author:
CALOGERO, Justice.
     DENNIS, J., DENNIS, Justice,

text:
    John O. CLAY et al. v. Robert D. CLAY.
    No. 64818.
    Supreme Court of Louisiana.
    Nov. 29, 1979.
    Dissenting Opinion Oct. 8, 1980.

      Burt W. Sperry, Thomas E. Richard, Shotwell, Brown & Sperry, Monroe, for plaintiffs-applicants.
    Edwin K. Theus, Jr., Theus, Grisham, Davis & Leigh, Monroe, for defendant-respondent.
   CALOGERO, Justice.

Plaintiffs instituted a petition for a writ of quo warranto against a non-resident in a summary proceeding and attempted service under Louisiana’s long arm statute (R.S. 13:3201, et seq.). The trial court’s judgment for plaintiff on the merits was set aside by the Court of Appeal after that court concluded that defendant’s exception to the jurisdiction of the trial court should have been sustained. The Court of Appeal ruled that Louisiana’s long arm statute cannot be used to obtain personal jurisdiction over a non-resident in a summary proceeding at least where a defendant is not afforded the minimum delays he would be entitled to in ordinary proceedings.

We granted writs upon plaintiff relator’s application to review that determination, prompted in part by the argument that defendant received notification of the suit and probably had a reasonable opportunity to appear and defend, and in addition the trial was recessed for two days to allow the defendant to gather and present evidence.

For reasons closely akin to those set out by the Court of Appeal we affirm their sustaining the exception to the jurisdiction over the person of the defendant, but we reverse their dismissal of the case and remand to the district court to allow plaintiffs an opportunity to attempt service of process anew. For a recitation of the facts and proceedings in the lower court see the appendix attached to this opinion.

As this case involves an attempt to bring a quo warranto action as a summary proceeding under the long arm statute, we begin with a discussion of summary and ordinary proceedings and the distinctions between the two. Summary proceedings are those which are conducted with rapidity within the delays allowed by the court, and without citation and the observance of all formalities required in ordinary proceedings. C.Civ.P. art. 2591. “More than one hundred and twenty-five code or statutory provisions permit the use of summary procedure in special cases.” Comments (a) C.Civ.P. art. 2592. Generally summary proceedings are allowed in instances where the issue to be resolved is narrow and/or the need for rapid adjudication is great.

Summary proceedings are commenced by the filing of a contradictory motion or by a rule to show cause except as otherwise provided by law. C.Civ.P. art. 2593. “Citation and service thereof are not necessary in a summary proceeding. A copy of the contradictory motion, rule to show cause, or other pleading filed by the plaintiff in the proceeding, and of any order of court assigning the date and hour of the trial thereof, shall be served upon the defendant.” C.Civ.P. art. 2594.

The writ of quo warranto, although required to be instituted by petition, is an extraordinary remedy which may be but does not necessarily have to be tried-summarily. Plaintiff may choose to bring the quo warranto action as an ordinary proceeding. C.Civ.P. art. 3781 and Comment (b) thereunder. The writ when ordered may be signed by the clerk under the seal of the court, or it may be issued and signed by the judge without further formality. C.Civ.P. art. 3781. With respect to a writ of quo warranto instituted as a summary proceeding, the Code of Civil Procedure requires the court to set a hearing not less than two nor more than ten days after service of the writ, although upon a proper showing the court may assign the matter for hearing less than two days after service of the writ. C.Civ.P. art. 3782.

The respondent in a quo warranto proceeding is required to show by what authority he claims or holds public office, or office in a corporation. C.Civ.P. art. 3901. The writ of quo warranto instituted as a summary proceeding does not prompt the service of citation. Defendant is thus not told that he must comply with the demand contained in the petition or make an appearance by filing a pleading or otherwise, but rather is merely directed to show cause why the relief sought by his opponent should not be granted. The Code of Civil Procedure, Article 3783, does however require that a written answer to the petition be filed not later than the time fixed for the hearing. It is tried by preference over ordinary proceedings without a jury (C.Civ.P. art. 2595) and may result in a judgment forbidding the defendant from holding or claiming an office, declaring who is entitled to the office, or directing an election when necessary. C.Civ.P. art. 3902.

In contrast to summary proceedings, ordinary proceedings require citation and service thereof (C.Civ.P. art. 1201) and allow more time for the hearing of exceptions and other pleadings. The citation, signed by the clerk of court and accompanied by a certified copy of the petition, must contain, among other things “a statement that the person cited must either comply with the demand contained in the petition or make an appearance, either by filing a pleading or otherwise in the court issuing the citation within the delay provided in Article 1001 [fifteen days] under penalty of default.” C.Civ.P. art. 1202. A preliminary default may be confirmed after two days from entry of the judgment of default. C.Civ.P. art. 1702. A default judgment may not be taken against a person who has not received citation and service thereof, see Succession of Barron, 345 So.2d 995 (La.App. 2nd Cir. 1977), citing C.Civ.P. art. 1201.

Jurisdiction over a person who has not submitted or waived objection, be it in connection with ordinary or summary proceedings, is based upon service of process. C.Civ.P. art. 6. The service of process contemplated by C.Civ.P. art. 6 “includes either personal or domiciliary service on the defendant.” Comments (f) C.Civ.P. art. 6. Personal service, “made when a proper officer tenders the citation or other process to the person to be served” (C.Civ.P. art. 1232) “may be made anywhere the officer making the service may lawfully go to reach the person to be served.” (C.Civ.P. art. 1233). “Domiciliary service is made when a proper officer leaves the citation or other process at the dwelling house or usual place of abode of the person to be served with a person of suitable age and discretion residing therein as a member of his domiciliary establishment.” C.Civ.P. art. 1234. This personal or domiciliary service may be made upon a representative of another by appointment of court, by operation of law, or by mandate. C.Civ.P. art. 1235.

Comment (g) to C.Civ.P. art. 6 notes that “this article is broad enough to include the extension of the limits of jurisdiction over the person recently made by McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957).” To comport with constitutional requirements, personal jurisdiction over a non-resident depends upon minimum contacts the defendant has with the state which indicate that he has purposely availed himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protection of its laws. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Boykin v. Lindenkranar, 252 So.2d 467 (La.App. 4th Cir. 1971).

Jurisdiction over the status of individuals, including in some instance a nonresident may also be exercised by Louisiana courts. C.Civ.P. art. 10(6), (7). And personal jurisdiction may be exercised over a non-resident as to a cause of action arising from the non-resident’s ownership interest in property within the state, transacting business in the state and certain other conduct. R.S. 13:3201.

Louisiana’s statutory (and only) means of effecting service of process on the non-resident such as Robert Clay in this suit is by compliance with the so called long arm statute, R.S. 13:3201-3207, a statute adopted by this state to permit the courts of Louisiana to tap the full potential of in personam jurisdiction over non-residents consistent with the due process clause of the fourteenth amendment. Comment (a) R.S. 13:3201, Adcock v. Surety Research and Investment Corporation et al., 344 So.2d 969 (La.1977). Just as personal jurisdiction over residents cannot be maintained without valid personal or domiciliary service as required by law, personal jurisdiction over non-residents is fully dependent upon strict compliance with the long arm statute’s procedural requirements. As we stated as recently as 1975 in Ray v. South Central Bell Telephone Company, 315 So.2d 759 (La.1975), “The word shall in R.S. 13:3204 setting forth the methods of service, means that the provisions of this section are mandatory.” See also Bickford v. Lutz, 339 So.2d 1268 (La.App. 3d Cir. 1976). Only when plaintiff’s counsel sends to the defendant by registered or certified mail a certified copy of the citation and of the petition in a suit under the long arm statute does such service have the same legal force and validity as personal service made on the defendant within the state. R.S. 13:3204.

The only difference in the effect between ordinary citation (requiring fifteen days in which to answer) and the long arm citation, is that the long arm statute does not allow a default judgment until thirty days after filing in the record of an affidavit indicating that the process was mailed or delivered to the defendant as required by the statute. As is indicated in the comment (b) to R.S. 13:3205 “The longer delay for answering allowed in this section, and the requirement of proof of notice to the defendant through mail or by delivery, lend strong support to the constitutionality of R.S. 13:3201 through 13:3207.”

Therefore personal jurisdiction over a non-resident obtained by use of the long arm statute may not attach if the service of process falls short of R.S. 13:3204’s requirements. And such is the case in connection with the type of service customarily employed in summary proceedings, namely service of a certified copy of the contradictory motion or rule to show cause with attached order (and without citation).

This is not to say that once personal jurisdiction attaches by compliance with the long arm statute through service of process which includes citation (and this ordinary proceeding is available in quo warranto proceedings, see C.Civ.P. art. 3781), that elements of summary proceedings might not thereafter be permissible or in order. For instance after defendant has answered he may be noticed or ruled into court and the matter tried preferentially. Likewise incidental rules or motions in connection with the litigation will be disposed of summarily.

When therefore we turn to the dis-positive question in this case we conclude that personal jurisdiction did not attach over the defendant herein because the service of process upon which plaintiff relies did not comport with R.S. 13:3204. The instrument mailed to the defendant did not include a citation, but rather consisted of a certified copy of the petition with attached order fixing the matter for hearing, the amended petition and the writ.

