author:
CALOGERO, Justice.
     MARCUS, Justice LANDRY, Justice ad hoc,

text:
    Sidney W. FREECHOU v. THOMAS W. HOOLEY, INC. and Travelers Insurance Company.
    No. 65553.
    Supreme Court of Louisiana.
    April 7, 1980.
    Rehearing Denied May 19, 1980.

      James J. Morse, Law Offices of James J. Morse, New Orleans, for defendants-respondents.
    Ira J. Middleberg, Miranne & Miranne, New Orleans, for plaintiff-applicant.
   CALOGERO, Justice.

Plaintiff in this workman’s compensation suit alleged that he sustained an inguinal hernia in an accident while working. Summary judgment for defendant in the district court was affirmed in the Court of Appeal.

Sidney W. Freechou was employed by Thomas W. Hooley, Inc. on November 19, 1976. On that date, Freechou alleges that while carrying a heavy cylinder of gas across a set of railroad tracks he slipped and felt a pull in the lower left side of his groin. He alleges that this incident caused an indirect inguinal hernia. Plaintiff further alleges that he reported the incident to his employer the next working day, Monday, November 22, 1976. He was not seen by a physician, nor did he receive medical treatment of any kind until March 4, 1977, some'three months after the accident.

Defendants, Hooley and their insurance carrier Travelers, filed a .motion for summary judgment based upon R.S. 23:1221 (4)(q)(i), and relies upon the fact that the plaintiff was not attended by a physician within thirty days of the accident. The trial court granted the motion and dismissed the suit. The Court of Appeal affirmed the ruling of the trial court.

We granted writs to determine whether, as a matter of law, a' workman who suffers an inguinal hernia from an accident occurring in the course and scope of his employment is barred from recovering for that injury under R.S. 23:1221(4)(q)(i) because he is not attended by a physician within thirty days after promptly reporting the accident to his employer. Freechou v. Hooley, 376 So.2d 326 (1979).

Because of. the occasional difficulty encountered by the courts in determining whether the hernia occurred within the course and scope of the employment, R.S. 23:1221(4)(q)(i) was added to the Workmen’s Compensation Act by Acts 1968 (Ex. Sess.) No. 25. Guillory v. Farrar, 182 So.d 158 (La.App. 3rd Cir. 1966). That statute provides:

“In all claims for inguinal hernia, it must be established by a preponderance of the evidence that the hernia resulted from injury by accident arising out of and in the course and scope of employment; that the accident was reported promptly to the employer, and that the employee was attended by a physician within thirty days thereafter.”

We are called upon in this case to interpret and apply this statute. At the outset, we recognize that the purpose of the Workmen’s Compensation Act is to provide the employee with prompt compensation for any “personal injury by accident arising out of and in the course of his employment,” unless such compensation is specifically excluded. R.S. 23:1031.

R.S. 23:1221(4)(q)(i), interpreted most favorably to defendant, is not in keeping with that general purpose for it speaks of requirements more stringent than simply a showing of injury suffered in the course and scope of employment.

While we are constrained to interpret this statute only in a reasonable fashion we are nonetheless also cognizant of our obligation to construe the compensation statutes liberally in favor of finding coverage, whether to defeat a tort suit or to afford compensation to the injured employee. Danielson v. Security Van Lines, Inc., 245 La. 450, 158 So.2d 609 (1963); Johnson v. Cabot Carbon Co., 227 La. 941, 81 So.2d 2 (1955); and Leblanc v. Commercial Union Assurance Co., 349 So.2d 1283 (La.App. 1st Cir. 1977).

The Court of Appeal in this case held that the thirty day limitation in the statute (in addition to the requirement for prompt reporting) is a “standard of proof” which must be met by the workman making a claim for an inguinal hernia, and that absent plaintiff’s meeting the standard or establishing such proof, the claim is to be barred. We do not agree with this interpretation of the statute for it would lead to irrational and unjust results in some situations if so applied.

R.S. 23:1221(4)(q)(i)'s language is that, “In all claims for inguinal hernia, it must be established by a preponderance of the evidence that . . . .” The statute does not directly assert that it is the plaintiff, or workman, who must “establish by preponderance” the prompt report and attendance by a physician within thirty days; nor does it specify the consequence of failure in this respect. In other sections of the Workmen’s Compensation Act, the Legislature has been quite specific where they have chosen to bar a workman’s claim absent his compliance with certain statutory requirements. For example, R.S. 23:1031.-1(E) provides, “All claims for disablement arising from an occupational disease are forever barred unless the employee files a claim with his employer within four months . ; ” Section F of that same statute provides, “All claims for death arising from an occupational disease are forever barred unless . . . ; ” and R.S. 23:1291 provides, “No proceeding under this Chapter for compensation shall be maintained unless . .” Standing alone, this argument, that the statute does not unequivocally place upon the employee the burden of prompt reporting and seeing to attendance by a physician, would perhaps be insufficient to support a conclusion that the statute is ambiguous, for the argument can be made that the statute implies that these are the claimant’s burdens. Along with other considerations, however, the aforestated argument does indeed lend support to the conclusion that the statute is ambiguous.

The principal consideration, and a compelling reason for concluding that the statute is ambiguous, is the irrational and unjust result which would follow defendant’s construction in some fact situations including the one in the present case. Here the accident was reported promptly to the employer, for plaintiff reported his late afternoon accident on the morning of the immediately succeeding work day. It was not evident to him at that time that he had suffered a disabling injury or inguinal hernia. Nor was the workman’s condition so immediately disabling as necessarily to require medical attention to facilitate his continued working. If we were to accept defendant’s construction of the statute (that the workman’s claim is barred if he is not seen by a physician within thirty days of the accident), then in this case plaintiff’s claim would be barred before he ever discovered that he sustained the injury.

