, dissents and assigns reasons.

BAGERT, Justice. Ad Hoc,

dissenting.

Alton A. “Bugs” Belgard was charged with the attempted second degree murder of one Steve Saucier. The facts of the case are as follows:

On August 30, 1980, Alton Belgard visited the trailer of his legally separated wife, Judy. He discovered a male visitor also present, the victim,- Steve Saucier. Mr. Saucier rose when Belgard entered the trailer and introduced himself. Belgard pitched a pair of boots at Saucier, who dodged, and retaliated by pinning Belgard against the wall. Belgard’s response to this was to shoot Saucier several times. After the incident, Mr. Belgard turned himself in to the police. He was duly charged with attempted second degree murder, tried on November 17th through 20th, 1980, and found guilty as charged. From such verdict defendant has perfected the present appeal. Eight assignments proper and one supplemental assignment were argued. As at least one of these assignments has merit sufficient to warrant reversal and remand for new trial, we find it unnecessary to consider any other assignments.

SUPPLEMENTAL ASSIGNMENT OF ERROR

In the supplemental assignment, defendant argues that the instructions regarding specific intent given to the jury by Judge Jackson were improper. Volume IV of the record, pgs. 752-753, indicate that the jury was instructed on the element of specific intent as follows:

Now, Second Degree Murder — the crime — is the killing of a human being. ..
(1) When the offender has a specific intent to kill or to create great bodily harm.. .
Now, the charge in this case is attempted second degree murder, so now let me define attempt. Attempt is defined as follows: Any person who, having the specific intent to commit a crime, does or omits an act for the purpose of, and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended, and it shall be immaterial whether, under the circumstances, he would actually have accomplished his purpose.. .

It is clear that the law of Louisiana requires specific intent to kill; specific intent to cause serious bodily harm will not suffice. State v. Strother, 362 So.2d 508 (La.1978); State v. Butler, 322 So.2d 189 (La.1975). The specific intent required for an attempt is an intent to commit the completed crime. It is obvious from a reading of the instructions that the jury could easily have concluded that the defendant had a specific intent to cause great bodily harm, took some overt action in furtherance of it, and thusly arrived at the conclusion that he was guilty as charged.

This error involves only the inclusion of a few words, but those few words are seriously detrimental to the defendant’s Due Process rights. “The Due Process Clause protects the accused against conviction, except on proof beyond a reasonable doubt, of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970). The Code of Criminal Procedure is specific on the duty of the Court in these cases: “In all cases, the Court shall charge the jury that ... (a) person accused of crime is presumed by law to be innocent until each element of the crime, necessary to constitute his guilt, is proven beyond a reasonable doubt. C.Cr.P., Art. 804A(1). State v. Butler, supra, is perfectly on point here:

To suggest that no substantial error of law occurs, where the jury was in effect instructed that a person guilty of aggravated battery can be convicted of attempted murder, although he has no specific intent to kill by the battery, is to suggest an untrammelled discretion of prosecutor, jury, and court to punish an accused for offensive conduct. (State v. Butler, supra, at 193.)

Therefore, the only question remaining to this Court is whether the objections to the improper charge were perfected timely. This Court has consistently held that absent contemporaneous objection a defendant may not on appeal complain of the trial judge’s charge to the jury. State v. Progue, 350 So.2d 1181 (La.1977). However, this Court in State v. Williamson, 389 So.2d 1328 (La.1980), provided an important exception to that rule:

... it is within the province of this reviewing Court to entertain complaint of Constitutional violations on appellate review, notwithstanding that consideration of such complaint more often than not is deferred until filing of a writ of habeas corpus. This Court’s usual pretermission of such issues stems from the need of an evidentiary hearing which can only be had incident to the writ of habeas corpus. The record before us, however, bears full and sufficient proof of the error which no posterior hearing could augment. For this reason, the need for delay is obviated. (State v. Williamson, supra, at 1331.)

The rule, therefore, is that the error assigned must be of Constitutional level and that the record before the Supreme Court on the appeal must provide complete proof of the claim. Both criteria are met in this case.

ON APPLICATION FOR REHEARING

CALOGERO, Justice,

concurring in the denial.

State v. Williamson, 389 So.2d 1328 (La.1980) on which the defendant relies to support his application for rehearing is distinguishable from the case before us.

In Williamson, an error in jury instructions relative to the definition of the crime charged was found to be “of such importance and significance as to violate fundamental requirements of due process.” Therefore, we entertained the defendant’s complaint notwithstanding his failure to object at the time the instruction was given. The law regarding the definitions of first and second degree murder had been changed less than a month before the crime for which the defendant Williamson was charged. As a result, the prosecutor mistakenly referred to the former law and the judge mistakenly charged the jury under the former definitions of first and second degree murder. To further compound the mistake, the judge in Williamson read the jury a list of responsive verdicts which were applicable under the former definitions. Because of the glaring and obvious nature of the errors made, because no further evi-dentiary hearing was needed to explore the extent of the error and its impact on the jury in the context of the trial as a whole, this Court entertained a constitutional attack on the conviction without requiring defendant to file a writ of habeas corpus. The absence of a contemporaneous objection was found not to bar upsetting the conviction because of constitutional deficiencies.

This case is distinguishable from Williamson. There was no recent legislative change in the legal definitions of the crime charged of which the trial judge and trial attorney were oblivious. Nor is it apparent from the record that the jury mistakenly applied the law, despite the fact that they may have been given an erroneous impression from the wording of the judge’s charge. Application of this contemporaneous objection rule is designed for just such a case as this. Defendant cannot neglect to afford the trial judge an opportunity to correct the charge, take his chance on a jury acquittal, then complain after conviction of the error.

For these reasons I concur in denial of the rehearing.

       Judges James C. Gulotta and Jim Garrison of the Fourth Circuit and Bernard J. Bagert, Sr. of the Orleans Parish Criminal District Court, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Calogero, Marcus, and Blanche.

      . “Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.” R.S. 15:447.

      . “To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.” R.S. 15:448.