Plaintiffs contend, however, that even if the service of process was not sufficient to attach personal jurisdiction defendant waived his exception of insufficiency of service of process and lack of personal jurisdiction by submitting to the jurisdiction of the court.

After defendant’s exception to the court’s jurisdiction was overruled he notified the trial court through counsel (defendant never appeared before the trial court in person) of his intention to apply to the Court of Appeal for supervisory writs and asked the trial court to stay the proceedings pending a decision of the Court of Appeal on that application. The trial judge gave defendant nine days in which to seek writs but denied the request for a stay and announced that he would proceed with the hearing. At that point defendant availed himself of C.Civ.P. art. 7 and filed an answer. Plaintiff contends that the request for a stay and/or for the later answer constituted a submission to the court's jurisdiction, and/or waiver of objections thereto.

Defendant’s request for a stay was merely incidental to the application for supervisory writs by which he was protesting the court’s ruling on his exception to the jurisdiction. This was surely no waiver of objection or submission to the jurisdiction.

We also conclude that the answer filed under these circumstances did not subject defendant to the jurisdiction of the court.

Defendant’s answer came after his exception to the jurisdiction had been overruled and his request for a stay of the trial pending application for writs had been denied. He surely cannot be required to fore-go answering and defending the quo war-ranto proceeding on the merits in order to avail himself on later appellate review of a meritorious exception to the jurisdiction which had been erroneously overruled by the trial judge.

Equally significant, Article 7 of the Code of Civil Procedure provides that even an answer filed at the same time as an exception to the jurisdiction does not constitute a general appearance if the answer is required by law. And C.Civ.P. art. 3783 does require the filing of an answer to a writ of quo warranto. In fact C.Civ.P. art. 3783, providing for a written answer to a petition for a writ, was included in the Code of Civil Procedure because Article 2593 states that an answer is not required in summary proceedings “except as otherwise provided by law.” We are not dissuaded from this conclusion by the possibly gratuitous Footnote 3 in State v. James, supra to the effect that nothing in C.Civ.P. art. 3783 requires a written answer. See Footnote No. 2 herein. Minimally C.Civ.P. art. 3783 so requires an answer as to qualify under Article 7’s provision that, filed with (or as in this case, after) the peremptory exception, it does not constitute a general appearance.

Plaintiffs’ arguments concerning fairness, due process, reasonable opportunity to defend, or the given delay in which to produce witness are all irrelevant. In all instances where defendant appears personally or through counsel and files an exception to the jurisdiction of the court, defendant has been notified and seemingly has had an opportunity to present his defense. Yet our law sanctions this procedure as a means of protesting the court’s jurisdiction without submitting thereto. C.Civ.P. art. 7; Stelly v. Quick Mfg. Inc., 228 So.2d 548 (La.App. 3d Cir. 1969).

Plaintiffs’ third assignment of error is meritorious. Their suit should not have been dismissed. The quo warranto action can be brought as an ordinary action under the long arm statute if the proper service and citation are obtained. Therefore, plaintiffs should be allowed to amend their petition and cure defects in the service of process. Comment (b) C.Civ.P. art. 3781; C.Civ.P. art. 932. Louisiana Power and Light Co. v. Ursin, 334 So.2d 559 (La.App. 4th Cir. 1976); Kachelmyer v. Ames, 335 So.2d 525 (La.App. 1st Cir. 1976); Boykin v. Lindenkranar, 252 So.2d 467 (La.App. 4th Cir. 1971).

Decree

For the foregoing reasons the judgment of the Court of Appeal insofar as it sustains defendant’s exceptions to the jurisdiction of the trial court is affirmed; it is reversed insofar as it dismissed plaintiffs’ lawsuit. The case is remanded to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

MARCUS, J., concurs.

BLANCHE, J., concurs in the result.

DENNIS, J.,

dissents and assigns reasons.

Appendix

John 0. Clay and Robert D. Clay are brothers who are contesting the rights to office in the Clay Oil & Gas Corporation. Their father owned all the shares of Clay’s Park, Inc., an Ohio corporation which owned and operated a recreational park in Ohio. John and Robert Clay each received one half of the voting stock of Clay’s Park, Inc., on the death of their father. The brothers’ wives and children received the non-voting stock of the corporation, divided equally between the two families.

In 1971 Clay’s Park, Inc., was merged into Clay Oil and Gas Corporation, a Louisiana Corporation engaged in the oil and gas business. The two families maintained identical interests in the corporation after the merger. The Board of Directors of Clay Oil and Gas before this controversy began consisted of John and Robert Clay and their wives. It is not disputed that the board was deadlocked prior to a disputed shareholders’ meeting.

On April 24, 1978, John Clay, acting as a shareholder, issued notice of an annual shareholders’ meeting in Monroe, Louisiana at the registered office of the corporation. The notice stated that the purpose of the meeting was to hold an election of directors and to transact any business which might properly, come before the board. Robert Clay and his son and John Clay, his wife, and daughter were present at the May 5th meeting. In addition to the shareholders, two attorneys representing John Clay and a court reporter were present.

Robert Clay objected to the presence of the attorneys and requested that he be given an opportunity to retain counsel. When this request was refused, Robert Clay and his son Richard left the meeting. The parties disagree whether the meeting had been called to order before Robert and Richard Clay left the meeting. John Clay, his wife and daughter continued the meeting despite Robert Clay’s departure. These remaining shareholders elected Robert Clay, John Clay, and two other members of John Clay’s family to the board of directors, giving the John Clay family three of the four votes on the board of directors.

A meeting of the newly elected board was scheduled for the next day, May 6, 1978. On May 6, 1978 the new directors (except Robert Clay who was absent) elected John Clay Chairman of the Board and Chief Executive Officer and President. The offices of Vice-President and Secretary-Treasurer were filled by members of the John Clay family. The board then passed a resolution naming the three officers of the corporation as the only corporate officials authorized to withdraw corporate funds from any financial institution.

Robert Clay refused to acknowledge the validity of the May 5, 1978 shareholders’ meeting and the May 6, 1978 board of directors’ meeting. Robert Clay filed suit in Ohio alleging that he was Chairman of the Board and Chief Executive Officer of Clay Oil and Gas, and was authorized to maintain possession and control of the corporate funds and records. Robert Clay also instituted a suit in Ohio to dissolve the corporation.

On July 21, 1978, Robert Clay issued a call for an annual shareholders’ meeting to be held in Monroe, Louisiana at the registered office of the corporation on August 1, 1978. In response to this action John Clay and other members of his family filed a writ of quo warranto on July 31, 1978, directing Robert Clay to answer the petition and state by what authority he claimed the offices of Chairman of the Board and Chief Executive Officer, President, and Secretary-Treasurer. The suit sought an order forbidding the defendant Robert Clay from possessing the books and papers of the corporation and from acting as an officer of the corporation.

On August 3, 1978, Robert Clay received in the mail a certified copy of the petition for writ of quo warranto with attached order fixing the matter for hearing the amended petition and the writ, at his home in Canal Fulton, Ohio. The next day, August 4, 1978, defendant Robert Clay filed declinatory and dilatory exceptions in the trial court in Monroe, Louisiana. He amended these exceptions on August 7, 1978. The trial judge set August 9, 1978 for the hearing on the exceptions of insufficiency of service of process and lack of personal jurisdiction.

The trial court overruled defendant’s exceptions at the hearing on August 9, 1978. At that time defendant filed a notice of intention to apply to the Second Circuit for supervisory writs. The trial court fixed a return date for the writ application, but denied defendant’s request for a stay pending a ruling on the writ application. The defendant then filed an answer and the case proceeded to trial. At the conclusion of the plaintiffs’ case, the defense did not present testimony. The court left the trial open for two days to allow the defendant to present testimony, but defendant declined to produce evidence.

On August 16, 1978, the court signed a judgment granting plaintiffs all relief prayed for. On March 26, 1979 the Second Circuit Court of Appeal reversed the judgment of the trial court, on the grounds that the Louisiana long arm statute (R.S. 13:3201, et seq.) may not be utilized in connection with a summary proceeding at least where a defendant is not afforded the minimum delays he would be entitled to in ordinary proceedings.

DENNIS, Justice,

dissenting.

I respectfully dissent. I am not convinced that the long arm statute can never be used in a summary proceeding, and I am certainly unwilling to announce such a rule under the facts of this case, as it is clear that the defendant received notice of the action pending against him and had sufficient opportunity to retain counsel who could prepare his defense and appear in court for him. Our long arm statute was passed with the obvious intent of giving our citizens the maximum access to nonresident defendants allowed under the constitutional restrictions of due process. La.R.S. 13:3201, Comment (a); Adcock v. Surety Research & Inv. Corp., 344 So.2d 969 (La. 1977). Due process is not offended when there is “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such a nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance." Mullane v. Central Hanover Bank and Trust Company, 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950) [citations omitted]. Under the facts set forth in the Appendix to this case, it is plain that the defendant’s notice met these constitutional requirements.

Moreover, I agree with the trial judge that it was of no statutory significance that there was no citation included in the service of process, since the writ of quo warranto which was attached to the petition contained substantially the same notices and requirements that a citation would have contained and therefore served the same purpose as a citation.