Furthermore, a workman who fails or neglects to report an accident immediately may be in a better position than one who does report it immediately. This is so because the workman need only report the accident “promptly,” followed by the thirty days for attendance by a physician. Thus, a plaintiff like the one in Graver v. Zeeman Enterprises, Inc., 362 So.2d 1228 (La.App. 4th Cir. 1978) whose report was found to have been prompt when made some ten weeks after the accident, would not be barred although seen by a physician some twelve weeks post accident, while a workman reporting the accident immediately and not seen by a physician within thirty days thereafter would be barred less than five weeks post accident.

The apparent purpose of the statute is to facilitate early diagnosis and avoidance of the sometimes vexatious proof problems in hernia cases. This purpose is served by the workman’s prompt report of the accident and the employer’s consequent opportunity to require the workman’s attendance by a physician. After prompt notification of the accident, the responsibility for insuring the workman’s attendance by a physician within thirty days is equally, if not more so, that of the employer. To place the entire burden upon an employee, promptly reporting an accident, to attend a physician of his choice at his own initial cost within thirty days of the report (even though he may not be aware of his injury) under threat of barring his claim, is to invite an employer to desist from sending the workman to a doctor, with his reward being the avoidance of compensation liability. Such an irrational and unfair situation could not have been the intention of the legislature. Furthermore, this is at variance with the employer’s obligation under R.S. 23:1122, to cause an examination of an injured workman immediately upon receiving knowledge or notice of the accident.

There is little doubt in our view, that R.S. 23:1221(4)(q)(i) is ambiguous for the reasons expressed hereinabove. And, “Where a statute is ambiguous and susceptible of two constructions, the courts will give that construction which best comports with the principles of reason, justice, and convenience, for it is to be presumed that the legislature intended such exceptions to its language as would avoid its leading to injustice, oppression, or absurd consequences.” State v. Standard Oil Company of Louisiana, 188 La. 978, 178 So. 601 (1937); and Flanagan v. A L & W Moore Trucking Contractors et al., 100 So.2d 289 (La.App. 2nd Cir. 1958), writs denied.

Finding need therefore to apply the statute and to interpret it in a manner which is consistent with logic and the presumed fair purpose and intention of the Legislature in passing it, we interpret R.S. 23:1221(4)(q)(i) to mean that the workman must prove in any claim for an inguinal hernia by preponderance of the evidence that the hernia resulted from injury by accident arising out of and in the course and scope of employment; that the accident was reported promptly to the employer; and that he was attended by a physician within thirty days of such prompt report if timely advised or instructed to do so by his employer.

We so construe the statute and therefore find it unnecessary to examine plaintiff’s contentions regarding equal protection and due process.

Applying the statute as interpreted herein, plaintiff’s claim is not to be barred since, on the pleadings, he was never instructed or advised by his employer to see a physician. Therefore the summary judgment in favor of defendant is not in order.

Decree

For the reasons assigned, the judgment of the Court of Appeal affirming the summary judgment is annulled, reversed and set aside, and it is now ordered that the case be remanded to the trial court for trial on the merits in accordance with this opinion.

JUDGMENT OF THE COURT OF APPEAL REVERSED; REMANDED TO THE DISTRICT COURT.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents.

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

MARCUS, Justice

(dissenting).

Plaintiff was not “attended by a physician within thirty days” after the accident was reported to his employer. Any change in the clear and unambiguous language of the statute addresses itself to the legislature. Accordingly, I respectfully dissent.

LANDRY, Justice ad hoc,

dissenting.

It is my considered opinion that the majority award of compensation for hernia in this instance is patently contrary to the express terms and provisions of La.R.S. 23:1221(4)(q)(i), which pertinently states:

“In all claims for inguinal hernia, it must be established by a preponderance of the evidence that the hernia resulted from injury by accident arising out of and in the course and scope of employment; that the accident was reported promptly to the employer; and that the employee was attended by a physician within thirty days thereafter.” (Emphasis supplied).

The statute is obviously procedural in nature. Its requirements are unmistakably clear, unambiguous, and conjunctive. To fulfill the expressly required proof of hernia the employee is statutorily mandated to show that the hernia resulted from an injury arising from an accident which occurred out of and in the course and scope of employment. Additionally, the employee must show that the accident was reported promptly and that he was attended by a physician within thirty days of the accident which allegedly caused the hernia.

The majority recognize the purpose of the statute is to obviate the difficulty of judicial determination of whether a hernia resulted from an accident within the course and scope of employment where medical attention is belatedly sought for an alleged hernia causing accident.

Despite the above acknowledgement, the majority nullifies the requirement of the applicable statute by employing the general provision of La.R.S. 23:1031. Section 1031, above, announces the intent of the Workmen’s Compensation Statute to be to provide employees with prompt compensation for personal injury resulting from an accident arising out of and in the course and scope of employment, unless such compensation is specifically excluded. Section 1031, above, also declares that the Workmen’s Compensation Statute is to be construed liberally in favor of the employee.

In reaching these conclusions, the majority ignore the fundamental rule of legislative interpretation that in the event of conflict between the general and special provisions of a statute, the latter shall prevail. Arata v. Louisiana Stadium and Exposition District, 254 La. 579, 225 So.2d 362 (1969).

It is common knowledge that a hernia can result from an ordinary daily act of lifting any object. Section 1221(4)(q)(i), above, recognizes the vulnerability of an employer to a fraudulent claim of work related hernia where the employee does not experience sufficient pain, suffering, discomfort or disability to seek medical attention or treatment within thirty days of an accident. An employee may easily experience a non-hernia producing accident and thereafter, either within or subsequent to the thirty day period, sustain a hernia from an accident or incident totally unrelated to his employment. Without medical appraisal of the effects of the work related accident there is no possible way the employer can refute a fraudulent claim that the work related accident caused the disabling hernia.

The facts of this case are a classical example of the type of situation Section 1221(4)(q)(i) was intended to cover. Here, the employee did not seek medical attention until three months following the accident which he now claims caused his hernia. The employer is effectively deprived of any possible defense to the dilatory claim.

