author: LEMMON, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Kenneth KAERCHER and Thomas Tighe, and Allied Fidelity Insurance Company.
    No. 66678.
    Supreme Court of Louisiana.
    Sept. 4, 1980.
    James J. O’Connor, Geoffrey H. Longe-necker, Wegmann & Longenecker, New Orleans, for defendants-relators.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., John J. Erny, Jr., Asst. Dist. Atty., for plaintiff-respondent.
   LEMMON, Justice.

This matter comes before the court on an application for certiorari filed by the surety on a bail bond issued shortly after defendants’ arrest. We granted the application to review a judgment forfeiting the bond when the defendants, who had appeared for trial and for sentencing, failed to appear for execution of their sentences.

After their arrest the two defendants were released on June 8, 1977 under bail bonds of $100,000 and $75,000 furnished by Allied Fidelity Insurance Company. Because the amount of each bond exceeded the underwriting authority of Wayne Diaz, Allied’s subagent, under his general power of attorney filed with the Commissioner of Insurance, Allied issued a special power of attorney for each bond. The printed form bonds provided in pertinent part as follows:

“We the undersigned principal and surety, hereby undertake that the principal will appear at all stages of the proceedings in the 17th Judicial District Court to answer that charge or any related charge, and will at all times hold himself amenable to the orders and process of the court, and, if convicted, will appear for pronouncement of the verdict and sentence, and will not leave the state without written permission of the court.”

On January 3, 1978, after the trial court denied their motion to suppress evidence, defendants entered pleas of guilty with a reservation of their right to appeal. The court accepted the guilty pleas and pronounced sentence, defendants having waived the delay in sentencing. The court then granted defendants’ request for release on bail pending appellate review, after Allied’s subagent on the original bond, questioned under oath by the court, asserted that, although he no longer wrote bonds for Allied, he had Allied’s “permission to extend this bond”.

On appeal this court affirmed defendants’ convictions and sentences. When defendants failed to appear on the scheduled date for execution of the sentences, the trial court on the state’s motion rendered judgment forfeiting the bonds. Allied moved to set aside the judgment on the grounds that its liability on the original bond had terminated upon defendants’ convictions and sentences and that the subagent in January, 1978 had no authority to bind Allied on any extension of the original bond that had been issued while he was authorized to act as Allied’s agent.

After a hearing on Allied’s motion the trial court held (1) that a new bond or an extension of the original bond was required upon the convictions and sentences of defendants and (2) that the subagent, with apparent authority to do so for Allied, had extended the original bond in transcribed testimony under oath at the sentencing. Accordingly, the trial court denied Allied’s motion. This court thereafter granted Allied’s application for supervisory writs. 383 So.2d 21.

Bail was primarily designed as a procedure whereby a person, who is merely accused and may never be convicted, may be released from custody with reasonable assurance that he will appear when his appearance is ordered. Prior to trial every person, except one charged with a capital offense, is absolutely entitled to bail. C.Cr.P. art. 312. Such persons are also entitled to bail, either absolutely or within the discretion of the court, after conviction and until final judgment. C.Cr.P. art. 314.

The principal’s obligation to appear when ordered to do so continues until final judgment, and if the principal himself posts bail for his release, that bail continues to assure every required appearance through appearance for execution of sentence. While the Code provides that a surety company or a personal surety may become surety for the release of a person on bail, there are no provisions for the surety’s obligation to terminate prior to the termination of the principal’s obligation.

Moreover, the Code makes no provision for separate undertaking for bail before conviction and bail after conviction. C.Cr.P. 330 prescribes the conditions of the general bail undertaking, with no distinction between pre-conviction and post-conviction bail, as follows:

“The condition of the bail undertaking shall be that the defendant will appear at all stages of the proceedings to answer the charge before the court in which he may be prosecuted, will submit himself to the orders and process of the court, and will not leave the state without written permission of the court. The bail obligation shall run, subject to the provisions of Article 626, in favor of the State of Louisiana, or the city or parish whose ordinance is charged to have been violated, with the proceeds to be disposed of according to law. No error, inaccuracy, or omission in naming the obligee on the bond is a defense to an action thereon.” (Emphasis supplied.)

Official Revision Comment (a) notes that the condition pertaining to appearance to answer the charge is broad enough to cover preliminary proceedings through trial and the condition pertaining to submitting himself to the orders and process of the court “covers the appeal situation if the bond is continued after conviction, pending the appeal”. Thus, the conditions of the bail undertaking mandated by the Code, if included in the bond itself, are sufficient to cover all proceedings through final judgment upon appeal and submission to the trial court for execution of sentence.

The bail bond contract is one between the state on the one hand and the principal and surety on the other. The extent of each party's undertaking depends on the wording of the contract, and the intention of the parties is interpreted according to the law of contracts.

In State v. Johnson, 342 So.2d 863 (La. 1977) the surety contended that its responsibility terminated after conviction and before sentence. The bond in the Johnson case provided:

“Now; if said Irene S. Johnson, principal, shall well and truly appear in person in and before the Nineteenth Judicial District Court of Louisiana, in the Parish of East Baton Rouge, on the notice day of _, 19_, there to answer said charge, and there continue from day to day, and from term to term, and not depart thence without leave of Court, then this bond to be null and void, but otherwise it shall remain in full force and complete effect.” (Emphasis supplied.)

The court, referring to C.Cr.P. art. 330 and Official Revision Comment (a), held that the bond which merely stated that the principal shall appear “to answer the charge” was only broad enough to cover preliminary proceedings and the trial. The court observed that the “additional language ‘will submit himself to the orders and process of the court’ was deemed necessary to cover the appeal”, and since the bond did not contain the quoted statutory language, the court held the parties intended for the bond to terminate upon trial and not to extend to the period between conviction and sentencing.

The bond in the present case does contain the language “will at all times hold himself amenable to the orders and process of the court”. Accordingly, since this bond contains the language (missing in the Johnson case) necessary to cover the appeal period, we hold that Allied’s obligation did not terminate when defendants were convicted and sentenced.

Since we conclude that Allied’s obligation under the original bond continued until defendants failed to appear for execution of sentence, it was unnecessary for the bond to be extended, and we need not discuss Diaz’s apparent authority for the extension.

The judgment denying Allied Fidelity Insurance Company’s motion to set aside the judgment forfeiting the bonds is affirmed.

AFFIRMED.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

I dissent because I believe that Allied’s obligation, under the language of the bond, did terminate at the time defendants were convicted and sentenced.

Following the majority’s approach of looking at the bond instrument as a contract, I do not think the language in the bond was intended to bind Allied for post-sentencing release of the defendant. The language of the bond relied on by the majority for holding the bond applicable to post-sentencing release, “will at all times hold himself amenable to the orders and process of the court,” is directly followed by “and, if convicted, will appear for pronouncement of the verdict and sentence .... ” Looking at the order of the phrases, it seems fairly clear that the “orders and process” contemplated were those which precede verdict and sentencing. Additionally, in a contract situation we must look to the intent of the parties at the time the contract was confected, to determine what was meant by the contract. While not controlling on the matter of intention at the time the bond was confected and posted with the state, I deem it of some consequence that the state saw need to place Allied’s agent on the stand to ask him if he had authority to, and would in fact, extend Allied’s bond pending defendants’ appeal. Considering the bond contract and the applicable law, I do not think it was within the contemplation of the parties at the time the contract was entered into that the bond would cover post-sentence release.

Furthermore, while the majority is correct in stating that State v. Johnson, 342 So.2d 863 (La.1977) held that the language in C.Cr.P. art. 330 was broad enough to cover a release pending appeal, Johnson further provided, “the additional language, ‘will submit himself to the orders and process of the court’ was deemed necessary to cover the appeal situation if bond is continued after conviction.” Johnson did not hold that any bond containing the above language would cover post-conviction release automatically, but only where the bond is continued. In the present case, whether or not the bond was continued was very much in dispute.

Therefore, I believe the issue of whether the agent had the authority to further bind Allied for the defendants’ release pending appeal should be addressed, because unless he did have authority, I do not think the bond covered the post-sentence release of the defendants.


source: Caselaw Access Project

author: WATSON, Justice. MARCUS, Justice DENNIS, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Kenneth KAERCHER, Thomas Tighe, and Allied Fidelity Insurance Company.
    No. 66678.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    Dissenting Opinion Dec. 16, 1980.
    Rehearing Denied Jan. 26, 1981.
    Geoffrey H. Longenecker, Wegmann & Longenecker, New Orleans, for defendants-relators.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., John J. Erny, Jr., Asst. Dist. Atty., for plaintiff-respondent.
   ON REHEARING

WATSON, Justice.

This is a bail bond forfeiture suit. The trial court ordered defendants’ bonds forfeited when they failed to appear for execution of their sentences after appeal. See State v. Kaercher, 362 So.2d 754 (La., 1978). The bonding company, Allied Fidelity Insurance Company, applied for a writ of certiorari, 380 So.2d 1365 (La., 1980), which was granted, 383 So.2d 21 (La., 1980). The original opinion, 392 So.2d 1172, held that the bond language covered the period between sentencing and appeal. A rehearing was granted to reconsider the issue of whether Allied’s obligation terminated at the time of sentencing.

After their arrest, Kenneth Kaercher’s bond was reduced to $75,000 and Thomas Tighe’s to $100,000. Bond was furnished by Allied through its agent, Wayne Diaz. The amount exceeded Diaz’s general authority, which was limited to $25,000. Separate powers of attorney were issued giving Diaz $100,000 authority as to Kaercher and also to Tighe. The powers of attorney, both dated June 7, 1977, were recorded in La-fourche Parish.