      .The trial court admonished the jury with the following statements:
      “BY THE COURT: Let the record reflect that the jury venire has returned to the courtroom. Ladies and Gentlemen of the jury venire, all of you, those of you seated in the box, those of you out in the audience, please pay very strict attention to what I’m about to tell you.
      You are to completely disregard the comment made by the prosecutor. Completely disregard it, it is incorrect. Now, let me explain to you that every accused begins the trial of a case innocent — presumed innocent. It is up to the State to establish by its evidence to the jury’s satisfaction, beyond a reasonable doubt that he is guilty. The defendant does not have to prove anything. It is up to the State to carry the burden of proof. Now, there is but one exception to that and that is simply this. Where a defendant enters the dual plea of Not Guilty and Not Guilty by Reason of Insanity, as to the issue of insanity and that only, the defendant bears the burden of proving that at the time of the commission of the offense, because of mental disease or defect he did not know or could not distinguish between right and wrong.
      Now, if you are selected as a juror in this case, this will be your burden: (1) You must look at the State’s evidence to determine the question of guilt or innocence as I’ve explained it to you. (2) Should it be your opinion that the defendant is guilty, then you must look at the question of sanity or insanity at the time of the commission of the offense. Here, the burden of proof, as I’ve explained is on the defendant to establish that he was insane as I have defined it for you at the time of the commission, and here the burden of proof both is on the defendant and the degree of proof is not the same. The degree of proof is: by a preponderance of the evidence which means something is more likely so than not so.

      . This court considered an identical instruction in State v. Heads, supra. The United States Supreme Court granted certiorari in Heads v. Louisiana, 444 U.S. 1008, 100 S.Ct. 654, 62 L.Ed.2d 637 (1980), and remanded the case to be considered in light of Sandstrom v. Montana, supra. We remanded the case to the district court to determine whether the instruction constituted harmless error under Sand-strom.

      . Instruction 12 reads:
      “Notwithstanding that one is an original agres-sor (sic) he may nevertheless use force or violence in defense of his person if the person originally attacked uses excessive force against him or force beyond what it reasonable (sic) required under the circumstances.”

      . The trial judge gave the following charge in reference to the defense of justification and the aggressor doctrine:
      “The use of force or violence upon the person of another is justifiable for the purpose of preventing a forcible offense against one’s person if the force is reasonable and apparently necessary to prevent the offense.
      Thus, if you find that the defendant committed the offense charged for the purpose of preventing a forcible offense against his person; and that the amount of force or violence used was reasonable; and that the force or violence used was apparently necessary to prevent the forcible offense; then you must find the defendant not guilty.
      A defendant who raised the defense that he acted in self-defense does not have the burden of proof on that issue. The state has the burden of proving beyond a reasonable doubt that the offense was not committed in self-defense. A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.
      Thus, if you find that the defendant was the aggressor or that he brought on the difficulty, you must reject his claim of self-defense unless you find:
      (1) that he withdrew from the conflict; and that his withdrawal was a good faith; and that he withdrew in a manner that put his adversary on notice that he wished to withdraw and discontinue the conflict.”

      . Proposed Instruction 14 provided the following:
      “In deciding whether the defendant possessed the specific intent to kill or inflict great bodily harm upon Steve Saucier, if you are convinced that a preponderance of the evidence shows that the condition of the mind of the defendant at the time of the crime, together with the surrounding circumstances, was such that the defendant was not capable of forming this specific intent to kill or inflict great bodily harm, then you must find the defendant NOT GUILTY of the crime of attempted second degree murder. You should then proceed to consider whether the defendant may be guilty of a lesser included offense, such as attempted manslaughter.”
      Instruction 15 stated:
      “If you should find that the defendant has established by a preponderance of the evidence:
      (1) that, at the time of the occurrence of the conduct in question and with respect to that conduct, he was suffering from a mental disease or mental defect; and
      (2) that the alleged shooting of Steve Saucier was the product of or result of this mental disease or mental defect then the law treats the defendant as not criminally responsible for the unlawful act and you must necessarily find the defendant NOT GUILTY BY REASON OF INSANITY.”

      . C.Cr.P. 782 states in part:
      “... Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.... ”


author: DIXON, Chief Justice. MARCUS, Justice LEMMON, Justice, BLANCHE, Justice

text:
    John P. EVANS v. William E. EVANS et al. Victor SCOTT and Ruby Chenault Scott v. William E. EVANS, Appalachian Insurance Company et al.
    No. 81-C-1680.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    Rehearing Denied March 12, 1982.

      George K. Anding, Jr., of Watson, Blanche, Wilson & Posner, Baton Rouge, for defendant-applicant.
    Claude F. Reynaud, Jr., of Breazeale, Sachse & Wilson, G. T. Owen, III, Judith A. Chevalier of Owen, Richardson, Taylor, Mathews & Atkinson, Pamela C. Walker, John Dale Powers of Sanders, Downing, Kean & Cazedessus, W. Steven Mannear, Baton Rouge, for plaintiffs-respondents.
   DIXON, Chief Justice.

Hurl Cotner Scott executed a will in statutory form on April 5, 1977. In the will, she left seven particular bequests of property to seven legatees, and the remainder of her estate to Victor Scott and Willard Scott “share and share alike.” The testatrix died on November 26, 1977, leaving no descendants or siblings. Her succession was opened and the will probated. A judgment of possession was rendered on April 25, 1977, placing the legatees into possession according to the dispositions in the testament.

Shortly thereafter, one of the legatees, John P. Evans, attempted to sell the piece of real estate left to him as a particular bequest. During a title examination of the property, it was discovered that one of the residuary legatees, Victor Scott, had signed the will as a witness. The attorney conducting the examination for the purchaser rejected the title because he was of the opinion that a defect might exist in the title. John P. Evans then filed an action for a declaratory judgment, as did Victor Scott and Ruby Chenault Scott, to determine the validity of the testament. Named as defendants are all legal heirs of the decedent, known, unknown or absentee, Erwin LaRose, the attorney who drafted the will, and Appalachian Insurance Company, the attorney’s professional liability insurer. An attorney was appointed to represent the defendants. The parties submitted the case to the court on twelve stipulations of fact.