I respectfully dissent.

       Chief Judge Paul B. Landry, retired, participáted in this decision as an Associate Justice Ad Hoc.

      . Inasmuch as there are no contrary contentions in the pleadings and affidavits and because this case was decided on a motion for summary judgment, we assume facts consistent with the pleadings and most favorable to plaintiff.

      . While it is true that in many cases the occurrence of a hernia is accompanied by some pain and visible bulging in the groin area, it is equally true that these symptoms often are not initially present and that it may take some time before the contents of the abdominal cavity extend into the inguinal canal causing the symptoms that would require a physician’s attendance. Traumatic Medicine and Surgery, P. Cantor, ed., Vol. 7, pp. 195-228 (1962); Attorney’s Textbook of Medicine, R. Gray, ed., Vol. 4A, pp. 222-1, 222-75 (1973); and Lawyers Medical Cyclopedia. ... of Personal Injuries and Allied Specialities, C. Frankel, ed., Vol. 4, pp. 365-377.

      . While the Fourth Circuit in Graver found under the specific facts there that a report ten weeks after the accident was “prompt” within the meaning of the statute, it is worth noting that in the other reported decision on this narrow prompt reporting issue the Second Circuit in Womack v. Pickett, 283 So.2d 582 (La.App. 2nd Cir. 1973) found that five weeks was not “prompt.”

      . R.S. 23:1122 provides as follows:

        “The employer shall cause the examination provided for in the preceding Section to be made immediately after knowledge or notice of the accident, and to serve a copy of the report of such examination made by the employer’s physician upon the employee within six days after the employer’s receipt of the report of such examination. If the examination is not made and the report is not furnished by the employer within that time, the employee shall furnish a report of the examination made by his own physician to the employer, for which the employee shall be entitled to receive from the employer the actual cost of the examination and the actual cost of the report. The physician’s invoice or receipt shall be prima facie proof of the cost. Upon the receipt by either party of such a report from the other party, the party receiving it, if he disputes the report or any statement therein, shall notify the other of that fact within six days, otherwise the report shall be prima facie evidence of the facts therein stated in subsequent proceedings under this Chapter.” (Emphasis provided.)


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Lonnie C. JACOBS.
    No. 65809.
    Supreme Court of Louisiana.
    April 7, 1980.
    Rehearing Denied May 19, 1980.

      Douglas L. Stokes, Jr., Emmons, Henry & Reeves, Jonesboro, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara. Rutledge, Asst. Atty. Gen., Leon H. Whit-ten, Dist. Atty., John C. Blake, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Lonnie C. Jacobs was charged in the same information with separate counts of (1) distribution of marijuana on March 18, 1976, (2) distribution of marijuana on March 18, 1977, and (3) possession with intent to distribute marijuana on October 15,1977, all in violation of La.R.S. 40:966.

After trial by jury, defendant was found guilty on counts one and two and guilty of possession on count three. Defendant was sentenced to serve ten years at hard labor and to pay a fine of fifteen thousand dollars on each of the first two counts and to serve six months in the parish jail and to pay a fine of five hundred dollars on count three. The court expressly directed that the sentences be served consecutively. The sentences imposed were the maximum allowed by law.

On defendant’s appeal, we affirmed his convictions and sentences; however, we granted a rehearing and on rehearing affirmed defendant’s convictions but, finding that the trial judge had not complied with the sentencing guidelines set forth in La.Code Crim.P. art. 894.1 nor ordered a pre-sentence investigation or conducted a sentencing hearing, we vacated the sentences imposed and remanded the case for resen-tencing in accordance with law. State v. Jacobs, 371 So.2d 727 (La.1979).

On remand, the trial judge ordered a presentence investigation. Upon receipt of the report, a copy was furnished to defendant. Subsequently, a sentencing hearing was held at which evidence was adduced. At the conclusion of the hearing, the court sentenced defendant to serve ten years at hard labor and to pay a fine of one thousand dollars on each of the first two counts and directed that the sentences be served concurrently. On count three, the court sentenced defendant to serve six months in the parish jail and to pay a fine of five hundred dollars; he directed that this sentence be served consecutively with the other sentences imposed.

Defendant again appeals to this court alleging two assignments of error, viz., the trial judge failed to comply with the sentencing guidelines set forth in La.Code Crim.P. art. 894.1 as he did not take into consideration any of the mitigating factors set forth in said statute (Assignment of Error No. I), and the sentences imposed are excessive in that the six-month sentence imposed on count three should have been concurrent with the other sentences imposed (Assignment of Error No. 2). Finding no merit in defendant’s assigned errors for reasons hereinafter set forth, we affirm.

In imposing the sentences, the trial judge, reviewing the evidence, noted that defendant sold one “lid” of marijuana to a state trooper on March 18, 1976. Thereafter, he was arrested and released on bail. While free on bail, defendant again distributed marijuana when he sold one “lid” of marijuana to another state trooper on March 18, 1977. At the time of his arrest for this second offense on October 15, 1977, four “lids” of marijuana were found concealed on his person. Based on these facts, the trial judge concluded that these incidents were not isolated transactions but rather showed that defendant was engaged in the business of distributing a controlled dangerous substance. He stated that he was of the opinion that imprisonment was necessary due to an undue risk that defendant might again distribute marijuana during the period of suspended sentence or probation, if granted, and that any sentence less than imprisonment would deprecate the seriousness of defendant’s crimes. The trial judge recognized that defendant had no prior criminal record.

Clearly, the trial judge complied with art. 894.1. He stated for the record the considerations taken into account and the factual basis therefor in imposing sentences of imprisonment. Article 894.1 does not require the trial judge to set forth for the record all the factors listed in said statute which were accorded weight by him in determining to impose a sentence of imprisonment rather than to grant suspension of sentence or probation. See State v. Vaughan, 377 So.2d 87 (La.1979).