After a motion to suppress evidence was overruled, defendants entered a conditional plea of guilty, reserving their rights under State v. Crosby, 338 So.2d 584 (La., 1976), and were each sentenced to ten years at hard labor. The trial court decided to allow them to remain out on bail pending the outcome of their appeals. LSA-C.Cr.P. art. 314; Art. 1, § 18, La.-Const. of 1974. The State did not object because the bond amounts were substantial and defendants had previously honored their court commitments. Although no longer an agent for Allied, Wayne Diaz testified that he had permission to continue these bonds and had called to reaffirm his authority to remain on the bonds pending appeal.

At the hearing on the bond forfeitures, the trial court concluded that Allied was unaware Diaz had undertaken a continuing bond obligation; and that Diaz had no actual authority to bind Allied for the period between sentencing and appeal. The trial court stated that Diaz had “apparent authority”.

The language of the bail bonds is exactly that suggested in part (c) of the Official Revision Comment to LSA-C.Cr.P. art. 330, stating in pertinent part that the principal:

“... will appear at all stages of the proceedings in the 17th Judicial District Court to answer that charge or any related charge, and will at all times hold himself amenable to the orders and process of the court, and, if convicted, will appear for pronouncement of the verdict and the sentence, and will not leave the State without written permission of the court.”

Part (a) of the Official Revision Comment advises that:

“The additional undertaking that he will submit himself to the orders and the process of the court covers the appeal situation if the bond is continued after conviction, pending the appeal. Of course, the amount of the bail may be increased after conviction and pending appeal.”

Dicta in State v. Johnson, 342 So.2d 863 (La., 1977) indicated that the language used here is sufficient to cover a post-conviction period, “... if bond is continued after conviction.” 342 So.2d 865. Compare Resolute Insurance Co. v. State, 450 P.2d 879 (Alaska, 1969), and United States v. Gonware, 415 F.2d 82 (U.S. 9 Cir. 1969). The separate codal provisions in LSA-C.Cr.P. arts. 312 and 314 imply that bail before conviction and after conviction are subject to different rules. However, Louisiana law does not have a specific provision governing appeal bonds, as distinguished from appearance bonds. Compare State v. Moccia, 414 A.2d 1275 (N.H., 1980) and People v. Allied Fidelity Insurance Co., 147 Cal.Rptr. 245, 82 Cal.App.3d 242 (1978).

These contracts of bail were conditional as to the period pending appeal. Until defendants were convicted, their sentences were imposed, the trial court decided to admit defendants to bail pending appeal, and the bail bonds were extended by the surety, the bonding company had no obligation for the post-sentencing period. Compare United States v. Martinez, 613 F.2d 473 (U.S. 3 Cir. 1980). The conditions were implied by the nature of the contracts. LSA-C.C. art. 2026. The bonding company had the option of continuing the bonds or not after sentencing. See United States v. Dinneen, 577 F.2d 919 (U.S. 5 Cir. 1978). Usage supplies an omission in the terms of the contracts. LSA-C.C. art. 1964. Diaz could have legally continued these bonds through the appellate period, if he had had authority from Allied to do so.

Apparent authority of an agent may be inferred from the circumstances surrounding a particular transaction, but a mere statement of authority does not establish an agency relationship. Diaz asserted that Allied had verbally authorized him to continue these bonds to cover the period until final judgment after appeal. However, Allied, after revoking Diaz’s general power of attorney, did nothing which could reasonably be construed by third parties to vest Diaz with apparent authority to bind Allied on bonds for which Diaz was initially given special powers of attorney. The trial court and the State relied on Diaz’s statement of authority, but there is no evidence that Allied made that reliance reasonable. Since Diaz did not have permission to continue these bonds and his authority as agent had been cancelled, his testimony did not bind Allied. Compare Imperial Insurance Company v. State, 539 P.2d 1370 (Okl., 1975).

Accordingly, the original opinion of this court is vacated. The judgment of the trial court is reversed, and it is ordered that Allied Fidelity Insurance Company’s motion to set aside the judgments of bond forfeiture be granted.

REVERSED AND REMANDED.

LEMMON, J., concurs and will assign reasons.

CALOGERO, J., concurs for the reasons expressed earlier in dissent to opinion on original hearing.

MARCUS, J., dissents and assigns reasons.

DENNIS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

Under the facts of this case, I consider that Diaz had the apparent authority to continue the bonds pending appeal. Accordingly, I respectfully dissent.

DENNIS, Justice,

dissenting.

I respectfully dissent. I am still of the opinion that our decision on original hearing is correct.

The language of the bond mirrored the form suggested in comment (c) to Article 330 of the Code of Criminal Procedure. This language is broad and is the best evidence of what the parties intended. Comment (a) to Article 330 interprets identical language in the bond to cover the appeal situation if the bond is continued. I believe the phrase “if the bond is continued” has reference to whether the trial judge, in his discretion, determines that the bond as originally executed continues to provide adequate security to insure the defendant’s subsequent appearances.

Even under the majority’s interpretation that the surety’s consent to extend the bond to the appellate stage is necessary, I disagree that its former agent’s consent is not binding on the surety. The agent had been given special and express authority to execute the bonds initially. The specific powers of attorney were recorded in the public records of the parish and never cancelled. In fact, it appears that the bonding company made no effort whatsoever to surrender the defendants, to notify the court, sheriff, or district attorney that the association with its former agent had ended, or to voice its refusal to continue the bonds. A principal’s failure to correct a false appearance binds him just as surely as affirmative acts; either may clothe the agent with an appearance of authority upon which innocent third parties may reasonably rely. See La.C.C. art. 3029.

The loss should be borne by the party who most occasioned it; in my opinion, that party is the bonding company.


author: MARCUS, Justice. CALOGERO, Justice,

text:
    Roland PARKER v. KROGER’S, INC.
    No. 67652.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    Rehearing Denied March 20, 1981.
    Scofield, Bergstedt, Gerard, Hackett & Mount, Benjamin W. Mount, Lake Charles, for defendant-applicant.
    D. Michael Mooney, Lake Charles, for plaintiff-respondent.
   MARCUS, Justice.

Roland Parker brought this suit against his former employer, The Kroger Company, Inc. (erroneously referred to as Kroger’s, Inc.) for workmen’s compensation benefits for personal injury received by accident arising out of and in the course of his employment. Kroger answered generally denying the allegations of the petition and, further answering, alleged that no compensation should be allowed because the injury was caused by plaintiff’s intoxication at the time of the accident. The trial judge found that defendant failed to meet the burden of proving plaintiff’s intoxication at the time of the injury. Further finding that plaintiff sustained an injury producing temporary total disability, the trial judge rendered judgment in favor of plaintiff ordering defendant to pay $141.00 per week during the period of such disability plus medical expenses and costs. Penalties and attorney’s fees were also awarded in the judgment. Defendant appealed. The court of appeal affirmed. Upon defendant’s application, we granted certiorari to review the correctness of that judgment.

The record reveals that plaintiff had been employed by Kroger to drive 18-wheel trucks for its stores in Lake Charles for eight years and had been employed as a truck driver for approximately seventeen years. Plaintiff testified that on the afternoon of July 3,1978, he left on a “run” and returned to Lake Charles at about six the next morning (July 4th). He then went home and slept until noon. Plaintiff stated that during the next four hours he consumed four to eight 10-ounce cans of beer while barbecuing at his home for friends and relatives. He stated that upon his wife’s insistence, he quit drinking about four in the afternoon because he had to work that evening.

After reporting to work about 7:00 p. m., plaintiff made several telephone calls and did not begin his run to Houston, Texas, until approximately 8:30. He stated that nightfall had approached and the roads were dry. About 8:45, as he was proceeding west at 60-62 mph in a 55 mph zone in an 18-wheel truck on the innermost of the three lanes of Interstate 10, he ran through a barricade set up by the Louisiana Department of Transportation and Development, collided with a department road repair truck, and hit two other state vehicles at the scene of the barricade before coming to a stop some 330 feet from the barricade.

Personnel of the Department of Transportation and Development who witnessed the accident report that a barricade and various warning devices including twelve 18-inch orange cones placed approximately every twenty paces preceding the barricade, three warning signs placed every one-tenth mile preceding the cones, and flashing devices on the trucks parked in the area were set up to indicate road repair was in progress on the inside westbound lane of Interstate 10. There was conflicting testimony as to whether flares were in place at the location. The work was necessitated because of a buckle or blowout in the pavement which had occurred earlier in the afternoon. Plaintiff testified that he did not see the warning devices and thus did not hit his brakes until he saw the barricade. An inspection of the area following the accident revealed that skid marks did not begin until the spot where the barricade was originally positioned.

State Trooper Jerry Lee Bowden, the officer investigating the accident, as well as members of the road repair crew, testified that they smelled alcohol on plaintiff’s breath as they removed him from his truck and placed him on a stretcher. They also observed an empty beer can on the front seat of the truck plaintiff was driving. He was first taken to Calcasieu-Cam-eron Hospital. It was stipulated that an IV solution was administered to plaintiff at that time. He was then transferred to Lake Charles Memorial Hospital where, upon the request of Trooper Bowden, a blood alcohol sample was taken at approximately 10:12 p. m. The results showed that the level of alcohol in the blood was approximately 0.104 percent. An expert witness, Dr. Avery Cook, testified that 0.104 percent would have some effect on plaintiff’s senses:

“[I]t’s a drug that affects most every part of the body, but particularly the nervous system; and it is a sedative. It decreases function in the nerve cells, the transmission of nerve impulses.

He further stated that any level of alcohol has a depressant effect and affects an individual’s reaction. Dr. Cook also expressed an opinion that the amount of alcohol in the blood stream will increase for a short period after intake (about thirty or forty-five minutes) and thereafter decrease as time elapses. He further stated that an IV solution would decrease a person’s blood alcohol level.