Plaintiffs ask that the will be declared valid or that only the bequest to Scott be nullified. In the event the will is invalidated, plaintiffs seek damages against the attorney who prepared the will and his insurer. The trial court and the court of appeal held that only the legacy to Victor Scott was invalid and sustained the remainder of the testament. 399 So.2d 721. We granted certiorari to review the correctness of this decision.

The testament in the instant case was confected according to the Statutory Wills Act of 1952 (R.S. 9:2442 et seq.). R.S. 9:2442 E, governing the requirements for witnesses, states:

“A competent witness for the purposes of this Section is a person who meets the qualifications of Civil Code Articles 1591 and 1592, and who knows how to sign his name and to read the required attestation clause, and is physically able to do both.”

As originally enacted, no reference was made in the statute to C.C. 1591 and C.C. 1592. In 1974, the legislature amended this provision, specifically incorporating the standards for competent witnesses found in these articles into the formalities for statutory wills.

C.C. 1591 provides:

“The following persons are absolutely incapable of being witnesses, to testaments:
1. Children who have not obtained the age of sixteen years complete.
2. Persons insane, deaf, dumb or blind.
3. Persons whom the criminal laws declare incapable of exercising civil functions.”

C.C. 1592 contains the following prohibition:

“Neither can testaments be witnessed by those who are constituted heirs or named legatees, under whatsoever title it may be.”

These are the only articles enumerated by the legislature in the amended version of R.S. 9:2442. The issue presented to us is whether C.C. 1595, which is the penalty provision for noncompliance with the testamentary formalities, also applies to statutory wills.

C.C. 1595 states:

“The formalities, to which testaments are subject by the provisions of the present section, must be observed; otherwise the testaments are null and void.”

Both of the lower courts observed that C.C. 1595 is not mentioned in R.S. 9:2442 as amended. The courts concluded that, in the absence of specific reference by the legislature, C.C. 1595 was not meant to apply to statutory wills. Through this reasoning, the courts invalidated only the bequest to the legatee who was a witness to the will, leaving the rest of the will effective.

This court has recognized that the Civil Code should be integrated into the Statutory Wills Act whenever the statutory will provisions are incomplete. Succession of Eck, 233 La. 764, 98 So.2d 181 (1957). In Eck, the wife of the universal legatee witnessed a statutory will. The court observed that the statute made no restriction “with respect to who may witness a will drawn under its provisions.” Succession of Eck, supra, 233 La. at 775, 98 So.2d at 185. The court held that under those circumstances, the substantive law of Louisiana must apply. Since the wife did not fall within any of the incapacities listed in the Code, the will was not invalidated. The court’s holding in this regard has been discussed with approval.

Here, also, the legislature has not delineated the consequences of noncompliance with C.C. 1591 and C.C. 1592. Therefore, we must look to other statutory materials, particularly the Civil Code, for an answer. Under C.C. 1595, failure to comply with the requirements enumerated in these articles results in invalidity of the will in its entirety. Absent some express statement by the legislature to the contrary, we are bound to declare the will null and void.

It is a fundamental principle of statutory construction that laws concerning the same subject matter must be construed with reference to each other. C.C. 17; see State v. Brady, 310 So.2d 593 (La.1975). In this case, C.C. 1574 through C.C. 1595 are found in Book III, Title II, Section 2 of the Code designated “General Rules on the Form of Testaments.” C.C. 1595 follows C.C. 1591 and C.C. 1592, describing the consequences of a failure to heed the prohibitions in the preceding articles. C.C. 1591 and C.C. 1592 merely disqualify certain persons from acting as witnesses to a testament; they do not explain the consequences of violation of the prohibitions. C.C. 1595 clearly and unequivocally outlines the sanctions for the preceding articles.

The court of appeal found Succession of Roussei, 373 So.2d 155 (La.1979), factually distinguishable and therefore not controlling. In Roussel, a nuncupative will by private act was contested on the ground that only four witnesses resided in the parish where the will was executed instead of the requisite five. This court held that the entire will was void, applying the penalty of C.C. 1595 to C.C. 1581. We stated:

“A material deviation from the manner of execution prescribed by statute will be fatal to the validity of the will. The fact that there is no fraud, or even suggestion or intimation of it, will not justify the courts in departing from the statutory requirements, even to bring about justice in the particular instance, since any material relaxation of the statutory or codal rule will open up a fruitful field for fraud, substitution, and imposition.
The requirements of Article 1581 that ‘[a] nuncupative testament, under private signature, must be ... in presence of five witnesses residing in the place where the will is received’ are mandatory and Article 1595 declares they ‘must be observed; otherwise the testaments are null and void.’ ...” 373 So.2d at 157-158.

Those litigants who favor upholding the will suggest renunciation by Victor Scott of his bequest as an alternative means to sustain the will. They cite Lee v. Kincaid, 359 So.2d 232 (La.App.1978), writ denied, 360 So.2d 198, in support of their position, urging that renunciation by Scott would permit us to preserve the testatrix’s intent as to the other dispositions in the will while simultaneously complying with the codal formalities in C.C. 1592. We agree that renunciation by a legatee who is also a witness might serve as an appropriate vehicle to cure a defect which existed at the time of its execution. However, this possible solution is not presently available; the legacy has not been renounced. Victor Scott, along with Ruby Chenault Scott, suggested renunciation by Victor as an alternative means of upholding the will in an amended petition and in a trial brief. Nonetheless, on appeal, Victor Scott filed a brief independently, asking that the lower court’s judgment invalidating the bequest to him be overturned and his bequest reinstated. He filed no brief in this court and did not join in the brief filed by Ruby Chenault Scott. Lee v. Kincaid, supra, presented a different situation. In Lee, the plaintiff brought suit to have a nuncupative will by private act declared valid. The plaintiff was a named legatee in the will and also witnessed the will. To remove his incapacity to act as a witness, the plaintiff formally renounced his legacy before trial. The renunciation was already accomplished, and the record contained the authentic act of renunciation by the legatee-witness. The result reached by the court was correct. At the time of probate, the witness was not a legatee under the will; hence, the prohibition in C.C. 1592 did not exist.