I would not be so niggardly in interpreting the provisions of the long arm statute as to find no room for the use of this method of obtaining jurisdiction in summary proceedings. In certain instances, the law provides for the use of summary proceedings because no relief lies by ordinary means or where the delay involved in obtaining relief may cause injustice. Cf. C.C.P. Article 3862. We must remember that our own citizens’ interests in obtaining adequate and timely redress of wrongs committed against them are meant to be protected by the long arm statute, as well as the defendant’s interests in adequate notice and time to make an appearance. We should not announce a rule which bars this sort of expedited relief even in cases where the nonresident defendant receives reasonable notice and is in a position to defend against the claim.

       Chief Judge Paul B. Landry, Retired is sitting by Assignment as Associate Justice Ad Hoc in place of Tate, J., upon this case.

      . Code of Civil Procedure, Article 3783 provides:
      “A written answer to a petition for a writ shall be filed not later than the time fixed for the hearing.”

      . But see State v. James, 251 La. 913, 207 So.2d 389 (1968) where this Court upheld a trial court’s decision in a summary mandamus proceeding that where defendant was not commanded or ordered to answer in writing but only commanded to appear and show cause, the court could rule on the mandamus action despite the fact that defendant filed no written answer. This Court stated in footnote 3 at 207 So.2d 392: “There is nothing in LSA-C.Civ.P. '3783 requiring defendant to file a written answer.”

      . Code of Civil Procedure, Article 5091 provides that where a defendant is a non-resident or absentee or an unemancipated minor or mental incompetent with no legal representative the court may appoint an attorney as curator or tutor ad hoc to receive service of process. An attorney may also be appointed to receive process under C.Civ.P. art. 5091 where no succession representative has been appointed and the heirs and legatees have not been sent into possession judicially, where the defendant’s legal representative has died, resigned, been removed from office, or left the state permanently or where a defendant is a corporation or a partnership and cannot be served with process for any reason. And too, R.S. 13:3471 directs the court to order the officer attempting to serve a foreign corporation with no agents or employees within the state to serve the secretary of state (or one of his employees) as agent for the foreign corporation.

      . Louisiana Revised Statutes 13:3474 and 13:3479 provide for service on the secretary of state as agent for non-resident motorists and watercraft operators.

      . Code of Civil Procedure, Article 1235 provides:
      “Service is made on a person who is represented by another by appointment of court, operation of law, or mandate, through personal or domiciliary service on such representative.”

      . But see Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) where the Supreme Court stated that the fiction that traditional in rem jurisdiction is anything other than an assertion of jurisdiction over the person can serve only to allow continued state-court jurisdiction that is fundamentally unfair. The Court concluded that all assertions of state-court jurisdiction must be evaluated by International Shoe fairness standards. Shaffer v. Heitner, 433 U.S. at 212, 97 S.Ct. 2569.

      . Louisiana Revised Statute 13:3201 provides:
      “A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s
      (a) transacting any business in this state;

        (b) contracting to supply services or things in this state;
      (c) causing injury or damage by an offense or quasi offense committed through an act or omission in this state;
      (d) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;
      (e) Having an interest in, using or possessing a real right or immovable property in this state; or
      (f) Non-support of a child or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the nonresident formerly resided in this state.”

      . Louisiana Revised Statute 13:3204 provides:
      “A certified copy of the citation and of the petition in a suit under R.S. 13:3201 shall be sent by counsel for the plaintiff to the defendant by registered or certified mail, or actually delivered to the defendant by an individual designated by the court in which the suit is filed, or by one authorized by the law of the place where the service is made to serve the process of any of its courts of general jurisdiction.

        “Service of process so made has the same legal force and validity as personal service on the defendant in this state." (emphasis provided)

      . Louisiana Revised Statute 13:3205 provides:
      “No default judgment can be rendered against the defendant until thirty days after the filing in the record of the affidavit of the individual who either:
      (a) mailed the process to the defendant, showing that it was enclosed in the envelope properly addressed to the defendant, with sufficient postage affixed, and the date it was deposited in the United States mails, to which shall be attached the return receipt of the defendant; or
      (b) actually delivered the process to the defendant, showing date, place, and manner of delivery.”

      . Louisiana Code of Civil Procedure, Article 7 provides:
      “Except as otherwise provided in this article, a party makes a general appearance which subjects him to the jurisdiction of the court and impliedly waives all objections thereto when, either personally or through counsel, he seeks therein any relief other than:
      (1) Entry or removal of the name of an attorney as counsel of record;
      (2) Extension of time within which to plead;
      (3) Security for costs;
      (4) Dissolution of an attachment issued on the ground of the nonresidence of the defendant; or
      (5)Dismissal of the action on the ground that the court has no jurisdiction over the defendant.
      This article does not apply to an incompetent defendant who attempts to appear personally, or to an absent or incompetent defendant who appears through the attorney at law appointed by the court to represent him.

        When a defendant files a declinatory exception which includes a prayer for the dismissal of the action on the ground that the court has no jurisdiction over him, the pleading of other objections therein, the filing of the dilatory exception therewith, or the filing of the peremptory exception or an answer therewith when required by law, does not constitute a general appearance.” (emphasis provided)

      . Code of Civil Procedure, Article 3783 provides:
      “A written answer to a petition for a writ shall be filed not later than the time fixed for the hearing.”

      . Comment (c) C.Civ.P. art. 2593 indicates that C.Civ.P. art. 2593 codifies the general rule of Code of Practice jurisprudence that summary proceedings require no answer except where specific codal or statutory authority provides to the contrary. Thus the Comment to Code of Civil Procedure, Article 3783:
      “This article is necessary in view of Article 2593, supra."

      . Code of Civil Procedure, Article 932 provides:
      “When the grounds of the objections pleaded in the declinatory exception may be removed by amendment of the petition or other action of plaintiff, the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court.
      If the grounds of the objection cannot be so removed, or if the plaintiff fails to comply with an order requiring such removal, the action shall be dismissed; except that if it has been brought in a court of improper jurisdiction or venue, the court may transfer the action to a proper court in the interest of justice.” (emphasis provided)


source: Caselaw Access Project

author: LEMMON, Justice. DIXON, Chief Justice CALOGERO, Justice, PER CURIAM. CALOGERO, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Verna BIBLE, Robert Steven Meziere and Billy W. Moore.
    No. 66584.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Rehearing Denied Oct. 31, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Lowen B. Lof-tin, Dist. Atty., William R. Coenen, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Carey J. Ellis, Ellis & Ellis, Rayville, for defendants-appellants.
   LEMMON, Justice.

Defendants, Verna Bible, Billy Moore and Robert Meziere, have appealed their conviction of possession of marijuana with intent to distribute, the sole assignment of error being the trial court’s refusal to grant their motion to suppress the evidence seized after a warrantless search.

I.

State Trooper Warner received information from a confidential informant on March 1, 1977 that Moore would be traveling from Texas in a blue and white Monte Carlo and would arrive at the J’Cal Trailer Park in Rayville during the early morning hours of March 2,1977 to deliver marijuana to a person named Lingefelt. Trooper Warner knew the informant, who had previously made a controlled purchase of narcotics under Warner’s supervision. Although the informant had never previously given Warner information which led to a narcotics arrest, he had given Warner drug-related information which Warner independently verified.

Later that evening Trooper Warner and two other officers went to the J’Cal Motel to establish a surveillance. From the motel room they observed Lingefelt in a trailer behind the motel. At about 12:15 a. m. (in the early morning hours of March 2, 1977) they saw a blue and white Monte Carlo arrive at Lingefelt’s trailer. Trooper Payne recognized one of the passengers to be Billy Moore, having known him from Moore’s prior involvement in illegal drug dealings. In fact Payne had previously purchased marijuana from Moore as an undercover agent during the closing months of 1976.

Defendant Meziere, the driver of the Monte Carlo, went to Lingefelt’s trailer, and when Lingefelt came to the door, Moore opened the trunk of the Monte Carlo, took out a suitcase and a brown paper sack and took these articles into Lingefelt’s trailer. After a period of less than fifteen minutes, Moore left the trailer with the suitcase and replaced it in the trunk of the Monte Carlo. Moore and Meziere then entered the Monte Carlo and drove away in an easterly direction on Highway 80. Shortly thereafter Lingefelt left the trailer, carrying what appeared to be the same brown paper sack which Moore had previously brought into the trailer, and drove off in a truck, also heading east on Highway 80.

In the meantime Tooper Payne and the other officer, at Trooper Warner’s instructions, had followed the Monte Carlo and set up a roadblock about three-fourths of a mile east of the motel. When the officers stopped the car, they ordered the occupants (Moore, Meziere and Miss Bible) to get out and advised them of their rights, but told them they were not under arrest. Trooper Warner had instructed the officers not to search the vehicle, but merely to hold it and the defendants pending his arrival.

When Lingefelt left the motel, Trooper Warner followed him and stopped him before he reached the roadblock. Trooper Warner observed a brown paper sack on the front seat next to Lingefelt, which had the same appearance as the sack he had seen Moore bring to the trailer. Warner took possession of the sack and opened it, finding a cellophane bag that contained one pound of marijuana.

Armed with this additional information, Trooper Warner placed Lingefelt under arrest and proceeded immediately to the location where the defendants were being detained. Upon arrival at the Monte Carlo (which the evidence established was only a few minutes after the initial stop), Warner told the defendants that he intended to search the car. He obtained the keys, opened the trunk, and found and opened the suitcase, finding the marijuana which was the target of the defendants’ motion to suppress.

II.