Exactly what caused plaintiff not to see the warning devices and the barricade prior to impact is a matter of dispute. In a detailed taped statement given to the insurance adjuster for Kroger at Lake Charles Memorial Hospital on the day following the accident, plaintiff stated that he did not see the illuminated barricades until he hit them. Upon being questioned as to whether he did not see them because he had dozed off or fallen asleep, plaintiff replied: “I’m afraid that’s exactly what had happened.” The adjuster then asked: “You sure?” and plaintiff answered: “Yes sir.” However, at trial, plaintiff did not recall telling the investigator that he fell asleep while driving but instead testified that he had momentarily taken his eyes off the road to replace the microphone of his citizens band radio and when he again focused upon the road, it was too late to avoid the barricade.

The sole issue presented for our determination is whether Kroger met the burden of proving that plaintiff’s injury was caused by his intoxication at the time of the injury. If so, Kroger would be exempt from and relieved of paying compensation.

La.R.S. 23:1031 provides in pertinent part:

If an employee not otherwise eliminated from the benefits of this Chapter, receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.

(Emphasis added.) La.R.S. 23:1081 further provides that:

No compensation shall be allowed for an injury caused ... (2) by the injured employee’s intoxication at the time of the injury....
In determining whether or not an employer shall be exempt from and relieved of paying compensation because of injury sustained by an employee for the causes and reasons set forth in this Section, the burden of proof shall be upon the employer.

Our review of the record convinces us that Kroger clearly proved that plaintiff’s injury was caused by his intoxication at the time of injury. Plaintiff admitted that he drank four to eight beers at a barbecue during the afternoon preceding the accident and only quit drinking at the insistence of his wife that he had to work that evening. There was evidence of alcohol on plaintiff’s breath at the time of the accident. An empty beer can was found on the front seat of his truck. A blood alcohol sample taken from plaintiff about an hour and a half after the accident and after he had been administered an IV solution revealed a blood alcohol content of 0.104 percent. Under these circumstances, we conclude that plaintiff was intoxicated at the time of his injury.

Moreover, we have no difficulty in further concluding that plaintiff’s intoxication caused him to doze off or fall asleep at the wheel. We reach this conclusion based on his own admission on the day following the accident despite his testimony to the contrary at trial, the medical expert testimony that alcohol has a sedative effect, the manner in which the accident occurred, and the fact that the accident happened only a short while after he picked up his rig.

Under these circumstances, we find that the courts below were clearly wrong in determining that defendant failed to meet the burden of proving that plaintiff’s injury was caused by his intoxication at the time of the injury. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). To the contrary, we consider that defendant met its burden and should therefore be exempt from and relieved of paying compensation to plaintiff in this case. Accordingly, we must reverse the judgment of the court of appeal and dismiss plaintiff’s suit.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and judgment is rendered herein in favor of defendant, The Kroger Company, Inc., and against plaintiff, Roland Parker, dismissing plaintiff’s suit at his cost.

CALOGERO, J., dissents and assigns reasons.

DENNIS, J., dissents for reasons assigned by CALOGERO, J., and the Court of Appeal.

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

CALOGERO, Justice,

dissenting.

I dissent for the reasons given by the Court of Appeal.

In my opinion, the defendants have neither carried their statutory burden of proving plaintiff’s “intoxication” at the time of the accident, nor have they shown the requisite causation link between plaintiff’s minimal blood alcohol and the fact of the collision.

      . 382 So.2d 458 (La.App.3d Cir. 1980).

      . 385 So.2d 784 (La.1980).

      . La.R.S. 32:662 creates a presumption that a person was under the influence of alcoholic beverages if at that time 0.10 percent or more by weight of alcohol was in his blood. Although this presumption is inapplicable in civil actions, it in no way prevents a civil litigant from introducing into evidence a person’s blood alcohol content and testimony of competent expert witnesses to interpret the effects of such a level on a person’s ability to operate a motor vehicle. Champagne v. McDonald, 355 So.2d 1335 (La.App.3d Cir. 1978); Brown v. Collins, 223 So.2d 453 (La.App.3d Cir. 1969).


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

text:
    STATE of Louisiana v. Jeffrey Paul WALKER.
    No. 80-KA-1484.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    Rehearing Denied March 20, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Eddie Knoll, Dist. Atty., Jeanette Theriot Knoll, Asst. Dist. Atty., for plaintiff-appellee.
    J. Michael Small, Alexandria, for defendant-appellant.
   MARCUS, Justice.

Jeffrey Paul Walker was charged by bill of information with aggravated criminal damage to property in violation of La.R.S. 14:55. After a bench trial, defendant was found guilty as charged and sentenced to serve eighteen months in the parish jail. The judge suspended execution of the sentence and placed defendant on probation for a period of three years. The judge imposed as specific conditions of probation that defendant pay a fine of $1,500 plus costs and make restitution to the owner of the damaged property in the amount of $500. On appeal, defendant relies on nine assignments of error for reversal of his conviction and sentence.

Defendant and Joy Gail Mayeux Normand were married on May 4, 1978, but separated eight months later after a troubled marriage. Ms. Normand returned with her two minor children to live at the home of her parents, Mr. and Mrs. Daniel Mayeux. On December 29, 1979, Ms. Normand and four friends went to a lounge in Marksville to celebrate her recent engagement to Mr. Normand. While at the lounge, she saw defendant there with a friend, Charles Bernard. Ms. Normand left the lounge and was home by 12:45 a. m. At approximately 2:45 a. m., she was awakened by a shotgun blast hitting her bedroom wall, some of which went through the window into the bedroom. On the following day, defendant was arrested and charged with the instant crime.

ASSIGNMENTS OF ERROR NOS. 1 AND 4

Defendant contends the trial judge erred in overruling his objections to two questions posed by the state to Joy Gail Mayeux Normand on direct examination.

During the direct examination of Ms. Normand, defendant’s ex-wife, the state asked: “Did you have any problems with Mr. Walker during your marriage?” Defendant objected on the ground that the question was irrelevant. The trial judge overruled the objection. Subsequently, the witness was asked whether defendant had ever lost his temper in her presence. Defendant’s objection on the grounds that the question was irrelevant and leading was overruled by the trial judge.

Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. La. R.S. 15:441. The trial judge’s ruling as to the relevancy of evidence will not be disturbed absent clear abuse of discretion. State v. Echols, 376 So.2d 1244 (La.1979). In the instant case, the state sought to elicit testimony from the witness as to defendant’s motive for committing the crime charged. Clearly, evidence that defendant and his ex-wife, the person to whom defendant’s alleged criminal conduct was directed, had had a poor marital relationship and that defendant had a bad temper was relevant as tending to show the commission of the offense and the intent. Nor can it be said that the question posed to the witness as to defendant’s temper was leading, as it did not suggest to the witness the answer she was to deliver, but merely sought a yes or no response. La.R.S. 15:277.

Assignments of Error Nos. 1 and 4 are without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

Defendant contends the trial judge erred in denying his motion for a mistrial based on the prosecutrix’s reference to other crimes and the state’s failure to give pretrial notice of its intention to introduce such evidence.

During direct examination of Ms. Normand, the prosecutrix questioned the witness as follows:

Q. During your marriage uh — let me just be more specific then — during your marriage with Mr. Walker, in the eight months that you lived with him, did he ever administer uh beatings upon you?
A. Yes, Mam.

Defendant objected and moved for a mistrial arguing that the inquiry called for evidence of other crimes alleged to have been committed by defendant as to which evidence was not admissible and that, if the evidence was admissible under an exception, then defendant was entitled to notice of the state’s intention to introduce such evidence under State v. Prieur, 277 So.2d 126 (La.1973).

At the outset, we point out that the evidence in question, beating one’s spouse, is evidence of criminal conduct. La.R.S. 14:33. Hence, evidence of the alleged beatings of the witness by defendant would constitute evidence of other crimes.

Evidence of other crimes related to the offense with which a defendant is charged is inadmissible except under special exceptions. Aside from related offenses admissible as part of the res gestae and convictions admissible for impeachment purposes, Louisiana’s statutes provide for three exceptions — acts relevant to show intent, knowledge or system. La.R.S. 15:445, 446. Louisiana courts have recognized certain other exceptions, including an exception for the purpose of establishing motive. State v. Sutfield, 354 So.2d 1334 (La.1978); State v. Dowdy, 217 La. 773, 47 So.2d 496 (1950).

This court has repeatedly held that before evidence of criminal conduct may be admitted it must be determined that: (1) there is clear and convincing evidence of the commission of the other crimes and the defendant’s connection therewith, State v. Prieur, supra; (2) the other crimes evidence is substantially relevant for some other purpose than to show a probability that the defendant committed the crime on trial because he is a man of criminal character, State v. Frederick, 340 So.2d 1353 (La.1976); (3) the other crimes evidence does tend to prove a material fact genuinely at issue, State v. Ledet, 345 So.2d 474 (La.1977); and (4) the probative value of the extraneous crimes evidence outweighs its prejudicial effect, State v. Jackson, 352 So.2d 195 (La. 1977); State v. Prieur, supra.

In the instant case, it is clear that these four tests for admissibility of other crimes evidence are met. The testimony of Ms. Normand, the victim of the alleged beatings administered by defendant, constitutes clear and convincing evidence that defendant committed the criminal acts. The evidence is substantially relevant for the purpose of showing defendant’s motive for committing the crime charged, that is, because of the troubled marriage of the parties and its subsequent dissolution, defendant harbored ill will towards Ms. Normand which, upon defendant seeing his ex-wife celebrating her engagement to another man, led to his commission of the crime charged. Also, the evidence tends to prove a material fact at issue, the nature of the prior relationship between the parties in regard to defendant’s motive for committing the crime. Finally, we consider that the probative value of this evidence outweighs its prejudicial effect.