Even if Victor Scott now wished to renounce, the time for him to do so has passed. The Civil Code provisions relating to acceptance and renunciation apply to both testate and intestate successions. C.C. 976. According to C.C. 1031, an heir (or legatee) may renounce the succession at any time within the longest prescription of the rights to immovables, “provided he has done no act to make himself liable as heir.” Victor Scott executed the affidavit for probate of the testament and is recognized as a legatee in the judgment of possession. Therefore, he has expressly accepted the succession thereby making himself liable as heir and preventing a belated renunciation. See C.C. 988, C.C. 1424.

It has been suggested in brief that a renunciation is not barred by a prior acceptance. The only support for this position is found in Poultney’s Heirs v. Cecil’s Executor, 8 La. 321 (1835), wherein the court in dicta indicated that, under the Code of 1808, an heir could renounce after having accepted, and then accept again “at a later date.” Cf. Clauss v. Burgess, 12 La.Ann. 142 (1857). This language is surplusage and not to be given much weight. The Code unequivocally declares in C.C. 1009 that:

“The heir, who is of age, can not dispute the validity of his acceptance, whether it be express or tacit, unless such acceptance has been the consequence of fraud practiced or violence exercised against him; he never can urge such claim under a pretext of lesion.”

Although this article does not expressly forbid renunciation of a prior acceptance, it clearly states that an acceptance cannot be disputed in the absence of fraud or violence. Such strong language demonstrates the irrevocable nature of an acceptance; it was not intended that an acceptance could be lightly revoked. Therefore, we hold that Victor Scott, having unconditionally accepted the succession, cannot now revoke that acceptance in order to cure the testament with a renunciation of his bequest. The material deviation from the prohibition in C.C. 1592 against a legatee acting as a witness renders the will as a whole null and void under C.C. 1595. The succession must therefore be distributed pursuant to the laws of intestacy.

Plaintiffs next urge their demand for damages against the attorney who prepared the testament and his malpractice insurer. The record indicates that the parties stipulated that only two issues were “presented to this Court at this time”— namely, whether or not the will was valid and, if not, whether a renunciation by Victor Scott could validate the will. The parties provided that “[a]ny issues remaining after resolution of the above submitted issues, including any question of damages, will be heard and/or tried at a later date, if necessary or required.” Thus, the issue of the attorney’s liability to plaintiffs has not yet been tried at the district court level. We. therefore remand the case to the trial court for a trial of this issue.

For these reasons, the judgment of the lower courts is reversed, at respondents cost; the testament of Hurl Cotner Scott dated April 5, 1977 is declared invalid; the case is remanded to the district court for further proceedings in accordance with this opinion.

MARCUS, LEMMON and BLANCHE, JJ., dissent and assign reasons.

MARCUS, Justice

(dissenting).

I do not consider that art. 1595 of the Civil Code, which provides that “[t]he formalities, to which testaments are subject by the provisions of the present section must be observed; otherwise the testaments are null and void” (emphasis added), applies to statutory wills. Statutory wills are provided by La.R.S. 9:2442, which, as originally enacted, only required the presence of two witnesses to be valid. In 1976, the legislature amended the statute, specifically incorporating the standards for competent witnesses found in arts. 1591 and 1592 of the Civil Code. These are the only articles enumerated by the legislature in the amended version of La.R.S. 9:2442. Article 1595 is not mentioned. Accordingly, I do not consider that it was intended that art. 1595 was to apply to statutory wills. Since statutory wills cannot be witnessed by legatees, the bequest to the legatee who was a witness should be invalidated, leaving the remainder of the will valid. Accordingly, I respectfully dissent.

LEMMON, Justice,

dissenting.

C.C. Art. 1592, reflecting a concern for the freedom of the testator, is designed to prevent a witness’ undue influence or fraud upon the testator by prohibiting a person from being both a legatee and a witness. The court can serve that purpose by voiding the legacy to the witness, while still achieving the desirable goal of effectuating the testator’s intention as far as possible.

I would hold that C.C. Art. 1592 contains its own sanction (the voiding of the legacy) and that C.C. Art. 1595 does not apply. The judgment of the lower courts should be affirmed.

BLANCHE, Justice

(dissenting).

I respectfully dissent for reasons assigned by Lemmon, J.

      .The testament appears in the record as follows:

        “Last Will and Testament

      STATE OF LOUISIANA
      PARISH OF EAST BATON ROUGE
      I, Mrs. Hurl Cotner Scott, widow of Robert E. Scott, being of sound mind and knowing the uncertainty of life, do make this my last will and testament, revoking all former wills.
      I designate and appoint Victor Scott executor of this will and my estate and I dispense him from furnishing bond.
      1. I leave and bequeath unto Mrs. J. Ken Walters, 670 Bromley Drive, Baton Rouge, Louisiana 70808, my red gold diamond ring and my diamond cluster ring.
      2. I leave and bequeath unto Mrs. Lillie Mae Phillips, 2655 Washington Avenue, Baton Rouge, Louisiana, the sum of $1,000.00 cash.
      3. I leave and bequeath to Mrs. Zelma Vienne, 847 West Grant Street, Baton Rouge, Louisiana 70808, my diamond wrist watch, diamond engagement ring and my fur jacket.
      4. I leave and bequeath unto Anna Mae Evans, 5601 Queensborough Drive, N.E., Atlanta, Georgia, my diamond pin and earrings and my diamond wedding ring.
      5. I leave and bequeath unto John P. Evans, 5601 Queensborough Drive, N.E., Atlanta, Georgia, the land and improvements located at 1890 Blouin Avenue, Baton Rouge, Louisiana.
      6. I leave and bequeath unto Boyd A. Evans, 117 Beau Chere Drive, Mandeville, Louisiana 70448, the sum of $10,000.00 cash.
      7. I leave and bequeath unto John P. Evans and Boyd A. Evans, share and share alike, ail of the household furniture, fixtures and contents located in my house at 1890 Blouin Avenue, Baton Rouge, Louisiana.
      8.I leave and bequeath the remainder of my estate of every nature and kind unto the two living brothers of my late husband, Victor Scott and Willard Scott, share and share alike.
      I desire that Erwin A. LaRose act as attorney for my succession and attorney for the executor of my estate.
      This testament, consisting of two pages, has been executed at Baton Rouge, Louisiana, this 5th day of April, 1977.
      s/ Mrs. Hurl Cotner Scott Mrs. Hurl Cotner Scott
      This testament has been signed on each of its pages by the testatrix, Mrs. Hurl Cotner Scott, in our presence, and declared by the testatrix, in our presence, to be her last will and testament, and in the presence of the testatrix and of each other, we, the undersigned Notary and witnesses, have hereunto subscribed our names, this 5th day of April, 1977.
      WITNESSES:
      s/ Jacqueline A. Fisher
      s/ Mrs. Hurl Cotner Scott Mrs. Hurl Cotner Scott

        s/ Victor I. Scott
      s/ Erwin A. LaRose NOTARY PUBLIC”