In determining whether probable cause may be found based on information from an unidentified informant, this court has followed the analysis outlined in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and State v. Paciera, 290 So.2d 681 (La.1974). The facts must establish the informant’s credibility as well as the reliability of the information supplied. The decision in State v. Tassin, 343 So.2d 681 (La.1977), noted that (1) the factors which support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report and (2) the factors which support the reliability of the reported information include direct personal observation by the informant or, if the information came indirectly to the informant, detailed reasons with which to evaluate and credit the reliability of both the indirect source and of the indirectly obtained information.

As to the reliability of the information in this case, the tip did not represent the observation of an eyewitness, but it was sufficiently detailed to indicate that it was more than a “casual rumor circulating in the underworld”. See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); State v. Wilson, 366 So.2d 1328 (La. 1978). The tip, as corroborated by surveillance, accurately described the automobile, the place to which the vehicle would deliver the marijuana, the person to whom the marijuana would be delivered, the person who would deliver the marijuana (a person known to the officers to be a drug dealer), and the approximate time of day when the transaction was to occur.

As to the credibility of the informant, Trooper Warner testified that the informant had previously supplied him with accurate information which, although not leading to an arrest, had been independently verified. While the informant’s participation in controlled buys does not alone pertinently establish credibility, the combination of all factors is sufficient to support an inference of credibility. See State v. Tassin, above. Significantly, this case is not one in which the sole basis for believing the informant was his participation in a single controlled purchase.

Furthermore, the tip in this case was independently verified by surveillance prior to the search of the Monte Carlo. As the surveillance progressed, the officers watched the informant’s tale unfold before their eyes just as it had been told. While it is conceded that the conduct observed was consistent with innocent behavior, the tip gave the conduct the color of criminal activity. The defendants’ behavior, together with Moore’s known previous involvement with illegal drugs, added credibility to the informant’s tale.

By the time Meziere drove the Monte Carlo away from the J’Cal Motel, the officers were certainly justified in stopping it, and even if they did not yet have probable cause to search, they certainly had enough information to justify stopping the car and temporarily detaining its occupants. At that point the officers unquestionably had an articulable basis for their suspicions, thereby justifying the initial stop. See State v. Jernigan, 377 So.2d 1221 (La.1979); State v. Jefferson, 284 So.2d 882 (La.1973).

III.

When the search complained of occurred, Trooper Warner had developed almost conclusive corroboration of the tip, namely, the marijuana found in Lingefelt’s truck. After the discovery of Lingefelt’s marijuana, probable cause clearly existed to search the Monte Carlo when Trooper Warner arrived on the scene. The question is whether the marijuana seized from Lingefelt can be considered in determining probable cause to search the car.

La.Const. Art. I, § 5 (1974) accords to an accused the right to object to the admissibility of illegally seized evidence, even though the search does not invade the accused’s own legitimate expectation of privacy. State v. Hebert, 351 So.2d 434 (La. 1977). Compare Rakas v. Illinois, 435 U.S. .922, 98 S.Ct. 1483, 55 L.Ed.2d 515. Nevertheless, in State v. Cullotta, 343 So.2d 977 (La.1977), this court recognized that the laudatory deterrent purpose served by the Louisiana exclusionary rule does not mandate that illegally seized evidence cannot be considered in support of probable cause. This observation is particularly pertinent in a ease, such as this one, in which the illegally seized evidence merely corroborates information that was legally obtained. As in the Cullotta case, this case does not involve a situation in which the possibly illegal evidence was the sole basis for establishing probable cause. The evidence produced by the questionable seizure from Lingefelt’s truck merely served to corroborate other information and to provide an additional basis for the determination that the other information came from a credible source. Therefore, although the validity of the seizure from the truck presents a close question, Lingefelt’s marijuana may nevertheless be considered in support of Trooper Warner’s probable cause to search the Monte Carlo.

The use of the possibly illegal evidence for consideration in support of probable cause is particularly logical when viewed in light of the purpose of the exclusionary rule. The rule should not preclude the use of evidence seized from a vehicle in which defendants had no reasonable expectation of privacy, when the evidence was used merely to corroborate other information to support a finding of probable cause. The “deterrent policies and individual protection” expressed by Louisiana’s Constitution are not violated under such circumstances. See State v. Cullotta, above, at 983.

We therefore conclude that when Trooper Warner arrived at the place where the Monte Carlo had been detained, he clearly had probable cause to believe that defendants were involved in illegal activity involving marijuana and that the Monte Carlo had been used to transport marijuana. However, further inquiry is necessary because Trooper Warner thereafter conducted his search of the trunk of the automobile and of the suitcase without obtaining a warrant.

In cases of searches of automobiles, the Supreme Court of the United States and this court have held that officers acting with probable cause may stop and search moving vehicles. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; State v. Tant, 278 So.2d 458 (La.1974). This position has been adopted, despite the usual preference for a judicial determination of probable cause prior to a search, in part because of the diminished expectation of privacy in an automobile and in part because of the inherent mobility of the automobile. When probable cause exists, the courts have not required officers merely to stop vehicles and detain them pending the issuance of a search warrant. Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975).

We therefore conclude that Trooper Warner’s action in having defendants’ vehicle stopped and in opening the trunk of the vehicle was lawful despite the absence of prior judicial approval.

The warrantless search of the suitcase presents a more difficult problem. In Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), the court declared illegal the warrantless search of a suitcase taken from the trunk of a taxicab that had been legally stopped, despite the fact that the officers had probable cause to believe the suitcase contained marijuana. The court refused to extend the rationale of the Carroll and Chambers cases to luggage being carried in a vehicle.

In the Sanders case the officers had probable cause to believe that defendant would arrive at the Little Rock Airport with a green suitcase containing marijuana. They saw the defendant disembark from an aircraft carrying a green suitcase and leave in a taxi. They then stopped the taxi and seized and searched the suitcase. The court found that “a suitcase taken from an automobile stopped on the highway is not necessarily attended by any lesser expectation of privacy than is associated with luggage taken from other locations.” Once the suitcase was immobilized and taken into police custody, the court found no justification or greater need for a warrantless search of luggage taken from an automobile than of luggage taken from any other location. See Chadwick v. United States, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).

In a concurring opinion in the Sanders case, Chief Justice Burger opined that the decision did not bar the warrantless search of luggage located in a vehicle under all circumstances. The opinion noted, for example, the case in which officers have probable cause to believe that the contraband is located somewhere within a stopped vehicle, but do not know whether it is located in a piece of luggage, or in the glove compartment, or elsewhere in the car.

In the present case, although the officers conducting the surveillance (based on a tip) had seen the suitcase taken into Lingefelt’s trailer and later replaced in the trunk, the tip did not directly mention or describe a suitcase, as did the tip in the Sanders case, but rather described a blue and white Monte Carlo. The only place in the vehicle that the officers in the Sanders case had probable cause to believe that marijuana might be found was in the defendant’s green suitcase, and, indeed, the officers arguably did not have probable cause to seize the taxicab and take it to the station. Here, the officers had probable cause to search the entire vehicle, and although the suitcase was one likely place to look, the probable cause was not focused on a particular location within the vehicle, including the suitcase, and the taking of the suitcase to the station to obtain a warrant before the search (as suggested in the Sanders decision) would not have removed the exigency of mobility associated with the automobile.

Thus, we distinguish the Sanders ease, in which the officers had probable cause only to search the suitcase and in which exigent circumstances no longer existed after the suitcase was taken into custody, from this case, in which exigent circumstances continued to exist, whether or not the officers found marijuana in the suitcase. Furthermore, the officers in this case clearly had probable cause to search the entirety (including the luggage, the trunk, the glove compartment, and other areas) of the vehicle they had legally stopped, while the officers in the Sanders case arguably did not have probable cause to search a public taxicab apparently unrelated to defendant or to the tip from the confidential informer.

There is still another reason to find that the Sanders decision does not require suppression of the marijuana seized from the Monte Carlo. The search here took place in March of 1977, over two years before Sanders was decided. Cases extending the exclusionary rule should not be given retroactive effect to bar admissibility of evidence which officers seized in good faith relying on existing standards. See United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1974). Several courts have refused to order exclusion of evidence when, as here, the search of an article or luggage occurred prior to the date of the Sanders and Chadwick decisions. See Kimmer v. State, 598 S.W.2d 403 (Tex.Cr.App.1979); United States v. Calandrella, 605 F.2d 236 (6th Cir. 1979); United States v. Stewart, 595 F.2d 500 (9th Cir. 1979); and United States v. Montgomery, 538 F.2d 311 (5th Cir. 1977).

For the foregoing reasons, the convictions and sentences are affirmed.

AFFIRMED.

DIXON, C. J., concurs with reasons.

CALOGERO, J., concurs and assigns reasons.

WATSON, J., concurs in the result.

DENNIS, J., dissents with reasons.

DIXON, Chief Justice

(concurring).

I respectfully concur in the result, because there was probable cause to search both the truck and the automobile after the police saw the transfer of the material taken from the car. There was therefore no illegally seized evidence, and no possibly illegal detention of the automobile.

CALOGERO, Justice,

concurring.

I concur because I agree that Sanders and Chadwick, supra, are not to be given retroactive application. I do, however, find them indistinguishable from the instant case.

On Application for Rehearing

PER CURIAM.