An additional safeguard established by Prieur is that the state furnish notice to defendant prior to trial of its intention to introduce evidence of other criminal conduct. Having concluded in the instant case that the evidence of other crimes was otherwise admissible, the sole remaining issue is whether the state’s failure to provide prior notice constitutes reversible error.

Under the facts of this case, the possibility of prejudice to defendant resulting from the lack of notice is remote. Because the proceeding was a bench trial, the possibility for prejudicial effect on the trial judge was far less than upon a jury. Also, the possibility of prejudice was lessened by the fact that the prior criminal conduct was directed against the same person as that in the instant case. Moreover, Ms. Normand’s testimony regarding defendant’s prior misconduct was subject to his cross-examination at trial. Hence, we conclude that the failure to give notice did not affect substantial rights of the accused and thus does not constitute reversible error. La.Code Crim.P. art. 921.

Assignments of Error Nos. 2 and 3 are without merit.

ASSIGNMENTS OF ERROR NOS. 5, 6 AND 7

Defendant contends the trial judge erred in accepting Patrick A. Lane as an expert in the field of firearms identification and in allowing him to express opinions in testimony and a written report prepared by him and introduced in evidence. He argues that Mr. Lane had insufficient qualifications in this field.

The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert, his competency so to testify must have been established to the satisfaction of the court. La.R.S. 15:466. We have consistently held that the competence of an expert witness is a question of fact to be determined within the sound discretion of the trial judge. His rulings on the qualifications of expert witnesses will not be disturbed in the absence of manifest error. State v. Drew, 360 So.2d 500 (La. 1978); State v. Lewis, 353 So.2d 703 (La. 1977). The record discloses that Mr. Lane held a bachelor of science degree with a major in zoology and a minor in chemistry. He had been employed as a forensic scientist with the Louisiana State Police Crime Lab for the prior year and a half where he had been performing firearms examinations under the direct supervision of the supervisor of the physical evidence section who was also a firearms examiner. He had attended two seminars conducted by the FBI and had conducted over fifty tests in firearms identification. He had been accepted by a court as an expert in firearms identification on a previous occasion. We cannot, therefore, find that the trial judge abused his discretion in overruling defendant’s objection to Mr. Lane’s qualifications as an expert nor in allowing him to give opinions as an expert in firearms identification.

Assignments of Error Nos. 5, 6 and 7 are without merit.

ASSIGNMENT OF ERROR NO. 8

Defendant contends the trial judge erred in allowing the state to elicit testimony from Patrick A. Lane as to an examination he made on the day of trial. Defendant argues that he had no prior notice as to this examination or test as requested in his pretrial motion for discovery; therefore, the results of the examination were inadmissible.

Prior to trial, defendant filed a motion for discovery seeking, inter alia, the results or reports of any examinations or tests made in connection with the case in possession of the district attorney and intended for use at trial pursuant to La.Code Crim.P. art. 719. At the noon recess on the day of trial, state witness Patrick A. Lane, a firearms identification expert, examined a shotgun shell wadding found at the scene of the crime and compared it with that taken from an unspent reference shell. He later testified that the wadding was that from a Remington-Peters type 12 gauge shotgun shell, the same type as that of a spent shell casing found near the scene of the crime and determined to have been fired from a shotgun taken from the truck in which defendant had been riding on the night of the crime. Defendant objected to this testimony on the ground that he did not have sufficient notice of the results of the examination.

La.Code Crim.P. art. 729.3 provides:

If, subsequent to compliance with an order issued pursuant to this Chapter and prior to or during trial, a party discovers additional evidence or decides to use additional evidence and such evidence is or may be, subject to discovery or inspection under the order issued, he shall promptly notify the other party and the court of the existence of the additional evidence, so that the court may modify its previous order or allow the other party to make an appropriate motion for additional discovery or inspection.

It is clear from the record that the state immediately informed defense counsel of the examination and the results upon arriving back at the courthouse after the noon recess. During argument on this point, the state pointed out to the court that prior to trial it had informed defendant of its possession of the wadding and further indicated that it had no objection to defendant making any type of independent examination of the evidence. The prosecutrix further stated that defendant had failed to do so. The state also indicated that it would have no objection to defendant having the wadding examined by his expert at that time. Defendant did not request a recess for this purpose.

Under the circumstances, we consider the state satisfied its continuing duty to disclose under art. 729.3. Moreover, defendant has no cause to complain because of his failure to request a recess.

Assignment of Error No. 8 is without merit.

ASSIGNMENT OF ERROR NO. 9

Defendant contends the trial judge erred in denying his motion for a judgment of acquittal made after the close of the state’s evidence. He argues that the evidence was insufficient to sustain his conviction.

The record discloses that defendant and Joy Gail Mayeux Normand had been legally separated after a troubled eight-month marriage. Ms. Normand returned with her two children to her parents’ home, reoccupying her former bedroom located in the front of the house facing the street. Defendant was aware of this fact. On December 29, 1979, Ms. Normand and four friends went to a lounge in Marksville to celebrate her recent engagement. While there, she encountered defendant and his friend, Charles Bernard. Later that night, a shotgun blast was fired through Ms. Normand’s bedroom window. Defendant and Charles Bernard were questioned the next day by Marksville police officers and both gave voluntary statements that they had been together in Bernard’s pickup truck the previous night. Bernard allowed the police to inspect the 12 gauge shotgun which he kept in his truck. Police examination determined that the shotgun had been recently fired. Subsequently, a spent Remington-Peters 12 gauge # 1 buckshot shell was found near the scene of the shooting and lab tests determined that the shell had been fired from Bernard’s shotgun. Also, plastic wadding from a shotgun shell found at the scene of the shooting was determined to be that from a Remington-Peters 12 gauge shell.

In order to convict on the basis of circumstantial evidence, assuming every fact to be proved that the evidence tends to prove, the evidence must exclude every reasonable hypothesis of innocence. La.R.S. 15:438; State v. Williams, 310 So.2d 513 (La.1975). The record indicates that the trial judge specifically recognized this standard in the charges he read into the record. We find that the evidence was clearly sufficient to support the trial judge’s finding that every reasonable hypothesis of innocence was excluded. Despite the circumstantial nature of the evidence, a review of the record in the light most favorable to the prosecution convinces us that a rational trier of fact could readily have found defendant guilty beyond a reasonable doubt of aggravated criminal damage to property. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Hence, the trial judge did not err in denying defendant’s motion for a judgment of acquittal based on insufficiency of the evidence.

Assignment of Error No. 9 is without merit.

DECREE

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

LEMMON, J., concurs and will assign reasons.

DIXON, C. J., dissents.

CALOGERO, J., dissents and assigns reasons.

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

LEMMON, Justice,

concurring.

The evidence of “beatings” (although only a brief reference) was inadmissible because its prejudicial impact outweighed its probative value. See State v. Moore, 278 So.2d 781 (La.1972); State v. Waddles, 336 So.2d 810 (La.1976). The marginal relevance of such evidence to prove motive is substantially outweighed by its tendency to prove only that the defendant is of bad character. See State v. Sutfield, 354 So.2d 1334 (La.1978). Under such circumstances evidence of other crimes is inadmissible.

Had this case been tried before a jury, instead of a judge, or had the state delved further into the matter of the “beatings” beyond the solitary reference, I would unhesitatingly vote to reverse. See C.Cr.P. art. 770, which applies by its terms only to jury trials. However, admission of the wife’s comment concerning the “beatings”, when considered in light of the other properly admitted evidence of their prior difficulties and of defendant’s violent temper, did not substantially affect defendant’s rights and thus did not constitute reversible error.

I therefore concur in the result.

CALOGERO, Justice,

dissenting.

I dissent from the majority opinion because I believe that the admission of the other crimes evidence, that defendant beat his wife, under the facts and circumstances of this case, was error and defendant’s conviction should be reversed.

In State v. Prieur, 277 So.2d 126 (La. 1973), this Court considered the constitutional problems associated with the admission of evidence of other criminal conduct by the defendant and held that where such evidence is sought to be admitted, defendant must be given pre-trial notice that such evidence will be introduced so that he may have an opportunity to defend against it. Further, the trial judge must make a determination as to whether the evidence complies with the tests established by this Court for the admissibility of other crimes evidence.

In the present case, the pre-trial notice required by Prieur was not given to defendant, and defendant did not have an opportunity to present evidence rebutting the admissibility of the evidence of his past criminal conduct. As stated in the majority opinion, the trial judge must make certain determinations before other crimes evidence is admitted. The defendant must have pre-trial notice of the state’s intent to introduce such evidence, an opportunity to prepare a defense against its admissibility, and a chance to present that defense to the trial judge prior to the trial judge’s determination on whether the evidence meets the tests for admissibility. The only exceptions to this notice requirement are offenses which form part of the res gestae (because defendant has notice of the other crimes by his notice of the charged offense since they must be so closely related) and prior convictions used to impeach the defendant (statutorily permitted under R.S. 15:495). The evidence here does not fall within either of these two exceptions to the notice requirement, and it has not been argued otherwise. Therefore, because defendant was erroneously not given the required notice of the state’s intent to introduce the evidence of other criminal conduct, and because defendant did not have an opportunity to defend against its admission, the conviction should be reversed.

Had defendant been given the opportunity to present a defense to the admissibility of such evidence, he may have been able to call into question the commission of the prior criminal act. He certainly would have been able to show that the probative value of the evidence was far outweighed by its prejudicial effect.