      . Certain legal heirs were listed in the petitions by name: William E. Evans, Herbert Miller, Lincoln Miller, Virley Miller, Mrs. Martin Lloyd, Mrs. Noble King, John P, Evans, and Boyd A. Evans. Three first cousins of the decedent intervened in the suit.

      . The Code Civile of France contains a corresponding requirement. See Code Civile art. 975 (1804). Planiol interprets the article to forbid legatees serving as witnesses, without regard to the value of their bequest. 3 Planiol, Civil Law Treatise No. 2711 (La. Law Inst. transl. 1959).

      . At least one appellate court has reached the opposite inference. In Succession of Melancon, 330 So.2d 679, 682 (La.App.1976), the court concluded:
      “The amendment of LSA-R.S. 9:2442 following Succession of Gordon, supra, and Woodfork v. Sanders, supra, appears to constitute a clear legislative expression that the provisions of our civil code generally applicable to all wills and not in conflict with LSA-R.S. 9:2442, likewise apply to the statutory will.... ”
      In Succession of Gordon, 257 La. 1086, 245 So.2d 319 (1971), the court held by a plurality vote that R.S. 9:2442 did not require a date in the testament. In Woodfork v. Sanders, 248 So.2d 419 (La.App.1971), writ denied, 259 La. 759, 252 So.2d 455, the court held that R.S. 9:2442 did not prohibit a legatee from acting as a witness. Both of these decisions were subsequently overruled by legislative amendments mandating these formalities in statutory wills, as in codal wills.

      . See, Oppenheim, The Testate Succession, 36 Tul.L.Rev. 1, 14 (1961).

      . We have recognized that our statutory will is based on statutory wills derived from common law states which can be traced to the English Statute of Frauds, rather than civilian law. Succession of Porche, 288 So.2d 27 (La.1973); Succession of Gordon, supra; Succession of Morgan, 257 La. 380, 242 So.2d 551 (1970). The Statute of Frauds declares:
      "... [A]ll devises and bequests of any lands and tenements ... shall be in writing and signed by the party so devising the same, or by some other person in his presence and by his express directions, and shall be attested and subscribed in the presence of the said devisor by three or four credible witnesses, or else they shall be utterly void and of none effect.” Statute of Frauds (1677), 29 Car. II, c. 3, xii. The majority of common law states only invalidates gifts to attesting witnesses, permitting the remainder of the will to stand. See, 46 Tul.L.Rev. 558, 561 (1971).

      .The court of appeal realized that, if C.C. 1595 were found to apply, there would be no alternative but to invalidate the entire will since C.C. 1595 clearly states that the testament is null and void, not just the bequest.
      Much reliance has been placed by the proponents of the will and by the court of appeal upon our decision in Succession of Purkert, 184 La. 792, 167 So. 444 (1936). That case involved a nuncupative will by public act in which the testatrix bequeathed the balance of her estate to the notary public. The court held that the bequest to the notary was null but upheld the rest of the will. In Purkert, as opposed to the case now before us, the validity of the whole will was not before the court as the heirs only attacked the residuary clause and did not seek to completely invalidate the will. See, Oppenheim, Louisiana Civil Law Treatise, Successions and Donations, vol. 10, § 114, p. 217 (1973). Had the court been faced with this question, it has been surmised that the court would probably have declared the will invalid in its entirety. See 11 Tul.L.Rev. 495, 497 (1936). But see, Oppenheim, supra.

      . The Civil Code of 1808 contained a similar article, although the wording was somewhat broader:
      “In like manner, so long as the prescription of renunciation is not determined, the heir may still renounce, provided he has made no act of heir.” Dainow, Compiled Edition of the Civil Codes of Louisiana (1972).
      In amending C.C. 1031 in 1870, the redactors added the phrase “make himself liable.” Even under the amended article, Victor Scott is precluded from renouncing; there is no doubt but that acceptance of a succession renders the universal legatee liable for “the debts of the succession, according to the same rules and under the same exceptions as heirs.” C.C. 1424.

      . C.C.P. 3062 states:
      “The judgment of possession rendered in a succession proceeding shall be prima facie evidence of the relationship to the deceased of the parties recognized therein, as heir, legatee, surviving spouse in community, or usufructuary, as the case may be, and of their right to the possession of the estate of the deceased.”
      While the judgment of possession establishes the relationship of the legatees to the testator, it is only entitled to prima facie validity and is not crucial to the determination of whether a legatee could renounce. Rather, it is the legatee’s acceptance of the succession by taking an active role in the probate of the will and his effort to preserve his portion of the succession in this litigation which eliminates the possibility of a subsequent renunciation.

      . C.C. 1025, located in the articles on accretion of succession property, intimates that a renunciation following an earlier acceptance is permissible. This article provides that “when an heir, who has already accepted, has caused his acceptance to be rescinded,” his portion need not be accepted by the other accepting coheirs. It is important to note that the article does not speak of a renunciation; on the contrary, it deals with a rescission, the situation described in C.C. 1009; should an heir or legatee successfully contest the validity of his acceptance on the ground of fraud or lesion, he may rescind his acceptance.


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

text:
    HARRY’S HARDWARE, INC. v. James C. PARSONS, Superintendent of Police, et al.
    Nos. 81-C-1614, 81-C-1633.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    Rehearing Denied March 19, 1982.