The application for rehearing correctly points out that we erroneously listed the date of the seizure as March 2, 1977, when the seizure in fact occurred on March 2, 1979. The seizure was therefore before the Sanders decision, but after the Chadwick decision.

Nevertheless, the non-retroactivity of the Chadwick and Chambers decisions was only an alternate ground for affirming the denial of the motion to suppress, and the validity of the other grounds still stands. Moreover, the fact that this search occurred after the Chadwick decision is not of great significance, since the rationale of the Chambers decision was unaffected by the Chadwick decision. See United States v. Ochs, 595 F.2d 1247 (2d Cir. 1979). Compare United States v. Dien, 609 F.2d 1038 (2d Cir. 1979), on rehearing, 615 F.2d 10 (2d Cir. 1980). Therefore, at the time of this search the Chambers rationale had not been limited or modified, and the search pursuant to that rationale was valid.

The application for rehearing is denied.

APPLICATION DENIED.

CALOGERO, J., dissents with reasons.

DENNIS, J., would grant a rehearing.

CALOGERO, Justice,

dissenting.

Relying upon the majority’s assertion that the search occurred on March 2, 1977, prior to United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), I concurred in the majority expression that Chadwick not be given retroactive application. In light of the correction in the date of the search and the effect of the Chadwick case, this case being indistinguishable from Chadwick, I am of the opinion that defendants’ convictions should be reversed. In Chadwick, the United States Supreme Court stressed that luggage is intended as a repository of personal effects and that the contents are not open to public view. Consequently, a person’s expectation of privacy regarding personal luggage is substantially greater than in an automobile. When no exigency is shown to exist, supporting the need for an immediate search, a warrant is required to validate the search of luggage. 433 U.S. at 13-15, 97 S.Ct. at 2484-2485.

For this reason, I would grant a rehearing.

      . The males were frisked by the officers. No evidence was produced by the frisk, and its validity is not, an issue here.

      . As the court held in the Jernigan case, above, even tips which are deficient under the standards of Aguilar v. Texas, above, and State v. Paciera, above, may justify an investigatory stop if the tip carries sufficient “indicia of reliability, such as specificity of the information and corroboration by independent police work”. 377 So.2d at 1225.

      . If the court were dealing solely with the Fourth Amendment standards, there would be no question concerning the appropriateness of use of the marijuana discovered in Lingefelt’s truck in connection with the defendants’ case either to support guilt or to establish probable cause. See Rawlings v. Kentucky, - U.S. -, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

      .The marijuana found in Lingefelt’s truck was introduced at defendants’ trial without objection. Thus, its admissibility to prove guilt is not before the court on this appeal.

      . In cases of warrantless searches the state bears the burden of proving the validity of the search and hence the admissibility of evidence seized pursuant to the search. State v. Franklin, 353 So.2d 1315 (La. 1977).

      .The Sanders decision discussed and recognized that the societal cost of an inflexible requirement to obtain a warrant to search a legally stopped automobile outweighed the value of presenting probable cause to a neutral magistrate, stating:
      “.. . In Chambers, if the Court had required seizure and holding of the vehicle, it would have imposed a constitutional requirement upon police departments of all sizes around the country to have available the people and equipment necessary to transport impounded automobiles to some central location until warrants could be secured. Moreover, once seized automobiles were taken from the highway the police would be responsible for providing some appropriate location where they .could be kept, with due regard to the safety of vehicles and their contents, until a magistrate rules on the application for a warrant. Such a constitutional requirement therefore would have imposed severe, even impossible, burdens on many police departments.”

      . Arkansas v. Sanders, above, was decided on June 20, 1979.

      . Chadwick v. United States, above, was decided on June 21, 1977, almost four months after the date of this search. The Chadwick case involved a warrantless search of a footlocker taken into police custody. Although officers had probable cause to believe marijuana was contained in the footlocker, the court found no justification for their failure to obtain prior judicial approval before opening the locker to seize its contents. Whether the Chadwick decision may have forecast the decision in Sanders is of no consequence here because the search here occurred before both decisions.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Charley BROWN, Jr. STATE of Louisiana v. Vernon BERNARD.
    Nos. 67236, 67738.
    Supreme Court of Louisiana.
    Sept. 19, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Richard J. Petre, Jr., Jeffery Bassett, Asst. Dist. Attys., for plaintiff-relator in both cases.
    Roy Raspanti, New Orleans, for defendant-respondent, Charley Brown, Jr.
    Milton Masinter, New Orleans, for defendant-respondent, Vernon Bernard.
   CALOGERO, Justice.

This case presents the question whether R.S. 40:969(C) making criminal the “unknowing” as well as the intentional possession of Talwin is constitutional. Charley Brown, Jr., was charged by bill of information with possession of pentazocine (Talwin) in violation of R.S. 40:969(C). He filed a motion to quash the information alleging the unconstitutionality of the statute. The trial judge granted the motion to quash.

Defendant Vernon Bernard was likewise charged by bill of information with possession of Talwin in violation of the same statute. He also filed a motion to quash based upon the unconstitutionality of the statute and his motion was granted. We granted writs in both cases to determine the correctness of the rulings and consolidated the two cases in this Court.

The statute which defendants were charged with violating makes it unlawful for any person “unknowingly or intentionally” to possess a controlled dangerous substance classified in Schedule IV except under circumstances not applicable here. The bills of information charging defendants read that each defendant did “wilfully and unlawfully” possess the controlled substance.

Defendants’ motions to quash challenged the statute as overbroad in making the unknowing possession of the substance criminal.

At the threshold, we must determine whether defendants have standing to challenge a portion of the statute with which they have not been charged. As a general rule a party does not have standing to challenge the constitutionality of a statute unless the application of that statute adversely affects him. The state argues that, because the bills of information charge only “wilful” possession, defendants do not have standing to challenge the “unknowing” portion of the statute. Despite the language of the bill of information, evidence at trial could prove violation of R.S. 40:969(C) if the state only establishes that defendants possessed the drug unknowingly. C.Cr.P. art. 488 provides that when there is a variance between the allegations of an indictment and the evidence offered in support thereof, the court may order the indictment amended in respect to the variance, and then admit the evidence. A fair application of that article would seem to allow the state, upon not proving “willful” possession, but proving conduct which nevertheless violates the statute, to conform the information to the proof by deleting “wilfully” from the bill. Furthermore, if defendants seek to defend on the basis of unknowing possession of the substance, they are admitting guilt under the statute as written. Thus, it seems clear that defendants do not raise merely hypothetically adverse consequences flowing from the challenged language of the statute. There is more than a remote possibility that defendants could be found guilty under that portion of the statute which they argue is unconstitutional. Consequently, defendants do have standing to challenge the statute as overbroad in making criminal the “unknowing” possession of Schedule IV substances.

Having determined that defendants do have standing, we must consider their allegation that the statute is overbroad in its use of the word “unknowing.” Initially, we observe the familiar proposition that “[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.” Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 862, 95 L.Ed. 1137 (1951). In a much cited passage from Morissette v. United States, 342 U.S. 246, 250-251, 72 S.Ct. 240, 243, 244, 96 L.Ed. 288 (1952), the United States Supreme Court observed:

“The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory “But I didn’t mean to,” and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone’s sweeping statement that to constitute any crime there must first be a ‘vicious will’.”

The “vicious will” has been replaced with less colorful descriptions of the mental state required for a criminal act; nevertheless, intent generally remains an indispensable element of a criminal offense.

Although strict liability offenses do exist in the criminal law and do not in all instances offend constitutional requirements, these are limited in number and of a nature different from the statute being challenged here. For example, the law making it a crime for one to receive or possess a firearm which is not registered to him in the National Firearm Registration and Transfer Record was upheld because “one would hardly be surprised to learn that possession of hand grenades is not an innocent act. They are highly dangerous offensive weapons...” United States v. Freed, 401 U.S. 601, 609, 91 S.Ct. 1112, 1118, 28 L.Ed.2d 356 (1971). Thus, even in Freed, the defendants were aware of the nature of the instrumentality they possessed. Conversely, the statute at issue here criminalizes unknowing possessing. It requires little imagination to visualize a situation in which a third party hands the controlled substance to an .unknowing individual who then can be charged with and subsequently convicted for violation of R.S. 40:969(C) without ever being aware of the nature of the substance he was given. A situation such as the above does indeed offend the conscious. The “unknowing” possession of a dangerous drug cannot be made criminal.

We next examine the statute to discover whether it must be declared invalid in its entirety, or whether the offensive portion (the word “unknowingly”) can be severed from the remainder of the statute. The history of R.S. 40:969(C) reveals that the word “unknowingly” was added to the statute by the legislature in 1973. Prior to that time, the statute condemned only knowing or intentional possession of a Schedule IV substance. Acts 1973, No. 207, which added the offensive language, contains a sever-ability clause in Section 11:

“If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items, or applications of this Act which can be given effect without the invalid provision, items or applications, and to this end the provisions of this Act are hereby declared severable.”

It is a rule of law that the presence of a severability provision in a law is an admonition to the court of the intention that all valid provisions be retained in full effect, even though some provisions thereof be held invalid, and hence creates a presumption of severability in fact. State v. City of Baton Rouge, 215 La. 315, 40 So.2d 477 (1949). Reading the remainder of the statute with the offending part deleted shows that the valid portion is independent of the invalid portion. The remaining portion is capable of enforcement without the unconstitutional provision and is certainly reasonable in light of the entire act as it was originally drafted. Indeed, the legislature did pass this very statute without the offensive language. Acts 1972, No. 634; Acts 1970, No. 457. Where, as here, a single word is found offensive and that word was added to the statute as part of an act containing a severability clause, that word alone may be declared invalid and the remainder of the statute held to be constitutional.