Defendant was on trial for aggravated criminal damage to property. The state introduced the evidence that defendant used to beat his wife during their marriage as being probative of defendant’s guilt of this crime. However, in view of the fact that those beatings took place almost a year prior to the incident in question, and that the victim had not had any trouble with the defendant from that time and had not even seen or spoken to the defendant in at least six months prior to the night of the incident, the probative value of this evidence is tenuous at best. On the other hand, presenting the defendant as a wife beater before the judge was highly prejudicial to defendant. Therefore, it is clear that the prejudicial effect of the evidence outweighed any probative value it may have had and the evidence should have been excluded for that reason as well.

Furthermore, there is a real question as to whether the evidence that defendant struck his wife during their marriage, almost a year prior to the charged crime, is substantially relevant to prove defendant’s motive for committing the charged offense at all.

Motive has been defined as the reason the accused has for committing the charged offense. It is the cause or reason that moves the will and induces action for a definite result. State v. Abercrombie, 375 So.2d 1170 (La.1979). In attempting to prove that defendant was guilty, the state introduced the evidence of the past criminal conduct to establish the defendant’s motive. The purpose for showing defendant had a motive is to bolster the proof that defendant was the perpetrator of the crime by showing that he had a reason for committing the crime. The fact that defendant may have beaten his wife during their marriage a year earlier, where there had been no trouble with the defendant in the interim period, does not tend to establish why he may have committed the charged offense. (To the contrary, the evidence more logically would provide a motive for the wife’s perpetration of an offense against her husband, because he beat her during the marriage.) This evidence does not tend to establish what induced defendant’s behavior but only tends to prove that defendant is prone to violence, or a man of unsavory character and thus was more likely to have committed the crime in question. This is the very kind of evidence that must be excluded to insure defendant’s right to be presumed innocent until proven guilty beyond a reasonable doubt. State v. Showers, 359 So.2d 104 (La.1978); State v. Prieur, supra.

Therefore, I dissent from the majority opinion because I believe the state’s failure to give the required pre-trial notice of its intent to introduce the other crimes evidence constitutes reversible error and further because I believe the trial court erred in admitting the evidence notwithstanding the lack of notice.


text:
    Ralph T. THORNHILL, Individually and as Administrator of the Estate of his Minor Son, Allen Arthur Thornhill v. BLACK, SIVALLS & BRYSON, INC. et al.
    No. 80-C-1528.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    Rehearing Denied March 20, 1981.
    Emile C. Rolfs, III, Stephen H. Vogt, Durrett, Hardin, Hunter, Dameron & Frit-chie, Baton Rouge, for plaintiff-applicant.

      Owen, Richardson, Taylor, Mathews & Atkinson, Ben Louis Day, John B. Knight, Taylor, Porter, Brooks & Phillips, A. Michael Dufilho, Baton Rouge, McGlinchey, Stafford & Mintz, J. Michael Johnson, New Orleans, Voelker, Ragland, Brackin & Cri-gler, William B. Ragland, Jr., Lake Providence, Brumfield & Brumfield, William P. Brumfield, Baton Rouge, for defendants-respondents.
   MARCUS, Justice.

Ralph T. Thornhill, individually and as administrator of the estate of his minor son, Allen Arthur Thornhill, instituted this action against Screw Conveyor Corporation for damages for personal injuries sustained by Allen Thornhill when his leg became caught in a screw auger manufactured by Screw Conveyor. At the time of his injury, Thornhill was working inside a silo owned by Clayton Grain Elevator, Inc. The silo contained a screw auger recessed in its floor. A solid metal cover prevented exposure to the rotating auger, except for three access openings which allowed stored grain and other materials to flow into the trough and effect transportation. While Thornhill was removing residual material from the wall of the silo, he inadvertently stepped into the rotating auger through an access opening causing severe damage to his leg which necessitated its amputation.

Screw Conveyor moved for a summary judgment on the ground that the pleadings, sworn affidavit and depositions of Otis Clyde Raley, the original owner and builder of the grain elevator, showed that there was no genuine issue as to material fact. In denying the summary judgment, the trial judge concluded that there was a question of what warnings Screw Conveyor should have provided to the purchaser of its screw auger. Subsequently, Screw Convey- or filed another motion for summary judgment, this one on the ground that the pleadings and deposition of Allen Thornhill showed that there was no genuine issue as to material fact. The trial judge granted summary judgment, stating in his reasons for judgment that Screw Conveyor had merely sold component parts to the then owner of the grain elevator and had not participated in the design, installation, construction or maintenance of the silo at any time in its history. Moreover, the modification to the auger cover which allowed the contents of the bin to enter were not made by Screw Conveyor. In addition, he found that the deposition of Allen Thornhill made it clear that he was aware of the danger of the auger and that he had been warned to be on guard of this danger. The trial judge noted that there is no duty to warn of a danger when the danger is obvious.

From a judgment dismissing Screw Conveyor as a defendant in the lawsuit, plaintiff appealed. The court of appeal, finding no genuine issue as to material fact and that Screw Conveyor was entitled to judgment as a matter of law, affirmed the granting of the summary judgment. Upon application of plaintiff, we granted certio-rari to review the correctness of that judgment.

The sole issue presented for our review is whether, based on the pleadings, affidavits, answers to interrogatories, depositions and other evidence filed by the parties pursuant to Screw Conveyor’s motion for summary judgment, a genuine issue of fact was presented and whether mover is entitled to a judgment as a matter of law.

In its answers to interrogatories, Screw Conveyor stated that its only communication with the purchaser was the acceptance of a telephone order for sixty feet of trough, screw auger and cover and an invoice prepared at the time of shipment. When the materials were supplied, the only document which accompanied the materials was a copy of the invoice outlining the order. Screw Conveyor further stated that it made no recommendations regarding the placement of the access openings because it was neither consulted in the placement of the openings nor advised that such openings would be cut in the cover. No employees or representatives of Screw Conveyor were ever present at the grain elevator. These facts are corroborated by the deposition of Otis Clyde Raley. Raley stated that his brother placed the order with Screw Conveyor and that no employees or representatives of the company ever came to the grain elevator. In fact, Raley sent a truck to Screw Conveyor to pick up the parts of the conveyor system which were used in the construction of the two silos. The trough, which contained the screw auger and was covered by a metal cover, was recessed into the floor of the silo. To allow grain to fall into the auger, Raley had three openings made in the cover. Gate covers were constructed so that these access openings could be covered up. Raley did not recall receiving any instructions or plans with the parts or obtaining any advice from Screw Conveyor on how to set up a conveyor system. Plaintiff entered nothing into the record to contradict these facts.

From the deposition of Allen Thornhill, the following undisputed facts are disclosed. On the morning of Friday, November 12, 1976, Allen Thornhill, then sixteen years old, was working at the grain elevator. He was instructed by his supervisor to enter a silo and hit the sides of the silo with a shovel to cause soybeans and other matter to fall off the wall. Thereafter, the refuse would be placed in the access openings of the conveyor system for transportation to the outside. His supervisor informed him that the screw auger was operating and warned him to be careful not to fall into the access openings. Upon entering the silo, Thornhill saw the screw auger turning through the uncovered openings. He knew that he would be injured if he got his leg caught in the hole where the auger was turning. After working in the silo for about fifteen minutes, Thornhill inadvertently stepped back into one of the access openings. The auger caught his boot and pulled his leg into the opening causing severe injury to his leg which necessitated its amputation.

A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i. e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect. Weber v. Fidelity & Casualty Insurance Co. of New York, 259 La. 599, 250 So.2d 754 (1971). In the instant case, plaintiff does not allege that there was a defect in the design, composition or manufacture of the auger conveyor system. Rather, plaintiffs argument is that the failure of Screw Conveyor to provide instructions along with the sale of the parts on how the access openings should be cut in the cover made the product unreasonably dangerous to normal use.

It is well settled that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966; Employers' Surplus Line Ins. Co. v. City of Baton Rouge, 362 So.2d 561 (La. 1978); Andrew Development Corp. v. West Esplanade Corp., 347 So.2d 210 (La.1977); Morgan v. Matlack, Inc., 342 So.2d 167 (La. 1977); Stallings v. W. H. Kennedy & Son, Inc., 332 So.2d 787 (La.1976). Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, supra; Andrew Development Corp. v. West Esplanade Corp., supra; Morgan v. Matlack, Inc., supra; Cates v. Beauregard Electric Cooperative, Inc., 328 So. 2d 367 (La.1976). The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of summary judgment and in favor of a trial on the merits to resolve disputed facts. Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, supra; Andrew Development Corp. v. West Esplanade Corp., supra; Morgan v. Matlack, Inc., supra; Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).

It is undisputed that Screw Convey- or merely sold sixty feet of trough, auger and cover requested by a telephone order and had no part in the design and installation of the auger conveyor system. It was not consulted in the placement of the access openings or even advised that such openings would be cut in the cover. Defendant was unaware of the parts intended use when it filled the order for the trough, auger and cover. Furthermore, there is no indication that defendant should have been aware that the purchaser of such parts would necessarily have to cut access openings in the cover for its use. Under these circumstances, it would have been unreasonable to require Screw Conveyor to furnish instructions on how or where access openings should be cut in the cover.

Since the evidence presented on the motion for summary judgment presents no genuine issue of material fact and because reasonable minds must inevitably conclude that Screw Conveyor would be entitled to a judgment on these facts as a matter of law, the motion for summary judgment was properly granted.

DECREE

For the reasons assigned, the judgment of the court of appeal is affirmed.

LEMMON, J., concurs.

WATSON, J., dissents.

CALOGERO, J., dissents and assigns reasons.

DENNIS, J., dissents being of the opinion there was a material fact at issue.