      William J. Guste, Jr., Atty. Gen., Robert Caluda, Staff Atty., New Orleans, Harry F. Connick, Dist. Atty., John Craft and Kevin McNary, Asst. Dist. Attys., Salvador Anzel-mo, Brian Meisner, Asst. City Attys., Galen S. Brown, Deputy City Atty., for defendant-applicant.
    Rene Lehmann, of Midió & Lehmann, New Orleans, for plaintiff-respondent.
    Leopold Stahl, of Stahl & Berke, New Orleans, for intervenor.
   BLANCHE, Justice.

Harry’s Hardware, Inc. filed suit in Orleans Parish Civil District Court seeking to enjoin enforcement of the Sunday Closing Law, R.S. 51:191-194. Originally named as defendants were James C. Parsons, then Superintendent of the New Orleans Police Department and Harry Connick, in his capacity as District Attorney for the Parish of Orleans. As the petition attacked the constitutionality of the state statute, William Guste, the Louisiana Attorney General, was later made a defendant.

A temporary restraining order was granted, but following trial on the merits, the plaintiff’s suit for permanent injunction was dismissed. On appeal, the Fourth Circuit Court of Appeal reversed, finding the statute in question manifestly unconstitutional, and remanded the suit for issuance of a permanent injunction against its enforcement. 399 So.2d 632. As a state statute was declared unconstitutional, this case comes before us on an appeal of right.

Louisiana’s Sunday Closing Law is comprised of four sections under Title 51 of the Revised Statute. Section 191 creates a general prohibition of the conduct of business on Sunday.

Section 192 exempts several types of businesses from the prohibition established by Section 191. Included among the exemptions are:

News dealers and newspaper offices, Printing offices,
Book stores,
Watering places and public parks,
Places of resort and recreation,
Livery stables,
Railroads,
Hotels and boarding houses,
Undertaker shops,
Art galleries,
Drug stores and apothecary shops,
Public and private markets,
Theatres, and
Restaurants.

Section 193 requires that barber shops be closed. Section 194(A) prohibits the sale of specific items on Sunday, including:

Clothing or wearing apparel,
Lumber or building supply materials,
Furniture,
Home or business or office furnishings,
Household, office or business appliances, and
Automobiles.

Section 194(E) provides an exemption to this prohibition for sales made for charitable, medical or funereal purposes. Sales within the French Quarter of New Orleans are also exempted.

Section 194(C) states the objectives of the Sunday Closing Law: “[T]o promote the health, recreation and welfare of the people of this state and to prevent unfair competition among persons, firms or business establishments . .. ”.

It is undisputed that Sunday Closing Laws are not per se unconstitutional. State legislatures within their general police powers may enact legislation setting aside a uniform day of rest and regulating or restricting sales on that day. McGowan v. State of Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). The ultimate constitutionality of such a statute can be determined only by an examination of its particular provisions. A closing law may not create arbitrary and unreasonable business classifications which have no bearing on the public health and welfare considerations that prompted its enactment.

In both lower courts, the plaintiff contended that R.S. 51:192 creates an arbitrary and unreasonable classification. There is no doubt that drug and grocery stores are treated differently from hardware stores under the law. Drug stores and grocery stores (as public and private markets) may remain open on Sunday, while hardware stores must .be closed. Moreover, those drug and grocery stores may sell any item of their inventory not expressly prohibited from sale on Sunday by R.S. 51:194(A).

According to the plaintiff, there is no rational reason for this differing treatment. A majority of the non-food and non-drug items sold on Sunday by the drug and grocery stores are available for sale in plaintiff’s hardware stores. The court of appeal found merit in this argument, and declared the Sunday Closing Law unconstitutional for the following reason:

“To permit drugstores and grocery stores to be open on Sunday and sell their non-drug and non-food stock while hardware stores carrying the same and/or similar merchandise are required to be closed constitutes invidious discrimination against hardware stores and is patently discriminatory.”

We cannot agree that any discrimination inherent in the Closing Law is of such an unreasonable and invidious nature as to render the statute constitutionally infirm. Not every discrimination promulgated by statute is unconstitutional. The constitutional safeguard is offended only if the discriminatory classification rests on grounds wholly irrelevant to the achievement of the state’s objective.

Unless a statute interferes with the exercise of fundamental personal rights, or is drawn upon inherently suspect distinctions such as race or religion, its constitutionality is presumed and the jurisprudence requires only that the classification challenged be rationally related to a legitimate state interest. City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976).

The statement of legislative purpose in R.S. 51:194(C) expresses a twofold objective: promotion of the health, recreation and welfare of the citizens of this state, and prevention of unfair competition among persons, firms or businesses. To this end, the law provides for a forced day of rest. All businesses must close their doors on Sunday. This statutory requirement is followed by the vast majority of business operations in the State of Louisiana. The plaintiff has presented no evidence that the exceptions to this rule have become broader than the rule itself.

The exemptions created by the statute are those that the legislature deemed necessary to safely provide for the welfare of the public while mandating a forced closing of most businesses. Drug stores and public markets are exempted to allow the sale of medicine and food on Sunday. Funeral homes may remain open as the inevitability of death cannot be averted on Sunday. The exemptions for theatres, book stores and art galleries are consistent with the intent to provide a day of rest and recreation. Hotels are exempted to provide a place of residence for out-of-town visitors.

Each of the exemptions provided by the Sunday Closing Law is rationally related to the state’s objective in enacting such a statute. The discrimination suffered by the plaintiff’s hardware stores is a by-product of a rational legislative scheme whereby the leisure and recreation of the populace is fostered without concomitant deprivation of access to essentials such as food and medicine. This discimination does not become invidious merely because those drug and grocery stores which are allowed to remain open may also sell non-food and non-drug items.

Although the plaintiff demonstrated substantial similarity between the inventory of its hardware outlets and the inventories of present day drug and grocery stores, we do not find that this similarity renders any statutory distinction between hardware stores and food or drug stores arbitrary and unreasonable. While inventories may overlap, drug stores remain primarily retailers of pharmaceutical products and grocery stores remain primarily retailers of food items. To provide public access to precisely these essentials, rather than hardware or other non-food or non-drug items, drug and grocery stores may remain open on Sunday. We cannot say the legislature acted unreasonably or arbitrarily in treating food and drug stores in a different manner than hardware stores under the Sunday Closing Law.