Next, we consider defendant’s contention that the sentences imposed are excessive. He argues that the sentence on count three should have been made concurrent with the sentences on counts one and two.

La.Const. art. 1, § 20 prohibits the imposition by law of excessive punishment. Accordingly, we have held that imposition of a sentence, although within the statutory limit, may violate a defendant’s constitu-tional right against excessive punishment that is enforceable by this court on appellate review. The trial judge’s reasons in imposing sentence, as required by La.Code Crim.P. art. 894.1, are an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive. State v. Spencer, 374 So.2d 1195 (La.1979); State v. Gist, 369 So.2d 1339 (La.1979); State v. Sepulvado, 367 So.2d 762 (La.1979). Moreover, the trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentences imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Spencer, supra; State v. Sepulvado, supra.

For an offender without prior felony record, ordinarily concurrent rather than consecutive sentences should be imposed, especially where the convictions arise out of the same course of conduct within a relatively short period. State v. Watson, 372 So.2d 1205 (La.1979); State v. Cox, 369 So.2d 118 (La.1979). However, consecutive sentences may be justified when, due to his past conduct or repeated criminality over an extended period, the offender poses an unusual risk to the safety of the public, similar to those posed by habitual or by dangerous offenders. State v. Watson, supra.

In the instant case, defendant distributed marijuana on two separate occasions, a year apart, to different individuals. The second offense occurred after defendant’s arrest for the earlier offense and while he was free on bail. When defendant was arrested for the second offense some seven months later, marijuana was found concealed on his person. Hence, defendant’s convictions did not arise out of the same course of conduct within a relatively short period of time. Nonetheless, the trial judge directed the sentences on counts one and two (distribution) to be served concurrently but the sentence on count three (possession) to be served consecutively with the other sentences. Under the circumstances, we are unable to say that the trial judge abused his discretion in making the sentence on the third count consecutive with the other two. Nor are we able to say that he abused his discretion in imposing the sentences which he did for each of the offenses in view of defendant’s continued activity with drugs over an extended period of time after having been arrested for such conduct.

In sum, we conclude that the trial judge complied with La.Code Crim.P. art. 894.1 in sentencing defendant and that the sentences imposed are not excessive.

DECREE

For the reasons assigned, defendant’s sentences are affirmed.

       The Honorable Edward A. de la Houssaye III participated in this decision as an Associate Justice Ad Hoc.

      . La.Code Crim.P. art. 894.1 provides:
      A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
      (1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
      (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
      (3) A lesser sentence will deprecate the seriousness of the defendant’s crime.

        B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
      (1) The defendant’s criminal conduct neither caused nor threatened serious harm;
      (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
      (3) The defendant acted under strong provocation;
      (4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
      (5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
      (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sus-, tained;
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      ís) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      (10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.

      . Defendant did not object on this ground at the time of sentencing. However, we have held that, even without formal objection at the time of sentencing, where the trial judge imposes a sentence without adequate compliance with the mandatory requirements of La.Code Crim.P. art. 894.1, this court may vacate a sentence and remand for resentencing when the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record. State v. Gist, 369 So.2d 1339 (La.1979); State v. Cox, 369 So.2d 118 (La.1979).


author:
MARCUS, Justice.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Ivan MOLINARIO.
    No. 65851.
    Supreme Court of Louisiana.
    April 7, 1980.
    Rehearing Denied May 19, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Marvin Opotowsky, Lance Africk, Asst. Dist. Attys., Career Crim. Bureau, for plaintiff-appellee.
    Robert Barnard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   MARCUS, Justice.

Ivan L. Molinario was charged by bill of information with simple burglary of a pharmacy in violation of La.R.S. 14:62.1. After trial by jury, defendant was found guilty as charged. After conviction, but prior to sentencing, the district attorney filed an information accusing defendant of previous felony convictions pursuant to La.R.S. 15:529.1 (Habitual Offender Law). After hearing, the trial judge found defendant to be an habitual offender and sentenced him, as a fourth offender, to life imprisonment at hard labor. On appeal, defendant relies on twenty-seven assignments of error for reversal of his conviction and sentence. We will discuss only those assignments of error which present serious issues. The remaining assigned errors are clearly without merit and are resolved based on well-settled principles of law. Since extended reasons for concluding that they lack merit would serve no useful purpose, we have decided to dispose of them without discussion.

ASSIGNMENTS OF ERROR NOS. 4 AND 18

Defendant contends the trial judge erred in allowing in evidence testimony concerning his flight from the state. He argues that the evidence was inadmissible hearsay (Assignment of Error No. 4) and constituted a reference to another crime committed by him to which evidence was not admissible (Assignment of Error No. 18).

Prior to trial, defendant filed a motion requesting, inter alia, a protective order that the state could not produce evidence that defendant had committed the offense of jumping bail in violation of La.R.S. 14:110.1. The trial judge denied the motion, ruling that the state could introduce evidence of defendant’s flight.

The evidence of defendant’s flight was admitted during the testimony of New Orleans Police Detective Wilbert Rome. Rome testified that he and another officer traveled to Tampa, Florida to gain custody of defendant and return him to this jurisdiction. When asked as to what he meant by “extradition,” the witness replied: “There was an at large capias issued by the courts here in Louisiana.” At this point, defendant objected on the ground of hearsay. The trial judge then asked the witness if he was present in court when the capias was issued. The witness replied in the negative but stated that he and the other officer had a “governor’s extradition warrant” in their possession when they traveled to Florida.

Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value, upon the credibility of the out-of-court asserter. State v. Martin, 356 So.2d 1370 (La.1978). We do not consider that this testimony was introduced to prove the truth of the matter but rather to explain the reason and the authority under which the witness and the other officer traveled to Florida to secure defendant and return him to Louisiana. Hence, it was nonhearsay. State v. Drew, 360 So.2d 500 (La.1978), cert. denied, 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25 (1979); State v. Mitchell, 356 So.2d 974 (La.1978), cert. denied, 439 U.S. 926, 99 S.Ct. 310, 58 L.Ed.2d 319 (1979). We further reject defendant’s argument in brief to this court that the evidence of defendant’s flight constituted assertive non-verbal communication introduced to prove the truth of the matter asserted and was therefore inadmissible hearsay. Even assuming that defendant’s flight to Florida is assertive in nature, it was admissible as a declaration against penal interest, an exception to the hearsay rule. State v. Gilmore, 332 So.2d 789 (La.1976). In sum, the trial judge correctly overruled defendant’s objection on the ground of hearsay.

Defendant’s objection to Detective Rome’s testimony relating to extradition of defendant on the ground of relevancy was overruled by the trial judge. In brief to this court, defendant argues that evidence of defendant’s flight constitutes an impermissible reference to another crime, viz., jumping bail.

Defendant was arrested by Detective Rome on March 15, 1977, on the charge of burglary of a pharmacy which took place on February 15, 1977. On March 30, 1977, defendant pleaded not guilty and the court ordered bond set at five thousand dollars. Thereafter, defendant appeared in court on numerous occasions in connection with pretrial motions filed by him. On July 29, 1977, bond was forfeited due to the nonappearance of defendant and the court ordered the issuance of an alias capias. Thereafter, defendant was extradited from Florida (May 1978).

Evidence of criminal acts of the accused designed to obstruct justice or avoid punishment for the present crime may be introduced as an admission by conduct, subject to the following safeguards: (1) before the evidence is introduced at all, there must be clear and convincing evidence of the commission of the other crimes and the defendant’s connection therewith; (2) the evidence of the accused’s conduct must be substantially relevant to show his consciousness of guilt of the crime charged; (3) the probative value of the extraneous crimes evidence must outweigh its prejudicial effect. State v. Lee, No. 65,064, 381 So.2d 792 (La., February 15, 1980); State v. Burnette, 353 So.2d 989 (La.1977).

In the instant case, there is no question but that defendant did in fact commit the offense of jumping bail. It appears from the record that the only charges pending against defendant at the time of his flight from this jurisdiction was the charge herein and the charge of possession of the drugs stolen in the burglary involved in this case. Defendant had been released on bail and was awaiting trial at the time of his flight. This case does not present a situation where the inference of guilt drawn from the flight of the accused was clouded by other factors, such as unrelated pending criminal charges, prison conditions or the desire for freedom, or a lack of confidence in a right to a speedy trial. We conclude therefore that defendant’s flight from the state was relevant to show his consciousness of guilt, State v. Bolton, 354 So.2d 517, (La.1978) and State v. Davies, 350 So.2d 586 (La.1977), and that the probative value of this evidence outweighed its prejudicial effect. Hence, the evidence was properly admitted by the trial judge.

Assignments of Error Nos. 4 and 18 are without merit.

ASSIGNMENT OF ERROR NO. 8

Defendant contends the trial judge erred in allowing in evidence references to defendant’s use of drugs during the testimony of Jarold Mueller, Rachael Nile and Lawana Sawyer.- He argues that such evidence constituted evidence of other crimes which was inadmissible because the state failed to give him notice as required by La.Code Crim.P. art. 720.

La.Code Crim.P. art. 720 provides:

Upon motion of defendant, the court shall order the district attorney to inform the defendant of the state’s intent to offer evidence of the commission of any other crime admissible under the authority of R.S. 15:445 or R.S. 15:446. Provided however, that such order shall not require the district attorney to inform the defendant of the state’s intent to offer evidence of offenses which are part of the res gestae or convictions used to impeach the defendant’s testimony.

Jarold Mueller testified that, after he and defendant burglarized the pharmacy, they returned with the drugs to the apartment of Rachael Nile where Mueller was staying at the time. He stated that Rachael Nile and Lawana Sawyer, who resided with Mueller and defendant, respectively, were present at the apartment and that the four of them “tested” the drugs, i. e., used some of the stolen drugs and then divided the drugs between the two couples. The testimony of Rachael Nile and Lawana Sawyer was to the same effect. Additionally, Ms. Nile stated that she knew the burglary was to take place that night as defendant had previously asked her if she would participate in it.

Prior to trial, defendant filed a motion requesting, inter alia, a protective order that the state could not introduce evidence of defendant’s use of drugs. The trial judge ruled that evidence relating to the use of the stolen drugs immediately after the burglary was admissible as part of the res gestae.

La.R.S. 15:448 provides:

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

The doctrine of res gestae includes not only spontaneous utterances and declarations made before and after commission of the crime but also testimony of witnesses and police officers pertaining to what they heard or observed before, during, or after the commission of the crime if the continuous chain .of events is evident under the circumstances. La.R.S. 15:447, 448; State v. Drew, 360 So.2d 500 (La.1978), cert. denied, 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25 (1979), and cases cited therein.

In the instant case, defendant and Mueller burglarized the pharmacy and immediately returned to the apartment, used some of the drugs in order to test them, and then divided up the remainder. The burglary and defendant’s use of drugs formed one continuous chain of events. We consider that the testimony relating these events was within the res gestae so as not to require notice under La.Code Crim.P. art. 720.'

Assignment of Error No. 8 is without merit.

ASSIGNMENTS OF ERROR NOS. 16 AND 17 . '

Defendant contends the trial judge erred in refusing to allow him the opportunity to impeach the testimony of a state witness.

On cross-examination of Rachael Nile, a state witness, defense counsel asked her if she recalled writing a letter indicating her belief that Jarold Mueller “set Ivan [defendant] up on this drug charge.” The witness responded in the negative. It is clear from the record that defense counsel was questioning the witness about this letter which was viewed at the time by the trial judge. The state objected to any questions directed to this witness regarding any documents including “this letter” which it had “not been privileged to see prior to the trial.” The witness was then asked, “Do you remember writing a letter to Judge Ward about this case?” The witness replied in the affirmative. She further stated that she did not have a copy of the letter nor did she recall whether she had sent a copy of it to defendant. The next question of defense counsel, concerning the contents of the letter, was interrupted by the trial judge, who sustained the state’s objection. A copy of the letter was not introduced in evidence.