CALOGERO, Justice,

dissenting.

Summary judgment should not be granted unless there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. I believe there is a genuine issue as to material fact, not countered by affidavit or otherwise, in plaintiff’s contention that defendant Screw Conveyor failed in its duty to provide instructions, along with the sale of the parts, as to how the access openings should be cut in the cover of the screw auger. Defendant need not have been consulted regarding the placement of the openings, nor advised that such openings would be placed in the cover, for it was evident that such would have to be done in order for the screw auger to have any utility whatever. Furthermore, the majority rests its opinion, in part at least, on an implied finding of contributory negligence (“[Thornhill’s] supervisor informed him that the screw auger was operating. .. He knew that he would be injured if he got his leg caught in the hole where the auger was turning.”), a finding which in my view is not appropriate by way of summary judgment.

For these reasons, I respectfully dissent.

      . Plaintiff also named twelve other party defendants; however, none of these parties are involved in this appeal.

      . 385 So.2d 336 (La.App. 1st Cir. 1980).

      . 393 So.2d 724 (La.1980).


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

text:
    STATE of Louisiana v. Gregg A. AULT.
    No. 67766.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    Rehearing Denied March 20, 1981.

      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.
    -J. Michael Small, Alexandria, for defendant-appellant.
   BLANCHE, Justice.

Defendant was charged with possession with intent to distribute a Schedule II Controlled Dangerous Substance (methamphetamine) in violation of R.S. 40:967. After the trial judge overruled his motion to suppress the drug seized from his vehicle and any other evidence resulting from that seizure, defendant pleaded guilty to the offense, reserving his right to appeal the ruling on his motion to suppress. Defendant has appealed from that ruling and, for the following reasons, we affirm.

The evidence adduced at the hearing of the motion to suppress shows that on December 3, 1979 at approximately 9:00 p. m. Deputies Burr and Barrett of the Rapides Parish Sheriff’s Department were at a service station located across from MacArthur Drive in Alexandria, Louisiana refueling Burr’s sheriff’s department vehicle. They observed a dark colored Thunderbird automobile exit off MacArthur Drive onto the service road “at an unsafe speed” and watched as the auto “continued at high speed down the service road.” The tires of that vehicle made a sound as it turned onto the service road, and Deputy Barrett testified he believed that the tire noise resulted from the erratic nature of the operation of the Thunderbird. One of the two deputies commented that the car was being operated in a reckless manner and the deputies decided to attempt to stop the vehicle to “determine what the problem was.”

The deputies were travelling in separate cars and proceeded in the direction of the Thunderbird. They followed that vehicle as it turned onto Jackson Extension, then lost sight of it for two to three minutes. The auto was next sighted returning on Jackson Extension and was proceeding thereon in the opposite direction from which it had gone. It passed the sheriff’s deputies on Jackson Extension proceeding “still at a high rate of speed” as it travelled back toward MacArthur Drive. Deputy Burr turned and followed the Thunderbird and stopped it in the parking lot of a restaurant. Deputy Barrett also drove into the lot after Burr had accomplished the stop. The driver of the Thunderbird is stipulated to be defendant, Gregg Ault.

The deputies obtained defendant’s driver’s license from him and then radioed the sheriff’s department to determine if there were any outstanding warrants for Gregg Ault. They were apprised of none. They then asked defendant why he had been driving in the manner he had been and Ault responded that someone had been chasing him. When asked why he was being chased, he stated he had nothing in the vehicle they might want except for money. At one point in this conversation, defendant pointed out several autos on MacArthur Drive, indicating that these were the persons who had been chasing him. There was mud and grass hanging from beneath the back bumper which, according to defendant, was caused by his running off of the road to avoid the people who were pursuing him.

Deputy Barrett then asked if Ault had anything in his trunk the pursuers might want, but defendant indicated he only had tools for his job and clothing stored there. At this point, both deputies asked if he would mind if they looked in the trunk. Defendant opened the trunk with his keys, reached into the trunk and appeared to move something around. Deputy Burr asked defendant what was in a bag in the trunk. Deputy Barrett moved closer to the trunk and saw the bag, to which Burr had referred, i. e. a plastic bag the size of a sandwich bag containing an off-white substance located on the spare tire in the trunk. Deputy Barrett then stated, “Well, what do we have here”, and defendant turned to him and responded “they call it crystal”. Barrett, who was a narcotics officer and who had been trained in the area of narcotics, thought the substance looked like contraband, either heroin, cocaine or “crystal”, and he understood the term “crystal” to refer to the drug methamphetamine hydrochloride.

Deputy Barrett placed defendant under arrest, advised him of his rights, searched him and handcuffed him. The officer radioed in to request that a district attorney be notified and that a supervisor contact him and, later, radioed for a wrecker. He next obtained a consent to search form from his automobile and read it to defendant. Defendant Ault also read it before he signed the form, and the suspected contraband was then seized after defendant was taken away. Defendant signed the consent form approximately 20 minutes after he had opened his trunk for the officers. Up to that time, the suspected contraband had not been tampered with. Deputy Barrett testified that he had no knowledge of any ticket issued to defendant for any traffic offense arising out of the above incident.

The above evidence was adduced from the testimony of Deputy Barrett, who was the only witness at the hearing on the motion to suppress. The state and the defense stipulated that the testimony of Deputy Burr would have been essentially similar to that of Deputy Barrett.

Defendant contends that the trial judge erred in overruling the motion to suppress because the deputies were not justified in stopping defendant and any consent to search subsequently obtained from defendant was tainted by the initial illegality. We disagree with these contentions. The officers were justified in making an investigatory stop of defendant as authorized by the Code of Criminal Procedure art. 215.1. That article provides in part that:

“A law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or misdemeanor and may demand of him his name, address and an explanation of his actions.”

According to State v. Edsall, 385 So.2d 207 (La.1980), “reasonable cause for an investigatory stop is something less than probable cause. Nevertheless, it requires the detaining officer to have articulable knowledge of particular facts sufficient reasonably to suspect the detained person of criminal activity.”

In State v. Lukefahr, 363 So.2d 661 (La. 1978), this Court held that where a police officer observed a vehicle cross the center line and force another motorist off of the travelled portion of the road, the officer was justified in stopping him for a traffic violation. We hold that the deputies in the instant case also had articulable knowledge of particular facts sufficient reasonably to suspect defendant of criminal activity in that he was operating his vehicle in a reckless and careless manner in violation of R.S. 14:99. Prior to stopping defendant Ault, the officers observed him exiting from a highway onto a service road at an unsafe speed, heard his tires creating a noise Officer Barrett testified he presumed resulted from erratic driving, watched as defendant continued down the road at a high speed, followed him and encountered Ault still driving at a high rate of speed after he turned and travelled back in the direction he had come, passing the pursuing officers. These facts justified the officers to reasonably suspect the defendant was committing the misdemeanor of reckless operation of a motor vehicle in violation of R.S. 14:99 (the operation of a motor vehicle in a criminally negligent or reckless manner). In accordance with C.Cr.P. art. 215.1, the officers stopped this defendant in a public place and requested his driver’s license to determine his name and address and asked for an explanation of his actions.

This case is distinguishable from the case of State ex rel Palermo v. Hawsey, 377 So.2d 338 (La.1979), cited in defendant’s brief. In that case, the majority of this Court held that a police officer had no probable cause to arrest a defendant for a traffic violation where he had observed that defendant driving out of a parking lot “accelerating, spinning his tires”. The difference is that we did not regard this conduct under the circumstances as a violation of R.S. 14:99, and the state specifically conceded that the defendant had not violated R.S. 32:103, which requires the operation of a vehicle from a parked position “with reasonable safety”. We then found no probable cause to arrest for reckless operation of a vehicle or for any other traffic offense. Unlike the facts in the case at hand, Palme-ro dealt with probable cause to arrest, a more stringent standard to meet (as noted above) than the reasonable suspicion required for an investigatory stop, the standard at issue here. Also, significantly, the Palermo Court specifically found that there was no evidence in the record that defendant was “speeding, weaving in his lane, crossing the center line, or giving any other indication he was operating his vehicle recklessly or in violation of any other traffic provision.” The instant facts, in our opinion, do give rise to a justifiable basis for stopping this defendant to ask for his name and address and for an explanation of his actions in accordance with C.Cr.P. art. 215.1 as the officers could reasonably suspect that he had committed the misdemeanor of reckless operation of a vehicle.

After the legal stop of Ault, the facts show that he freely and voluntarily consented to open his trunk when the officers asked if he minded doing so. In State v. Lukefahr, supra the defendant was also stopped for a traffic offense and then asked by police officers if he minded opening the back of the truck he was driving. Defendant replied that he did not mind, produced the keys, and opened the back of the truck, revealing contraband. As the Court then noted “under these circumstances, indicating a genuine and voluntary consent, it is not determinative whether probable cause existed for the search or whether the defendant had been warned of his right to refuse to permit the search. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).” Further, in the instant case, defendant again consented in writing to the search and seizure of the contraband from his trunk approximately 20 minutes after the officers had viewed the suspected contraband and after being informed of his right to refuse to consent to the search. Defendant’s consent also dispensed with the requirement of a search warrant. Schneckloth, supra; State v. Dowling, 387 So.2d 1165 (La.1980).

For the above reasons, we hold that the investigatory stop for a suspected traffic violation was justified and the subsequent search for and seizure of contraband was conducted with the free and voluntary consent of defendant. Defendant’s motion to suppress the contraband and evidence obtained as a result of that seizure was properly denied.

DIXON, C. J., dissents.

DENNIS, J., dissents with reasons.

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

DENNIS, Justice,

dissenting.

I respectfully dissent.