The objectives behind the Sunday Closing Law were discussed by this Court in State v. Wiener, 245 La. 889, 161 So.2d 755 (La.1964). “The legislature, so it declares, enacted the law to promote the health, recreation and welfare of the people by making the first day of the week a day of rest and to prevent unfair competition by those who might choose to work while others rested.” Keeping in mind the primary thrust of the statute, to provide a forced day of rest, it becomes apparent that the purpose of the Sunday Closing Law is not the prevention of all unfair competition among businesses. By enacting a general prohibition against the conduct of business on Sunday, the law extends the full benefit of the forced day of rest to merchants and other businessmen who might otherwise feel compelled to remain open.

Those businesses which may remain open on Sunday provide the public with necessary goods or services. Both objectives of the Sunday Closing Law are furthered by closely limiting this class of businesses. The legislature chose not to exempt hardware stores from the general Sunday prohibition. That decision does not render the statute unconstitutional. It is a legislative prerogative to ascertain which stores should and should not be open. That prerogative has not been exercised arbitrarily or unreasonably in this case.

For the foregoing reasons, the decision of the court of appeal is reversed and the injunction prohibiting the enforcement of R.S. 51:191-194 is hereby vacated.

LEMMON, J., dissents.

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

WATSON, Justice,

dissenting.

The Court of Appeal correctly held in Harry’s Hardware, Inc. v. Parsons, 399 So.2d 632 (La.App. 4 Cir. 1981) that the statute discriminates between similar businesses and its classifications are not relevant to any legitimate state objective. In this respect, the Sunday Closing Law is manifestly unconstitutional, warranting permanent injunctive relief in favor of plaintiff.

Hardware accounts for only 18% of plaintiff’s sales. A large volume of its business is in home and garden supplies. Almost every item sold by Harry’s Hardware, Inc., is also offered by grocery and drug stores in the New Orleans area. Apart from food and medicine, the stores all sell essentially the same merchandise. The employees of Harry’s Hardware made Sunday purchases of eighty-two different items which are also carried in their stock. Walgreens Drug Store offered for sale in a Sunday advertisement at least forty-three items which are carried in stock at Harry’s Hardware, Inc. Because drug stores and grocery stores are allowed to open on Sundays and Harry’s is not, Harry’s has a distinct competitive disadvantage. On a given Sunday, one Harry’s Hardware store sold $3,800 worth of merchandise which would allegedly have been permanently lost to neighboring establishments had the store been closed.

An individual’s right to dispose of private property is subject to reasonable statutory restrictions and the reasonable exercise of the police power. Louisiana Constitution of 1974, Art. 1 § 4. Legislation creating a uniform day of rest on which business activities are restricted is a reasonable exercise of the police power. McGowan v. State of Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); State v. Scallon, 374 So.2d 1232 (La., 1979). However, laws regulating economic and business concerns must have a rational basis. City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976). A statute cannot invidiously discriminate between those in the same business who properly belong in the same class. West v. Winnsboro, 252 La. 605, 211 So.2d 665 (1968). To be constitutional, the classifications in the Sunday Closing Law must have a rational basis. The statute purports to aid the public welfare and prevent unfair competition. LSA-R.S. 51:194 C. The statutory scheme is a reasonable exercise of the police power only if it is relevant to these purposes.

The statute might rationally distinguish between purveyors of certain goods, medicine and food being items of more immediate necessity than hardware and furniture. However, it does not limit its exceptions to those things necessary or desirable on a day of rest. Why can one buy a house or mobile home on Sunday, but not a car; furniture from a house, but not from a furniture store; car repairs at a service station, but not at a dealer’s service department? See Henderson v. Antonacci, 62 So.2d 5 (Fla., 1952) and Rutledge v. Gaylord’s, Inc., 213 S.E.2d 626, 233 Ga. 694 (1975).

The distinctions between various kinds of business emporiums have become nebulous. Many stores are now of a general purpose nature. Drug and grocery stores no longer limit themselves to drugs and groceries. “To permit drugstores and grocery stores to be open on Sunday and sell their non-drug and non-food stock while hardware stores carrying the same and/or similar merchandise are required to be closed constitutes invidious discrimination against hardware stores and is patently discriminatory.” 399 So.2d 638, 639. Harry’s Hardware and its competitors, who are allowed to stay open on Sundays, are in sufficiently similar circumstances to make discrimination between them illegal. See Broadbent v. Gibson, 140 P.2d 939, 105 Utah 53 (1943); Spartan’s Industries, Inc. v. Oklahoma City, 498 P.2d 399 (Okl., 1972); Boyer v. Ferguson, 389 P.2d 775, 192 Kan. 607 (1964); and Skag-Way Department Stores, Inc. v. City of Omaha, 140 N.W.2d 28, 179 Neb. 707 (1966). The arbitrary distinctions drawn in the statutes discriminate against plaintiff’s business.

The statutes do not prevent unfair competition and promote a day of rest. They reflect the fact that some businesses welcome the opportunity for Sunday sales and others do not. Sellers of real estate have a great deal of Sunday activity and want no legislative restrictions. Many in the business of selling furniture prefer that their competitors be forced to close on Sunday. The . real basis of the law is economic. See “Sunday Blue Laws: A New Hypocrisy”, 54 Notre Dame Lawyer 716. “.. . [S]uch laws are legislated at the behest of businesses that operate unprofitably on Sunday but are compelled by economic realities to do so because their competitors are doing business .... ” 54 Notre Dame Lawyer 722. The result is a statutory scheme which discriminates against some merchants who wish to engage in Sunday sales and denies them equal protection in violation of the state and federal constitutions. U.S.C.A. Const. Amend. 14, § 1; LSA-Const. of 1974, Art. 1, § 3; People v. Abrahams, 40 N.Y.2d 277, 386 N.Y.S.2d 661, 353 N.E.2d 574, 386 N.Y.Supp.2d 661 (1976); Kroger Company v. O’Hara Township, 481 Penn. 101, 392 A.2d 266 (1978); Caldor’s, Inc. v. Bedding Barn, Inc., 417 A.2d 343, 177 Conn. 304 (1979) and City of Ashland v. Heck’s, Inc., 407 S.W.2d 421 (Ky.App., 1966). Compare State v. Target Stores, Inc., 156 N.W.2d 908, 279 Minn. 447 (1968); State v. Hill, 369 P.2d 365, 189 Kan. 403 (1962); State v. Anonymous, 366 A.2d 200, 33 Conn.Supp. 141 (1976); and Skaggs Drug Centers, Inc. v. Ashley, 484 P.2d 723, 26 Utah 2d 38 (1971).