Each side has the right to impeach the testimony and the credibility of every witness sworn on behalf of the other side. La.R.S. 15:486. La.R.S. 15:493 provides:

Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.

La.R.S. 15:493 thus permits the credibility of a witness to be impeached by proof of any statement made contradictory to his testimony at trial. If, however, a witness distinctly admits having made a prior contradictory statement, evidence that the statement was made is inadmissible. La.R.S. 15:493; State v. Gomez, 365 So.2d 1313 (La.1978); State v. Mosely, 360 So.2d 844 (La.1978); State v. Bennett, 357 So.2d 1136 (La.1978).

It seems clear from the record that the letter written to the trial judge was the same letter in which the witness had referred to the fact that Mueller had “set up” defendant. That statement was contrary to her testimony at trial that Mueller and defendant had both participated in the burglary of the pharmacy. While Ms. Nile at first denied writing a letter indicating that Mueller had set up defendant, her later admission to writing a letter to the trial judge, which was obviously the same letter containing the assertion that Mueller had set up defendant, more than likely conveyed to the jury her admission of the prior contradictory statement, making the letter inadmissible in evidence. On the other hand, even assuming that her testimony did not constitute a distinct admission as to her prior contradictory statement, any resultant error was harmless since the witness’ testimony was otherwise impeached. Ms. Nile admitted that she had been convicted of forging a prescription in 1974 and that she and defendant invented an alibi for defendant as to the crime for which he was being tried. She testified that they decided they would say that defendant had been at her apartment on the night of the burglary babysitting for her five-year-old child. The plan was later abandoned because she and defendant were unsure of the dates involved. Ms. Nile further stated that, prior to the abandonment of the proposed alibi, she had prepared documents purporting to be her financial records for the time period in question, including babysitting records, which she had given to the district attorney some six or eight weeks prior to trial. Under the circumstances, any prejudice resulting from the ruling of the trial judge was removed by the impeachment of the witness on other grounds.

Assignments of Error Nos. 16 and 17 are without merit.

SUPPLEMENTAL ASSIGNMENT' OF ERROR NO. 4

Defendant contends the trial judge erred in finding him to be an habitual offender in that a prior federal conviction used to enhance his sentence was not a felony if committed in this state. In view of our disposition of the case based on this contention, we need not consider other contentions raised by defendant in this assignment of error relative to his being found an habitual offender.

La.R.S. 15:529.1(A) provides:

Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government or country of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony shall be punished as follows: . [Emphasis added.]

The trial judge found defendant to be a fourth felony offender and sentenced him to life imprisonment. One of the prior felonies used to enhance his punishment for the instant felony conviction was a conviction under the laws of the United States, viz., a violation of the Federal Gun Control Act of 1968, 18 U.S.C. § 922(a)(6). Defendant’s conviction for this federal offense was based on a plea of guilty to the charge of knowingly making a false written statement in his application to a licensed dealer for the purchase of a firearm. He was sentenced to imprisonment for a period of four years (a felony under federal law).

In State v. Singleton, 352 So.2d 191 (La.1977), we held that under La.R.S. 15:529.1 a federal conviction can only be used to enhance a defendant’s conviction if the offense is one which “if committed in this state would be a felony.” Finding that the violation of the federal law was analogous to a crime not a felony in this state at the time of the commission of the offense, we held that it was improperly used to enhance his punishment.

In the instant case, the federal offense for which defendant was convicted was analogous at the time of the commission of the offense to the crime in this state of false swearing. (La.R.S. 14:125). A felony in this state is defined as “any crime for which an offender may be sentenced to death or imprisonment at hard labor.” La.R.S. 14:2(4). A misdemeanor is “any crime other than a felony.” Id. 2(6). The penalty for false swearing is a fine not more than five hundred dollars, or imprisonment for not more than one year, or both. Therefore, the crime of false swearing is a misdemeanor and not a felony because it is not punishable by imprisonment at hard labor. Since the federal offense for which defendant was convicted would not have been a felony “if committed in this state,” it may not be used to enhance defendant’s punishment. State v. Singleton, supra.

State v. Ralph, 336 So.2d 836 (La.1976), relied upon by the state, is distinguishable from the instant case in that in Ralph there was no state offense analogous to the federal offense, viz., transportation of a stolen motor vehicle in interstate commerce, used to enhance punishment. Under those circumstances, reference to the penalty provision of the crime for which defendant was convicted under the federal law in determining whether the federal conviction could be used as a prior conviction under our habitual offender law was proper.

Since the federal conviction was improperly used to enhance defendant’s punishment in the instant case, defendant’s sentence as an habitual offender must be set aside and the case remanded for a new sentencing hearing.

MOTION TO REMAND

Defendant has filed a motion in this court to remand the case to the trial court for a hearing on his motion for a new trial based on newly-discovered evidence. In order to properly understand our disposition of this motion, it is necessary that we set forth the involved factual background relating thereto.

A verdict in this matter was rendered on October 20, 1978. A motion for new trial was filed and disposed of before sentence (November 3, 1978). Sentence was imposed by the court on defendant and an order of appeal entered on the same date. On June 15,1979, defendant filed another motion for a new trial. A hearing was held on that motion on June 22,1979, at which testimony was heard from witnesses Sherwood Millet and Lawana Sawyer. The record does not reflect the disposition of this motion.

On July 13, 1979, while his appeal was pending, defendant filed a motion in this court seeking to have the case remanded to the trial court for a hearing on his motion for a new trial based on newly-discovered evidence. This court granted the motion on July 16, 1979, and ordered the case remanded for a hearing on defendant’s motion for a new trial. Thereafter, on November 30, 1979, a hearing was held in response to the order of this court.