Decree

Accordingly, we hold that the portion of the statute making it illegal “unknowingly” to possess a Schedule IV substance is unconstitutional. The remainder of the statute is valid and the trial courts’ rulings sustaining the defendants’ motions to quash are reversed and the cases remanded to the trial court for further proceedings in accordance with the views expressed herein.

REVERSED AND REMANDED.

      . State v. Brown, 384 So.2d 803 (La.1980); State v. Bernard, 385 So.2d 786 (La.1980).

      . This act amended several sections of the narcotics law, inter alia, adding “unknowingly” to both R.S. 40:969(C) and R.S. 40:970(C). Two other changes were made in R.S. 40:969(C).


author: LEMMON, Justice. WATSON, Justice,

text:
    LOUISIANA STATE BAR ASSOCIATION v. John B. LEVY.
    No. 65156.
    Supreme Court of Louisiana.
    Oct. 6, 1980.

      Thomas O. Collins, Jr., New Orleans, Sam J. D’Amico, Baton Rouge, Roland J. Achee, Shreveport, Wood Brown, III, New Orleans, Leonard Führer, Alexandria, Harold J. Lamy, New Orleans, Edgar H. Lancaster, Jr., Tallulah, Alfred S. Landry, New Iberia, A. Russell Roberts, Metairie, John B. Sco-field, Lake Charles, for plaintiff-applicant.
    John R. Martzell, Martzell, Montero & Mamothe, New Orleans, for respondent.
   LEMMON, Justice.

This is a disciplinary proceeding instituted by the Louisiana State Bar Association, arising out of respondent’s conviction in federal court of transferring two checks in the total amount of $100,000 in interstate commerce with knowledge that the money represented by the checks had been secured from an interim lending agency by fraud in violation of 18 U.S.C. § 2314.

At the time of the transaction in question respondent was not actively engaging in the practice of law, but was an officer of Commercial Leasing and Financing, a corporation then engaged in constructing a $2,000,-000 condominium complex. According to the federal judge’s statement in ruling on post-trial motions, the "project was severely undercapitalized from the outset”.

Commercial’s loan agreement with the lending agency provided a procedure whereby the general contractor submitted periodic invoices of work completed and Commercial forwarded the invoices with a partial draw request to the lending agency. Prior to March, 1974 Commercial made seven such draws and disbursed funds to the contractor, but because of lack of capital and a private agreement with the contractor, Commercial paid only part of the amount then due to the contractor from the proceeds of those draws.

On March 19, 1974, Commercial, without notice to the financing agent, conveyed title to the real estate to Marbane Investments.

On March 29, 1974 Commercial sent draw request No. 8 for $160,000 to the financing agent. Between March 29 and April 11 respondent drew checks totaling $271,000 payable to Marbane on Commercial’s Beaumont, Texas bank account. On April 4 and 5 respondent drew two checks (which were the subject of the federal charges) in the amount of $45,000 and $55,000 respectively on Commercial’s Lafayette, Louisiana bank account and deposited the checks in Commercial’s Beaumont account. The two checks cleared through normal banking channels and were transmitted back to Louisiana in interstate commerce. Then, between April 11 and April 18, more than $200,000 was transmitted from Marbane’s account back to Commercial’s account.

The evidence at the federal trial, while not showing the ultimate disposition of the funds represented by the $45,000 and $55,-000 checks, did establish the contractor received only $9,000 of the $160,000 due under the terms of the draw request.

Respondent was convicted of violating the cited federal statute by transporting securities or money, known to be fraudulently obtained, in interstate commerce, apparently (as observed by the trial judge in ruling on post-trial motions) because the jury believed respondent intended, when submitting the draw request, to pay the funds to Marbane instead of to the contractor. Thus, the funds that were represented by the two checks in question were found to constitute securities or money obtained by fraud. The violation constituted a felony under federal law (although the underlying misconduct of using the proceeds of an interim financing draw for a purpose other than settlement of claims under the contract would have been a violation under state law of R.S. 14:202, a misdemeanor).

The trial judge sentenced respondent to serve one year and a day on each count, the sentences to run concurrently. The court of appeal affirmed, observing “[t]his is undoubtedly a close case”. United States v. Levy, 579 F.2d 1332 (5th Cir. 1978).

Respondent thereafter served three and one-half months, at which time the sentencing judge reduced the sentence to time served. Respondent was then immediately released, without probation,' in July, 1979.

The Bar Association, although a hearing had been held, had not recommended suspension pending appeal. After the conviction was affirmed, the Bar Association instituted this proceeding. A commissioner appointed by this court conducted a hearing in March, 1980 and filed a report, finding that disciplinary action was warranted and recommending a public reprimand and a six-month suspension from the practice of law. Each party filed an opposition to the report, contesting only the appropriateness of the discipline recommended.

At the commissioner’s hearing respondent presented evidence of numerous mitigating circumstances not inconsistent with the essential elements of the crime. See Articles of Incorporation, Art. XV, § 8(7)(d). We now discuss the mitigating circumstances presented by respondent in order to determine the extent of the discipline to be imposed.

As the commissioner noted, the crime was not directly connected with the practice of law. While respondent was a lawyer at the time and had the duty to obey and uphold all laws, we simply note that this offense did not involve misuse of his license to practice law.

Another consideration is the attitude of the federal courts toward this particular case. The federal trial judge characterized the circumstantial evidence of intent as “weak”, but held the evidence sufficient to raise a jury question. The federal appellate court also observed this was a “close case”. Although the Bar Association points out the closeness refers primarily to federal jurisdiction, it is significant to note respondent’s conduct was prosecutable under Louisiana law only as a misdemeanor, and the applicability of the federal felony statute is extremely significant as to the seriousness of the crime.

A significant mitigating circumstance is that no money came into respondent’s possession in the transfer of funds which resulted in respondent’s conviction. While the numerous transfers around that time may have been a “check kiting” scheme to divert attention from financial deficiencies, the transfer which formed the basis of the conviction was simply a moving of corporate funds from one corporate bank account to another. Neither the owner, the contractor, nor the lender suffered any loss as a result of transferring funds from one corporate account to another.

The misconduct in this case occurred, not in respondent’s transferring corporate funds from one corporate bank account to another (the transfer in interstate commerce being the transmission of the checks back to the Louisiana drawee bank) or even in requesting the lending agency to pay a draw (the work had been performed and the payment was due under the contract), but in respondent’s failure to pay the proceeds of the draw request to the contractor under the terms of the contract. While respondent undoubtedly should have paid the funds to the contractor and exercised poor business judgment (and incurred civil and criminal misdemeanor liability) by applying the funds elsewhere in the underca-pitalized project, the federal felony violation did not flow from this misconduct, but attached only after respondent shifted corporate funds.

The impact of these mitigating circumstances was reflected in the light sentence imposed by the federal court (maximum sentence was ten years) and the subsequent reduction of that sentence to time served. The most important mitigating circumstance, however, was respondent’s voluntary withdrawal from the practice of law during this proceeding, although the Bar Association did not request suspension and although respondent had no other means of livelihood to support his five children (three in college and one in a school for retarded children). Respondent voluntarily limited himself to doing research for other attorneys in a paralegal capacity, explaining:

“[I]n deference to what the Bar Association has seen fit to do for me in allowing me up until this time to be not suspended, and in deference to the proceedings and the dignity of the Bar Association and the Court, I have more or less imposed an exile upon myself until such time as the matter can be satisfactorily cleared up by all parties concerned and to the satisfaction of the Court and the Bar Association; and I think it’s in keeping with the proper demeanor that is to be expected of a professional man and the courtesy that I think I owe to the Bench and Bar.”

When all of these mitigating circumstances are considered, as well as the facts that respondent served a prison sentence, suffered a personal financial loss of $80,000 in the project (which was actually completed), suffered a further loss of professional income from the self-imposed exile, and displayed the commendable attitude of remorse and respect by voluntarily refraining from practicing law, we have decided to impose a suspension (as suggested in brief by respondent’s counsel) of three and one-half months, the amount of time the federal judge (who was most familiar with the overall circumstances) decided was sufficient incarceration for the overall conduct involved.

Accordingly, it is ordered that John Bernard Levy be suspended from the practice of law in Louisiana for a period of three and one-half months from the date of this decree. All costs are assessed to respondent.

SUSPENSION ORDERED.

WATSON, J., dissents and assigns reasons.

WATSON, Justice,

dissenting.

A public reprimand would be adequate disciplinary procedure, considering the totality of the circumstances, particularly the fact that the violation in question would have been a misdemeanor under Louisiana law, as noted by the majority. See R.S. 14:202.

Therefore, I respectfully dissent from the imposition of a suspension.

      . Respondent was not a shareholder, but had an interest dependent upon the success of the project.

      . There were insufficient funds in Commercial’s Lafayette bank account to cover those two checks without using the proceeds of draw request No. 8. The proceeds of the draw request were received on April 10 and deposited into Commercial’s Lafayette bank account.

      . Respondent’s argument, apparently rejected by the jury, was that he was entitled to pay the funds to Marbane, who was record owner of the real estate when the checks were written.