The legislature can validly provide necessary and desirable exceptions to a Sunday Closing Law in one cohesive scheme. However, the irrational classifications and exemptions in the Louisiana statutes do not have any reasonable relationship to the public welfare or the prevention of unfair competition. See Pacesetter Homes, Inc. v. Village of South Holland, 163 N.E.2d 464, 18 Ill.2d 247 (1960); State v. Shop and Save Food Markets, Inc., 415 A.2d 235 (Vt., 1980); County of Spokane v. Valu-Mart, Inc., 419 P.2d 993, 69 Wash.2d 712 (1966); and Nation v. Giant Drug Company, 396 P.2d 431 (Wyo., 1964). The Sunday Closing Law exceeds the legislature’s broad prerogatives and should be declared unconstitutional as applied to plaintiff and businesses similarly situated.

I respectfully dissent.

CALOGERO, Justice,

dissenting.

For the reasons expressed in the dissent by Justice Watson I am of the view that R.S. 51:191 and 192 are unconstitutional insofar as they prohibit Harry’s Hardware and other businesses similarly situated from opening on Sunday and selling the items in their stores not prohibited from sale on Sunday by La.R.S. 51:194.

R.S. 51:194 prohibits the sale of certain merchandise on Sunday and permits the sale of other merchandise. The enactment of such legislation, establishing a uniform day of rest on which business activities are restricted, while perhaps questionable, is not in my view such an unreasonable exercise of the police power as to require a finding of unconstitutionality. There is perhaps a rational basis for the legislation, and the distinctions relative to the merchandise exempt from the Sunday sale prohibition are not clearly arbitrary. However, when La.R.S. 51:191 and 192 are considered along with R.S. 51:194, arbitrary distinctions are created that lack a rational basis and invidiously discriminate against plaintiff and other businesses, which like grocery stores, also sell exempt merchandise.

Under La.R.S. 51:191-192, plaintiff is effectively prohibited from selling any merchandise on Sunday, even the merchandise not prohibited from Sunday sales by La.R.S. 51:194, because those statutes prohibit him from opening his store at all on Sunday. On the other hand, plaintiff’s competitors, like the giant supermarkets which carry and sell on Sunday numerous items which plaintiff also carries, are allowed to open and to sell those items on Sunday simply because they also sell food items and are “grocery stores” rather than “hardware stores”.

I therefore believe that for the Sunday closing laws to be constitutional, any dealer who sells exempt merchandise should be permitted to open, and all stores should be prohibited from selling on Sunday any prohibited merchandise.

There are of course practical problems in enforcing the law and making sure that prohibited merchandise is not sold on Sunday by the open stores. But that problem addresses itself to the Legislature. A reconsideration of the whole “Sunday Blue Law” scheme seems in order.

Nonetheless, as long as stores like the large general purpose supermarkets can stay open on Sunday and sell exempt merchandise, other stores should likewise be permitted to do so. Practical concerns, like the percentage of a retailer’s merchandise which is exempt under the law, or the dollar volume of Sunday business activity, may affect a retailer’s choice to close, or open, on Sunday. R.S. 51:191 and 192, discriminatory as they are, should not compel him to remain closed.

      . A contrary view has been expressed. See, for example, the dissent by Justice Douglas in McGowan, supra; “Sunday Closing Laws in the United States: An Unconstitutional Anachronism,” Vol. XI Suffolk University Law Review 1089; “The Blue Laws Revisited,” 36 Albany Law Review 782; “No Crime on Sunday," Sweet & Maxwell’s Criminal Law Review, August, 1980, at p. 496; “Sunday Observance Legislation in Alberta,” Vol. XII Alberta Law Journal 236.

      . Those who do not are represented here by an Amicus Curiae brief on behalf of The Retail Merchants’ Bureau, a Division of the Chamber New Orleans and the River Region, D. H. Holmes Company, Ltd., Maison Blanche, a Division of City Stores Company, Universal Furniture, Inc., The Radio Center, Inc., Philip Wer-lein, Ltd., Krauss Company, Ltd., Mintz Furniture, Inc., Porter-Stevens, Shel-Bar, Inc., d/b/a Lee’s Fine Shoes, The Clothes Horse, Inc., Workbench, Inc., Veterans Ace Hardware, Inc., Haspel Brothers, Inc., J. C. Penney Company, Inc., Rubenstein Brothers, Inc., Crane, Inc., The Leon Godchaux Clothing Company, Ltd., Eddie’s Ace Hardware, Inc., Bywater Ace Hardware, Inc., New Orleans East Hardware Center, Robbie’s Furniture Villa, Inc., The Lamp Post, Inc., J. F. Johnson’s, Inc., Kelly Ward’s Piano and Organ Shop, Ace Appliances, Inc., Bewley Furniture Company, Inc., Ms. Kay’s Ladies and Juniors Apparel, Sun Furniture City, A & A Bourgeois Store, Honeycutt Furniture, Inc., Bart-Wiell, Inc., Sherwood Magnavox Home Entertainment Center, Inc., Jake’s Department Store, Inc., New York Hardware & Furniture Company, Inc., Weiss-Goldring, Inc., Peyton’s Ladies’ Apparel, Inc., Wath, Inc., d/b/a/ Western Auto Associates Store.

      . Generally, the items exempt from the Sunday sale prohibition under La.R.S. 51:194 are of a type that are more likely to be needed in an emergency, like food and drugs.