At the hearing, the state introduced evidence of the “F.B.I. rap sheets” and certified copies of criminal convictions of prospective defense witnesses Ellis Guillot and Tebbe Arbo. Defendant objected on grounds of hearsay and improper impeachment of defense witnesses who had not yet been called to testify. The objection was overruled. Without any testimony being taken, the trial judge denied the motion for a new trial on the ground that it was untimely filed. While the appeal was still pending, defendant filed the present motion to remand on January 14, 1980, contending that the trial judge improperly denied his motion for a new trial after a hearing at which he was not permitted to introduce testimony concerning the newly-discovered evidence.

La.Code Crim.P. art. 851 provides in pertinent part:

The court, on motion of the defendant, shall, grant a new trial whenever:
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.

La.Code Crim.P. art. 853 provides in pertinent part:

When the motion for a new trial is based on ground (3) of Article 851, the motion may be filed within one year after verdict or judgment of the trial court, although a sentence has been imposed or a motion for a new trial has been previously filed; but if an appeal is pending the court may hear the motion only on remand of the case.

An order' of appeal was entered in this case on November 3, 1978. The jurisdiction of the trial court was divested and that of this court attached upon entering of the order of appeal. Thereafter, the trial court had no jurisdiction over the results except for certain listed exceptions not applicable here (La.Code Crim.P. art. 916) and could hear a motion for a new trial grounded on newly-discovered evidence filed within one year after verdict pending appeal only on remand of the case by this court (La.Code Crim.P. art. 853).

Accordingly, the trial judge had no authority to hear the motion for new trial on June 22, 1979, in absence of an order of remand by this court. The trial judge could have heard defendant’s motion for a new trial based on newly-discovered evidence following remand by this court ordered on July 16,1979; however, the trial judge denied the motion as untimely without allowing defendant to present any evidence. Although the motion was heard more than one year after verdict, it was timely filed within one year after verdict. Moreover, defendant should have been given the opportunity to present evidence in support of his motion for a new trial grounded on newly-discovered evidence. See State v. Shannon, 360 So.2d 193 (La.1978); State v. Perry, 351 So.2d 1201 (La.1977). The trial judge erred in ruling otherwise.

Therefore, we must set aside the trial judge’s ruling and remand the case for a full evidentiary hearing on defendant’s motion for new trial grounded on newly-discovered evidence. The trial judge may grant a new trial if he finds the new evidence to be such that it would probably have changed the verdict. La.Code Crim.P. art. 851(3). However, should he determine, after a hearing on defendant’s motion for a new trial that the motion should be denied, the right of appeal from such ruling is reserved to defendant. In absence of such an appeal, the conviction will be affirmed. See State v. Simmons, 328 So.2d 149 (La.1976).

DECREE

For the reasons assigned,’ defendant’s conviction is affirmed and his sentence is vacated and set aside. The case is remanded to the district court for a hearing on defendant’s motion for new trial and for resentencing of defendant according to law and consistent with the views herein expressed.

DIXÓN, C. J., concurs, disagreeing with treatment of Assignments # 4, 8 and 18.

CALOGERO, J., dissents. Assignments of Error 4, 18 and 8 have merit.

DENNIS, J., dissents with reasons.

WATSON, J., dissents, being of the opinion that Assignments 4, 8 and 18 have merit.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The majority misconstrues our opinion in State v. Lee and Harris, 381 So.2d 792 (La.1980), in which we held that evidence of an escape, which amounts to evidence of another crime not part of the res gestae or introduced to show knowledge, intent or system, is inadmissible unless it meets certain safeguards. The evidence must be clear and convincing that the defendant committed the escape; it must be substantially relevant to show his consciousness of guilt of the crime charged; and the probative value must outweigh the prejudicial effect. State v. Lee and Harris, supra, p. 794. The safeguards applied to the admission of this evidence are to be stringently enforced, due to the inherently prejudicial effect of escape evidence. If the safeguards were stringently enforced in the present case, defendant’s conduct cannot be construed to be substantially relevant to show his consciousness of guilt of the crime charged; furthermore the probative value of the flight evidence does not outweigh its prejudicial effect.

       The Honorable Edward A. de la Houssaye III participated in this decision as Associate Justice Ad Hoc.

      . 18 U.S.C. § 922(a) provides:
      It shall be unlawful

      (6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or ficitious [sic] oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter.

      . The indictment charged that defendant, in connection with the acquisition of a firearm from, a licensed dealer in firearms, did knowingly and unlawfully make a false and fictitious written statement on Department of Treasury, Internal Revenue Service, Form 4473, that he had not been convicted of a crime punishable by imprisonment for a term exceeding one year, when in truth and in fact he was a person who had been convicted in court of a crime punishable by imprisonment for a term exceeding one year, and this false and fictitious written statement was likely to deceive such licensed dealer in firearms with respect to a fact material to the lawfulness of the sale and disposition of such firearm, all in violation of Title 18, U.S.Code, section 922(a)(6).

      . 18 U.S.C. § 924(a) provides:
      Whoever violates any provision of this chapter or knowingly makes any false statement or representation with respect to the information required by the provisions of this chapter to be kept in the records of a person licensed under this chapter, or in applying for any license or exemption or relief from disability under the provisions of this chapter, shall be fined not more than $5,000, or imprisoned not more than five years, or both, and shall become eligible for parole as the Board of Parole shall determine.

      . See note 4 on page 352.

        4. Under federal law, any offense punishable by death or imprisonment for a term exceeding one year is a felony. 18 U.S.C. § 1(1).