      . On this point respondent contended that if any security was obtained by fraud, it was the $160,000 check for draw No. 8 and not the two checks upon which the charge was based.

      . Under federal law this sentence permitted parole consideration.

      . Section 8 is applicable when a respondent has been convicted of a crime. If the Committee on Professional Responsibility determines the crime is a serious crime reflecting on the attorney’s moral fitness to practice law, this court may suspend the attorney pending the outcome of the disciplinary proceedings. After all appeals from the conviction are concluded, the conviction is conclusive evidence of guilt of the crime, and the sole issue to be determined is whether the crime warrants discipline, and if so, the extent thereof. At the hearing the respondent may offer evidence only of mitigating circumstances not inconsistent with the essential elements of the crime.


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

text:
    STATE of Louisiana v. Lester Glen PASTER.
    No. 66471.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Lavalle B. Salo-mon, Asst. Dist. Atty., for plaintiff-appel-lee.
    Gilmer P. Hingle, Smith & Hingle, Monroe, for defendant-appellant.
   DENNIS, Justice.

This is defendant’s second appeal raising the question of whether a police officer used false information in his affidavit to obtain a search warrant. ■ On our first review, we concluded that the defendant had been deprived of his right to elicit testimony to show that the affidavit contains false statements. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); State v. Rey, 351 So.2d 489 (La. 1977). Accordingly, we remanded the case for an evidentiary hearing for this purpose, with the following instructions:

“ * * * At that hearing, defendant will be permitted to attack the allegations in the affidavit and the veracity of the affiant, and may show, if he can, that it was impossible for the affidavit to be true. After defendant has produced his evidence, and if he carries his burden of establishing by a preponderance of the evidence, Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), that the affidavit contains false statements, then the burden of proof will shift to the state to prove that the allegations in the affidavit are true, or that the informant misrepresented the situation but the affiant reasonably believed him and thus had probable cause.
After both the defendant and the state have presented their evidence the trial court must decide whether the statements were false, and, if so, whether the affiant intentionally or unintentionally included them in the affidavit or whether the informant falsified the information but the affiant reasonably believed him and thus had probable cause. If the trial court finds that the information was false and the misrepresentations were intentionally made by the affiant, then the warrant should be quashed; but if they were unintentionally made by the affiant, then the warrant is tested for probable cause without reference to the incorrect facts. State v. Rey, 351 So.2d 489, 491-492 (La.1977). If the state carries its burden of proving the information was true or that the affiant reasonably believed his informant’s information then the trial court should find that the warrant was issued based on probable cause.” [footnotes omitted] State v. Paster, 373 So.2d 170, 174 (La.1979).

Apparently the trial judge misunderstood our instructions, because at the evidentiary hearing he sustained a prosecution objection to the introduction of evidence by defendant to show that the affidavit contains false statements. Our instructions did not restrict defendant to an attack upon the allegations in the affidavit complained of in his first appeal. The case was remanded and a hearing was ordered because a genuine issue has been raised as to the affidavit’s veracity. In the interest of justice, the defendant’s right to show that the affidavit was based on false information cannot be limited on remand by his initial pleadings or assignment of error. If the prosecution is genuinely surprised because of reliance on the allegations in defendant’s motion to suppress, its proper relief is a continuance, not exclusion of defendant’s evidence. Accordingly, the case is again remanded for further proceedings consistent with this opinion and our initial opinion.

REMANDED.

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

MARCUS, Justice

(dissenting).

I dissent for reasons assigned in my dissent on our first review. See State v. Paster, 373 So.2d 170 (La.1979).

BLANCHE, Justice

(dissenting).

I respectfully dissent. See State v. Paster, 373 So.2d 170 (La.1979).


author: BLANCHE, Justice. LEMMON, Justice, DENNIS, Justice,

text:
    STATE of Louisiana v. Arthur J. PACKARD.
    No. 66829.
    Supreme Court of Louisiana.
    Oct. 6, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Rowley, Dist. Atty., Robert Klees, Glenn E. Diaz, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Loyola Law School Clinic, William J. O’Hara, III, New Orleans, Supervising Atty., Barbara Stavis, Student Practitioners, John M. Lawrence, New Orleans, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Arthur J. Packard, following an adverse ruling on his motion to suppress evidence, pleaded guilty to possession of marijuana with intent to distribute, La.R.S. 40:966. He reserved his right to appeal pursuant to State v. Crosby, 338 So.2d 584 (La.1976). The trial court sentenced the defendant to serve one year at the Department of Corrections. The defendant now appeals on the basis of one assignment of error; that is, the trial court erred in denying his motion to suppress the evidence. We find no merit to this assignment and confirm the defendant’s conviction and sentence.

On August 7, 1977, two officers from the St. Bernard Parish Sheriff’s Office went to the home of Mrs. Katherine Packard, the defendant’s mother, with a warrant for her son’s arrest. The defendant was not at home; rather, the officers were met at the front door by his mother. The officers expressed to Mrs. Packard their belief that her son had narcotics on the premises and, though they did not have a search warrant, they desired to search his bedroom.

The officers testified that, while talking to Mrs. Packard in the front of the house, defendant’s wife, Angel Packard, who shared the bedroom with defendant, was in the room but remained silent. They further testified that when they asked Mrs. Packard if Arthur and Angel were paying rent, she said they were not. At the hearing on defendant’s motion to suppress, Mrs. Packard denied this, saying that Arthur and Angel paid $35 per week rent. The trial judge obviously believed the officers rather than the mother, just as the trial court believed the police in State v. Bartley, 329 So.2d 431 (La.1976) over the biased witness who granted consent to search.

After talking with Mrs. Packard, the officers asked her to read and sign a consent form, which she did. They then proceeded with her to the defendant’s bedroom, conducted the search, and found thirteen plastic bags of marijuana in the dresser drawer of defendant’s bedroom.

Assignment of Error Number 1

The sole issue in this case is whether Mrs. Packard could consent to a search of her son’s bedroom.

Unreasonable searches and seizures are prohibited by the Fourth and Fourteenth Amendments to the United States Constitution and by the Louisiana Constitution of 1974, art. 1, § 5. A search conducted without a warrant is per se unreasonable unless it falls within one of the specifically delineated exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Williams, 366 So.2d 1369 (La.1978). One of these exceptions is a search conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Morris, 340 So.2d 195 (La.1976).

Mrs. Packard did voluntarily give her consent as required by Schneckloth, supra, to the police officers to search the defendant’s room. She signed the search consent form after having been told of its contents, reading it, and having been told that she did not have to comply with the officers’ request. Though she testified she was on medication for a back injury, nervous, and afraid the officers would get a search warrant, she noted specifically that no threats or coercion were used to obtain her signature and consent.

Mrs. Packard could voluntarily consent to the search of her son’s room. We have previously held that, absent unusual circumstances, a parent possesses at least common authority over the residence occupied by the parent and his child. State v. Wagster, 361 So.2d 849 (La.1978). The defendant’s situation is not unusual in this case as several married persons live with their parents, and to have a lock on one’s door is a common occurrence. The defendant had to watch television in the common living room, eat in the kitchen, did not have to pay rent and, once separated, continued to live at home in his bedroom. Since no unusual circumstances are presented, the mother could exercise her common authority over the defendant’s bedroom. In Wag-ster, supra, this Court found the father’s consent to search his 19 year old son’s van was permissible. Here, the Court sees just as clearly the mother’s right of access to her son’s bedroom and thus, his assumption of the risk that she might allow the bedroom to be searched. State v. Cook, 345 So.2d 29 (La.1977).

Mrs. Packard was the co-owner of the house and, arguably, had access to her son’s room just as she did to the rooms of the other five children. She could, therefore, consent to the search. State v. Johnson, 319 So.2d 786 (La.1975) and State v. Broussard, 312 So.2d 325 (La.1975). It is not as though she were a distant landlord, Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961), or a night hotel clerk, Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964).

Furthermore, the defendant’s mother believed she exercised such authority over the room occupied by the defendant, as revealed by her actions. The trial judge felt she had this belief, though she denied it, and it would be erroneous for us to substitute our interpretation when he has judged her credibility and arrived at his conclusion supported by reasonable facts.

An additional factor to consider is the role of Angel Packard in this scenario. She was present when the police arrived, present when her mother-in-law signed the form, and present while the room was searched. Since she lived in the room with the defendant, she obviously had the mutual use of the property. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1942). Agreeably, her silence alone cannot be seen as a voluntary consent on her part to have the room searched. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); State v. Fontenot, 383 So.2d 365 (La.1980). However, her silence in front of the police officers and her mother-in-law certainly would reaffirm the defendant’s mother’s belief that she could grant the consent and the similar belief of the police officers.

Viewing the totality of the circumstances to see if a third party (the mother) could consent to the search convinces us that this consent was properly given and could have been given. Here, Mrs. Packard believed she had the power to consent as she indeed did; the police believed she was the proper person to consent as she co-owns the house and no rent was being paid; and the defendant’s wife, who shared the bedroom with him, idly watched as her mother-in-law consented and the police searched her bedroom. These factors reveal that the mother did have the authority to consent to the search and that it was properly conducted.

The defendant’s assignment of error is without merit and his conviction and sentence are affirmed.

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

CALOGERO, J., dissents.

DENNIS, J., dissents with reasons.