Officer Barrett’s testimony did not establish legal cause to stop the defendant, and clearly did not articulate a reason to detain him on suspicion of other criminal activity. According to Barrett, the decision to stop the defendant was made because the defendant’s tires squealed as he turned onto the service road, and the vehicle continued on at a speed which Barrett described variously as “unsafe” and “high.” But when asked to explain the significance placed on the noise by the tires, the officer replied only that “... there would have to be some erratic driving to make the noise, I, I really can’t, can’t say.” Furthermore, Barrett never testified that the “unsafe” or “high” speed he observed exceeded lawful speed limits, nor did he articulate any reason why it appeared unreasonable or unsafe for the road conditions at the time. Given the opportunity to justify a traffic stop, Officer Barrett could not do so, and this Court should not do it for him.

In addition, even if it had been established that the officers had probable cause to arrest the defendant for a traffic violation, they did not have articulable knowledge of particular facts sufficient reasonably to suspect him of other criminal activity. In fact, Officer Barrett testified that he had no reason to suspect Ault of any wrongdoing until he looked into the trunk. Therefore, the extended detention of his person for questioning about the contents of the automobile trunk was an unreasonable seizure prohibited by our constitutions.

CALOGERO, Justice,

dissenting.

I dissent for the reason that I believe the police had neither probable cause to arrest nor reasonable cause to detain defendant under C.Cr.P. art. 215.1.

The officers’ own testimony at trial demonstrated that the defendant’s operation of his vehicle, as observed by them, did not justify a reasonable belief that defendant had engaged in criminal activity; and the failure of the police to have ticketed defendant further supports this fact. The officers were unable to state that what they had observed amounted to the careless or reckless operation of a motor vehicle. Furthermore, the officers’ witnessing activity which may have approached illegality does not serve as reasonable cause to justify an investigatory stop which could not possibly be probative of whether or not the crime had been committed. Witnessing the defendant’s operation of his motor vehicle to have fallen short of carelessness or recklessness, the police then had no reason to “suspect” the defendant “is committing, has committed, or is about to commit a felony or misdemeanor ...” as C.Cr.P. art. 215.1 requires. The officers admit to having no reason to suspect the defendant of other criminal activity, as the record will reflect. What the majority proposes would allow a policeman to detain a person in order to investigate crimes which he does not reasonably suspect are being committed, have been committed, or are about to be committed.

Since the defendant’s detention and interrogation were illegal, his consent to search must be considered to have been tainted. Accordingly, I would reverse the ruling of the district court and grant the defendant’s motion to suppress the evidence.


author:
GUIDRY, Justice Ad Hoc.
     DIXON, Chief Justice

text:
    STATE of Louisiana v. Lloyd JAMES, Jr.
    No. 65583.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    Rehearing Denied March 20, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, John H. Craft, Asst. Dist. Attys., for plaintiff-appel-lee.
    William J. O’Hara, III, New Orleans, Loyola Law School Clinic, for defendant-appellant.
   GUIDRY, Justice Ad Hoc.

Defendant, Lloyd James, Jr., was charged with the crime of aggravated rape, a violation of R.S. 14:42. A twelve-member jury found the defendant guilty as charged. Following his conviction, the defendant was adjudged a third offender under the provisions of the Louisiana Habitual Offender Law, La.R.S. 15:529.1, and as such, sentenced to imprisonment at hard labor for a term of forty years. The defendant assigns four errors for reversal of his conviction and sentence.

FACTS

On November 15, 1971 at approximately 1:30 A.M., Sara Spottswood was beaten, robbed, and raped in her New Orleans apartment by a knife-wielding assailant who was later positively identified as the defendant, Lloyd James, Jr. Police investigating the offense apprehended the defendant on the apartment complex premises later that same evening. On December 3, 1971, a bill of indictment was returned charging the defendant with aggravated rape. Shortly thereafter, the defendant escaped from legal custody.

In January, 1973, the defendant was arrested in Illinois for a murder allegedly committed in that state on December 18, 1972. Subsequent to his arrest in Illinois, the defendant underwent psychiatric examinations and was determined unfit to stand trial on that state’s murder charge. Defendant remained incarcerated in Illinois where he regularly underwent psychiatric evaluation to determine his fitness for trial. On October 30, 1975, physicians in Illinois concluded that the defendant’s schizophrenia was in partial remission and that the accused was competent to stand trial. Presumably, defendant’s murder trial was conducted shortly thereafter.

Defendant was returned to Louisiana pursuant to extradition procedures some time in early 1976. Following his return to this state, a new bill of indictment was returned again charging the accused with aggravated rape of Sara Spottswood. Subsequently, the defendant was arraigned and entered a plea of not guilty and not guilty by reason of insanity.

Defendant’s appointed counsel, Mr. Robert Zibilich, thereafter filed a motion requesting the appointment of a sanity commission to examine the accused. Pursuant to this request, the court appointed Drs. Albert Fant and Ignacio Medina to examine the defendant and determine whether or not he was competent to stand trial. Both physicians examined the accused and concluded that he was competent and able to proceed with his trial. Trial was then set for January 20, 1977.

Prior to trial, Mr. Zibilich was discharged as defendant’s attorney when the accused retained Mr. Edward Haggerty to represent him. At Mr. Haggerty’s behest, defendant’s trial was continued without date. In July of 1977, Mr. Haggerty was permitted to withdraw from the case due to defendant’s failure to pay certain legal fees. Additional changes in counsel occurred subsequent to Mr. Haggerty’s withdrawal. Ultimately, defendant’s representation was undertaken by the Loyola Law Clinic. With each change in defense counsel, the pleading process was essentially begun anew, thus, various defense motions delayed the defendant’s trial until September 19, 1978.

On September 18, 1978, the day prior to trial, def&ise counsel filed a motion to quash the indictment alleging that the state failed to expeditiously bring this matter to trial and that such failure precluded defense experts from reconstructing the accused’s mental state at the time of the commission of the offense. The trial judge refused to consider this motion and the trial of the case began as scheduled on the following day.

During the course of the trial, the defendant made no attempt to deny responsibility for the rape of the victim but rather urged insanity in defense. After evidence was presented, the jury returned a unanimous verdict of guilty as charged.

ASSIGNMENTS OF ERROR NUMBERS 1 AND 4

Defendant contends that the trial court erred in denying his motion to quash the indictment and his motion in arrest of judgment both grounded upon the alleged violation of defendant’s Federal and State Constitutional right to a speedy trial. In addition, defendant claims in brief to this court that during this delay, prescription ran on the State’s prosecution against him.

Defendant avers that he was not tried until seven years after the commission of the offense and that such delay prevented him from proving his defense of insanity. Defendant concedes that he escaped shortly after his arrest in Louisiana, however he contends that Louisiana authorities were notified regarding his whereabouts shortly after his arrest in Illinois yet failed to initiate measures reasonably calculated to return the accused to Louisiana for trial on the aggravated rape charge thereby delaying his trial for five years.

Flexibility is the governing philosophy in determining whether or not delay constitutes a denial of the right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Barker, supra, the Court rejected what is described as “inflexible approaches,” i. e., imposing specific time limitations, in favor of a “balancing test, in which the conduct of both the prosecution and the defendant are weighed.” The Court listed the following four factors to be considered in each particular case: (1) length of delay, (2) reason for the delay, (3) the defendant’s assertion of his right, and, (4) prejudice to the defendant, such as the possible impairment of the presentation of the accused’s defense. This court has adhered to the Barker analysis in evaluating Louisiana’s speedy trial claims. La.Const.1974, Art. I, Sec. 16; La.C.Cr.P. Art. 701; State v. Alfred, 337 So.2d 1049, 1058 (La.1976); State v. Reaves, 376 So.2d 136 (La.1979). We consider defendant’s contentions in light of these guidelines.

There is no question but that the delay in the instant case, on its face, appears to be clearly inordinate. However, as previously noted under Barker, supra, the inquiry into whether a defendant’s constitutional right to a speedy trial has been violated does not end with such finding. Further, as we stated in State v. Reaves, supra, “The peculiar circumstances of the case will determine the weight to be ascribed to the length of the delay and the reason for the delay.”

The next factor to be considered in .the speedy trial analysis is the reason for the delay. Clearly the state cannot be charged with responsibility for any delay caused by the defendant’s own actions in escaping from the custody of Louisiana authorities. As previously noted, the defendant escaped from custody almost immediately following his indictment and was not returned to Louisiana until early 1976. Although, in brief, defendant suggests that Louisiana authorities were notified of his whereabouts promptly after his arrest in Illinois, the record contains no information whatever revealing the circumstances surrounding the defendant’s extradition to Louisiana, specifically when Louisiana was first notified of the defendant’s arrest in the State of Illinois and/or what efforts were made by the Louisiana authorities as well as any difficulties encountered by Louisiana officials during the extradition process. Further, it clearly appears from the record that once the defendant was returned to Louisiana for trial, all subsequent delays (a period of almost 2% years) are solely attributable to the defendant. As we previously indicated, several changes in defense counsel occurred and each time the pleading process was begun anew. Clearly the State is not responsible for the delay in trial during this 2V2 year period.

Concerning defendant’s assertion of his right to a speedy trial, he argues that he should not be penalized for not asserting his right to a speedy trial while in Illinois since he was declared incompetent. We acknowledge that the defendant should not be penalized for failure to assert his right at such time that he was declared legally insane. Further, we acknowledge that Louisiana authorities were not excused from initiating measures reasonably calculated to return the defendant to Louisiana for trial merely because defendant was declared incompetent by Illinois physicians and incarcerated in that state. Smith v. Hooey, 393 U.S. 375, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). However, as a forestated, there is nothing in the record to indicate that the State of Louisiana was lax in its duty to extradite the defendant to Louisiana for trial and in any event, it cannot be denied that the defendant’s actions in absconding from custody was the reason initially that any delay at all occurred. Finally, and most convincing of defendant’s failure to jealously assert his right to a speedy trial, is the circumstance that following his extradition in early 1976 all delays in bringing this matter to trial are attributable to the defendant himself and during this almost 2xh year period he did not assert his right to a speedy trial until the day before trial at which time he filed a motion to quash.

The final area of inquiry in the speedy trial analysis is prejudice to the accused. Able counsel for the defense urges that the defendant was greatly impaired in the presentation of his defense because examining psychiatrists could not provide a diagnosis of his mental state at the time of the offense to the passage of time between the offense and the subsequent examination. Although we recognize that the passage of time probably adversely affected the viability of the accused’s insanity plea, we conclude that it was the defendant’s own actions not those of the State which resulted in any such impairment. Had the defendant remained in custody of the Louisiana authorities subsequent to the commission of the offense, he could have requested a sanity commission to ascertain his mental state at the time of the crime. Defendant was arrested on the night the crime was committed and indicted some 19 days later. Therefore, it is reasonable to assume that examining physicians could have ascertained defendant’s mental condition at the time of the offense with some degree of reliability and certainty. It is not the State’s responsibility that an accurate evaluation of defendant’s mental health could not be obtained at the time the offense was committed, rather such difficulty is clearly attributable to the defendant’s own actions in escaping from custody. Further, we observe, that as soon as the defendant was arrested in Illinois in January of 1973 he underwent numerous psychiatric evaluations. The fact that defense counsel failed to call the Illinois physicians to testify on behalf of the defendant is not chargeable to the State.

In summary, we conclude that several counterbalancing factors outweigh the seemingly inordinate delay between arrest and trial. First, the initial reason that defendant’s trial was delayed was because he absconded from legal custody and so far as the record reflects, the defendant’s whereabouts were unknown to Louisiana authorities until such time as he was extradited to Louisiana in the early part of 1976. Secondly, all of the delays in bringing the defendant to trial following his extradition to Louisiana are attributable to the defendant. Thirdly, at no time during the latter period which extended for a period of some 2V¿ years did the defendant once assert his right to a speedy trial except on the day before trial when he filed his motion to quash the indictment. Fourthly, the prejudice, if any, suffered by the defendant in the presentation of his defense of insanity was a result of the defendant’s own action in absconding from custody and the failure of his counsel to call the Illinois examining physicians to testify in his behalf.

For the foregoing reasons, we find no merit in these assignments of error.

ASSIGNMENT OF ERROR NUMBER 2

Defendant contends that the trial court erred in denying his motion to quash the indictment alleging that the 1971 indictment returned against him were defective in that it was returned by a grand jury which systematically excluded women.

The U. S. Supreme Court in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) held that the procedure set forth in the 1921 Louisiana Constitution for empanelling jurors unconstitutionally excluded women, thereby, denying the defendant his constitutional right to trial by a jury of his peers. Subsequently, that Court determined in the case of Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975) that the holding in Taylor, supra, was not to be applied retroactively. Defense counsel avers that since the Taylor decision was decided four years prior to the defendant’s trial and since the State had formal notice of the indictment’s defectiveness via the defendant’s motion to quash, the Taylor decision should be given full force and effect.

This contention is clearly without merit. In response to defendant’s motion to quash the 1971 bill of indictment, the district attorney presented evidence of the accused’s guilt before a newly-empanelled grand jury which met all constitutional standards. On April 13, 1978, this second grand jury returned a bill of indictment charging the defendant with aggravated rape, a violation of R.S. 14:42. The present prosecution is based upon this latter indictment. No motion to quash this second indictment was filed by the defendant, therefore, we find no merit in this assignment. See State v. Holiday, 337 So.2d 493 (La.1976).

ASSIGNMENT OF ERROR NUMBER 3

Defendant’s final assignment of error concerns the alleged erroneous admission of “other crimes” evidence, which defendant asserts mandates a mistrial under the provisions of La.C.Cr.P. Art. 770. The defendant urges that the erroneous admission of “other crimes” evidence occurred during cross-examination by the State of defendant’s medical witness, Dr. Albert Fant, the testimony of which witness had been offered by defendant to establish his defense of insanity at the time of the commission of the offense.

On direct examination the defendant questioned Dr. Albert Fant, one of two physicians appointed by the court to evaluate the accused’s mental condition. Pursuant to stipulation by the defense and prosecution, Dr. Fant was permitted to testify concerning the results of certain psychiatric examinations conducted by the defendant’s court-appointed physicians in Illinois. In testifying, Dr. Fant made reference to the Illinois medical records which contained the diagnosis of defendant’s mental state as given by a Dr. Leonard Horecker on July 28, 1973 which described the accused as suffering from chronic paranoid schizophrenia. Dr. Fant testified on direct examination that after reviewing all of the Illinois medical records regarding the defendant’s mental condition, and various other medical records dating from the year 1963, and based upon his own examination of the accused, he agreed with the conclusion of Dr. Horecker. On cross-examination, the State used these reports to question Dr. Fant. Quoting from one of these reports, the prosecutor proceeded with the examination of Dr. Fant in the following manner:

“Q. Now, Doctor, after the lapse of seven years, we pick up on these records from Chicago again. In the beginning of these records, dated January 16th — the first page of these records. At the beginning of the first paragraph: When he was called from the waiting room he did not respond, but then later, slowly shuffled to the examining area. There was evidence of psychomotor retardation. His movements were quite slow as was his thought processes. Some questions he did not respond to at all.
Would these kinds of psychomotor problems, shuffling — this is 1973 now. What would this indicate to you, that there was a disease present, and that it had accelerated in its progress?
A. Yes, that would be consistent with the further progression of the illness.
Q. This was in 1973. Doctor, does tho-razine and other medication given to people who have this disease, does that create these kinds of symptoms, the shuffling?
A. That does too, yes.
Q. It might be difficult to decide without knowing what kind of medication he was oil at this time, whether these symptoms were from the medication, or from the disease, is that correct?
A. Yes.
Q. Or, from both. And, if you would continue on: Some questions he did not respond to at all: Others he responded to in a very low voice. He appears confused about why he was arrested, and claims he was arrested for unlawful possession of a weapon. He does not seem to recall any shooting of a weapon. He does not seem to recall any shooting incident, and specifically denies shooting the victim. Although, he is aware that it is a woman who was supposed to have been shot and killed.” (Emphasis supplied)

The last question propounded to Dr. Fant makes reference to a direct quote from one of the reports which made reference to the accused’s arrest, his unlawful possession of a weapon, his failure to recall any shooting of a weapon or shooting incident and the accused’s denial of having shot the victim. Defendant contends that this reference to another crime was inadmissible, highly prejudicial and mandated the declaration of a mistrial which was timely requested by his counsel. For the reasons which follow we find no merit in this contention.

When a witness has been intentionally sworn and has testified to any single fact in his examination in chief, he may be cross-examined upon the whole case. LSA-R.S. 15:280. The prosecution has the right to rebut the evidence adduced by the defendant, LSA-R.S. 15:282, and in such endeavor may cross-examine witnesses offered by the defendant as to any relevant or material issue. Relevant evidence is defined by LSA-R.S. 15:441 as follows:

“Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.”

As we stated in State v. Constantine, 364 So.2d 1011 “the relevancy of proffered evidence thus depends on whether it tends to prove or disprove a material fact at issue”.

Although it is settled law that generally evidence of extraneous offenses is inadmissible, La.C.Cr.P. Art. 770; State v. Herman, 358 So.2d 1282 (La.1978), it appears equally settled that matters which are relevant to issues before the jury should not be excluded merely because they show the accused has committed other offenses. State v. Constantine, supra; State v. Herman, supra; State v. Moore, 278 So.2d 781 (La. 1973).

One of the material and relevant issues before the jury in the instant case was the mental condition of the defendant at the time of the commission of the crime. Defendant, by the testimony of Dr. Fant and by use of the Illinois medical records, sought to establish his insanity at the time of the offense. The State in its efforts to rebut the effect of this direct evidence and in cross-examination of Dr. Fant made use of these same reports and made reference to particular portions thereof which Dr. Fant allegedly used as a factual basis for his ultimate opinion that he concurred with the diagnosis of Dr. Horecker. Under such circumstances we find the evidence clearly relevant to one of the central and material issues before the jury and, therefore, admissible in spite of the oblique reference to some other crime.

Further, we observed that he quote from the Illinois report employed by the State was largely exculpatory in nature and supportive of defendant’s insanity defense. We discern no clear and substantial prejudice to the accused which may have resulted from the language contained in this report. For these reasons we find this assignment of error to be without merit.

For the foregoing reasons we affirm defendant’s conviction and sentence.

AFFIRMED.

DIXON, C. J., dissents and assigns reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

The direct reference to shooting and killing a woman in Illinois was placed before the jury by the prosecutor’s reading from a report. It was unnecessary; it was wholly irrelevant to any issue in this case; it was highly prejudicial, almost making certain that the jury would convict this dangerous man, insane or not.

       Judges E. L. Guidry, Jr., J. Burton Foret and P. J. Laborde, of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices ad hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, Jr., and Harry T. Lemmon.

      . This latter contention, urged for the first time on appeal, has not been timely raised. Under La.C.Cr.P. Art. 581, the right of dismissal based upon failure to commence trial, La.C.Cr.P. Art. 578, is waived unless urged via motion to quash filed prior to trial. See also, La.C.Cr.P. Art. 535.

      . La.C.Cr.P. Art. 770 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.”