DIXON, C. J., dissents for reasons given by DENNIS, J.

LEMMON, Justice,

concurring.

The facts of this case belie a conclusion that defendant’s mother had common authority over the area to be searched, and therefore she could not alone give valid consent to the search. In order to find the search valid, it is necessary to consider the effect of the presence of defendant’s wife when his mother gave the consent.

As a general rule, consent to search cannot be implied from silence, because a reasonable person, intimidated by the aura of police authority, may yield to a search without voluntarily consenting to it. In this case, however, the search was not conducted merely on the consent that might be implied by the wife’s presence. The police conducted the search both on the basis of the consent given by defendant’s mother (who owned the house) and the wife’s apparent acquiescence in that consent. This combination of circumstances makes the warrantless search reasonable and therefore constitutionally valid.

DENNIS, Justice,

dissenting.

I respectfully dissent. I do not find that Mrs. Katherine Packard had common authority over her son’s bedroom and would rule that the warrantless search of the bedroom was invalid.

I view the facts of this case as characteristic of the circumstances recognized in Wags ter where a parent does not have common authority over a residence occupied by both parent and child. Although the defendant resided in his mother’s house, he was a twenty-one year old married man who maintained a separate marital dwelling within this house. The defendant’s mother testified without dispute that the room used by Arthur and Angel Packard had a lock on it, for which the couple had the only keys. Furthermore, no one was allowed in the room without the defendant’s permission. The defendant and his wife did not frequent other parts of the house, and kept the food which they purchased in a kitchen cabinet separated from food available to others living in the house. This amounts to as separate a living unit as was possible without a physical remodeling of the residence.

To support its conclusion of mutual access to the bedroom, the majority opinion introduces the irrelevant issue of the mother’s belief in her power to consent to the search. The authority of a third party to consent to a search is not tested by what a third party might believe, but rather is founded upon the facts of mutual access and control, so that it is reasonable to recognize that the person may permit the search in his own right, and that the other co-inhabitants have assumed the risk that the person might permit the common area to be searched. United States v. Matlock, 415 U.S. 164, 171 n.7, 93 S.Ct. 988, 993 n.7, 39 L.Ed.2d 242, 250 n.7. Katherine Packard’s testimony reveals that she signed the consent form because she was unclear whether she had such access as a matter of law, not because of the possession of mutual access or control grounded on the facts of her son’s living arrangement within her house, or the fact of Angel’s silence under the circumstances. Obviously, her impression that she had the legal authority came from the officers’ presence as representatives of the law who came to her house without a warrant and dealt only with her as owner of the house. The officers’ own testimony demonstrates that Angel Packard’s permission to search was never solicited, and that they did not believe that Angel even possessed the authority to consent to the search. If anything, Angel’s silence under the circumstances could have only reinforced Mrs. Packard’s impression that the officers believed that she possessed the power to consent as a matter of law. Under the majority’s reasoning, police officers are allowed to persuade a person who has no legal training that he has the power to consent to a search of another’s property and then use such consent to support the validity of a search.

Nor can I find that the officers conducted a sufficient inquiry into the defendant’s living arrangement to form any sort of reasonable belief on their part that Katherine Packard could consent to the search. The crucial determination was one of joint access or control. The officers were satisfied with asking the defendant’s mother whether her son paid rent; neither she nor the defendant’s wife was asked anything else regarding the married couple’s place in the household. While payment of rent is a definite factor to be considered when ascertaining the right of a third party to consent to a search, it should not be a determining factor. Even if rent is being paid, other facts may exist which could establish that the rental agreement does not provide for an area of exclusive possession. United States v. DiPrima, 472 F.2d 550 (1st Cir. 1973); United States v. Mix, 446 F.2d 615 (5th Cir. 1971); State v. Moreno, 27 Ariz.App. 460, 556 P.2d 14 (1976); LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 8.4 p. 731 (1978). Conversely, even if no rent is paid, a minimum inquiry into other circumstances surrounding the living arrangement could establish an area of exclusive possession. Such inquiry is lacking in this case.


author: WATSON, Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Kenneth Wayne WILLIAMS.
    No. 66961.
    Supreme Court of Louisiana.
    Oct. 6, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Lavalle B. Salomon, Asst. Dist. Atty., for plaintiff-appellee.
    Smith & Hingle, Gilmer P. Hingle, Monroe, for defendant-appellant.
   WATSON, Justice.

Defendant, Kenneth Wayne Williams, was convicted by a twelve person jury of attempted simple burglary of an inhabited dwelling. LSA-R.S. 14:62.2 and LSA-R.S. 14:27. Defendant was sentenced to five years at hard labor and has appealed his conviction and sentence, relying on twenty-one assignments of error. Only the first of these assignments of error warrants discussion; the others are completely without merit.

FACTS:

Donna Bethea testified that her husband Alfred went to work around 6:30 A.M. on May 30, 1979. Alfred worked out-doors. She was expecting his return because it had started raining. The trailer door was therefore left unlocked. She read in the bedroom for approximately fifteen minutes, heard a car outside and got up to greet her husband. She saw a man running down the hallway who jumped out the back door. Alfred’s sister, Lisa Bethea, sleeping on the living room couch, was awakened by her sister-in-law’s screams. The intruder was Williams, who lived in another trailer in the same park. Donna was familiar with his appearance because her husband had jump-started the car he used and had sold his roommate a battery. Williams was described as wearing a dark blue uniform shirt and pants. Donna’s purse was lying open on the living room floor with the contents spilled out and disarranged. Approximately $90 to $100 was missing from the wallet. One of the neighbors called the police and they arrived promptly. Alfred Bethea observed a green Pontiac parked outside his trailer and also saw Williams fleeing the scene. The ear belonged to defendant’s roommate, Ray Wyatt. Alfred was so angry and upset after he talked to his wife that he knocked all of the glass out of the green Pontiac. Defendant Williams appeared on the scene not long after the police arrived wearing rust colored clothes. A search revealed a damp navy blue shirt and pants in the trailer shared by Williams and Wyatt. No money was found.

ASSIGNMENT OF ERROR NUMBER ONE

Defense counsel filed a motion for production asking for the record of convictions on State’s witnesses Donna and Alfred Be-thea. The State did not respond to the motion. At a hearing the defense contended that it needed the conviction records for impeachment purposes, but the trial court ruled that they were not subject to discovery. However, he noted that:

“Well, at this point I’m going to deny it, but I am not going to ... say that there’s no way that you can get that information. I think that there is a way that you can get that information at the proper time, that you can ask for it and ... in fact, I would let you have it, at this point, I think not.” (Tr. 152)

In his per curiam to this assignment, the trial court indicated that, at trial, if a state witness had denied a conviction and there was a “R.A.P. Sheet”, he would have ordered its production. (Tr. 98)

State v. Harvey, 358 So.2d 1224 (La., 1978) held that the prior criminal records of prospective State witnesses were exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, State v. Harvey, 358 So.2d 1224 (La., 1978); State v. May, 339 So.2d 764 (La., 1976); and Brady, supra, were all concerned with impeaching the credibility of those involved with the defendant in commission of the crimes. In those situations, the requested information may have been relevant and material for impeachment purposes. However, this defendant was not seeking to impeach the testimony of a co-conspirator, but that of the complaining victims of the crime. Even if this couple had criminal convictions, which is not indicated, that evidence would not be relevant to the question of Williams’ guilt.

It is significant that the trial court here, in denying the information, stated, in effect, that the request was premature. See State v. Holmes, 347 So.2d 221 (La., 1977). At trial, Donna Bethea was not questioned about prior convictions. Alfred Bethea admitted to being convicted of several traffic violations, but denied any felony convictions. At this point, the defense did not renew its request for a conviction record on Alfred Bethea. If defense counsel disbelieved Alfred Bethea’s denial of previous felony convictions, he should have moved for disclosure of his conviction record at that time.

Further, even if defendant had been entitled to the requested information prior to trial, and there had been a record on Alfred Bethea, the outcome of the trial would not have been affected. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). The unimpeached testimony of Donna Bethea, corroborated by circumstantial evidence, remained. The other evidence of guilt is overwhelming.

For the foregoing reasons, the conviction and sentence of defendant, Kenneth Wayne Williams, are affirmed.

AFFIRMED.

LEMMON, J., dissents and assigns reasons.

DENNIS, J., dissents for the reasons assigned by LEMMON, J.

LEMMON, Justice,

dissenting.

When a defendant makes a request for specific evidence which is material and which may be exculpatory, the prosecution must respond either by furnishing the information or by submitting the evidence to the trial judge for an in camera inspection. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

The trial court’s denial of the request as premature placed defense counsel in the unfair position of having to inquire blindly at trial about prior convictions which might bear on the witness’ credibility, with possible damaging and prejudicial results. If defense counsel was entitled to the rap sheet at all, he was entitled to it prior to trial.

The other assignments of error are without merit, but before affirming the conviction, I would remand for a hearing to determine if the requested evidence was exculpatory and might have affected the verdict.

      . In State v. Toledano (La. 1980) (No. 66,727), four of the justices of this court apparently agreed that a witness’ rap sheet had to be produced when specifically requested, even when the witness was a juvenile.

      . Defendant should have urged this error in moving for a new trial, at which time the trial court presumably would have granted defendant access to the rap sheet in connection with the motion, and the entire matter would be before this court now for review.