      . La.R.S. 14:125 provides:
      False swearing is the intentional making of a written or oral statement, known to be false, under sanction of an oath or an equivalent affirmation, where such oath or affirmation is required by law; provided that this article shall not apply where such false statement is made in, or for use in, a judicial proceeding or any proceeding before a board or official, wherein such board or official is authorized to take testimony.
      Whoever commits the crime of false swearing shall be fined not more than five hundred dollars, or imprisoned for not more than one year, or both.


text:
    The BANK OF NEW ORLEANS AND TRUST COMPANY v. Bushnell C. SEAVEY.
    No. 65872.
    Supreme Court of Louisiana.
    April 7, 1980.
    Rehearing Denied May 19, 1980.

      C. Ellis Henican, Jr., Albert F. Widmer, Jr., Henican, James & Cleveland, New Orleans, for defendant-applicant.
    J. David Forsyth, Sessions, Fishman, Ro-senson, Boisfontaine & Nathan, New Orleans, for plaintiff-respondent.
   MARCUS, Justice.

The Bank of New Orleans and Trust Company instituted this action against Bushnell C. Seavey to recover the balance due on a promissory note executed by defendant and held by plaintiff. Defendant filed a declinatory exception of lis pendens alleging that another suit was pending in the federal district court on the same cause of action, between the same parties in the same capacities, and having the same object.

After a hearing, the district court sustained the exception and stayed these proceedings pending the outcome of the suit in the federal court. Plaintiff applied for writs to the court of appeal under its supervisory jurisdiction. Without oral argument, the court of appeal reversed the judgment of the district court, overruled the exception of lis pendens, and remanded the case to the district court for further proceedings in accordance with law. The panel that reversed the judgment of the district court was composed of three judges with one judge dissenting. Defendant’s application for reargument before a panel of at least five judges pursuant to La.Const. art. 5 § 8(B) and/or rehearing was denied with the same judge dissenting from the denial of the application for rehearing but concurring in the denial of the application for reargument before a five-judge panel.

Upon defendant’s application, we granted certiorari to review the correctness of (1) the court of appeal’s decision not to permit reargument of the case before a panel of at least five judges and (2) its decision overruling defendant’s exception of lis pendens. Finding merit in the first contention, we must reverse and remand to the court of appeal. Hence, we do not reach the merits of the issue raised in the second contention.

La.Const. art. 5 § 8(B), under the heading “Courts of Appeal,” provides:

Judgments. A majority of the judges sitting in a case must concur to render judgment. However, when a judgment of a district court is to be modified or reversed and one judge dissents, the case shall be reargued before a panel of at least five judges prior to rendition of judgment, and a majority must concur to render judgment. [Emphasis added.]

The court of appeal in denying defendant’s application for reargument stated that it considered that the above provision does not apply to a judgment rendered by a court of appeal under its supervisory jurisdiction as in the instant casé. In addition, after reviewing the constitutional debate on the reargument question, it concluded that the delegates were concerned “with reversals on facts and there are no factual matters involved here.”

It is fundamental that when a constitutional provision is plain and unambiguous, its language must be given effect. City of Baton Rouge v. Short, 345 So.2d 37 (La.1977); State v. Clark, 186 La. 655, 173 So. 137 (1937). The language in art. 5, § 8(B), even though broad in scope, is clear and explicit. Hence, it is not subject to construction and should be applied according to the most usual signification in which the words are generally understood. State v. Bradford, 242 La. 1095, 141 So.2d 378 (1962); State v. Clark, supra; Orleans Parish School Board v. Murphy, 156 La. 925, 101 So. 268 (1924).

La.Const. art. 5, § 8(B) used the term “judgment.” A judgment is defined in La.Code Civ.P. art. 1841 as “the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.” Because it determines the rights of the parties and awards relief, it necessarily encompasses both legal and factual determinations. Also, by its express definition,.it includes both interlocutory and final determinations. Accordingly, we consider that “judgment” in art. 5 § 8(B) includes all judgments of district courts whether final or interlocutory and whether related to law or to facts.

Additionally, we find nothing in art. 5, § 8(B) to limit its application to modifications or reversals of district court judgments under the appellate jurisdiction of the courts of appeal. It is equally applicable to modifications and reversals of district court judgments under their supervisory jurisdiction. The language “to be modified or reversed” is broad and bears no limitations. If the framers of the constitution had intended that reargument be limited to cases involving judgments rendered under a court of appeal’s appellate jurisdiction rather than its supervisory jurisdiction, it would have been easy to thus provide by appropriate language. Indeed, the very fact that the language used is of a broad scope must be considered by us as a cogent reason for not restricting the meaning of the law to categories not plainly indicated by the lawmaker. State v. Bradford, supra. Hence, we consider art. 5, § 8(B) to apply to modifications or reversals of district court judgments under both the appellate and supervisory jurisdictions of the courts of appeal.

In sum, we interpret art. 5, § 8(B) as follows:

[WJhen a judgment of a district court [whether final or interlocutory and whether relating to law or facts] is to be modified or reversed and one judge dissents [whether under its appellate or supervisory jurisdiction], the case shall be reargued before a panel of at least five judges prior to rendition of judgment

In the instant case, a three-man panel of the court of appeal reversed a judgment of the district court with one judge dissenting. Hence, under the terms of La.Const. art. 5, § 8(B), the judgment of the court of appeal should not have been rendered. Rather, the case should have been “reargued before a panel of at. least five judges prior to rendition of judgment.” Thus, we must reverse the judgment of the court of appeal and remand the case for reargument “before a panel of at least five judges prior to rendition of judgment.”

DECREE

Judgment of the court of appeal is reversed and set aside; the case is remanded to the court of appeal for reargument before a panel of at least five judges prior to rendition of judgment.

       The Honorable EDWARD A. de la HOUSSAYE III participated in this decision as an Associate Justice Ad Hoc.

      . See La. Code Civ.P. art. 925.

      . See id art. 532.

      . 374 So.2d 696 (La.App. 4th Cir. 1979).

      . Id at 698.

      . 377 So.2d 118 (La.1979).

      . 6. Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts 756-60 (1977).

      . We have reviewed the transcript of the debate on art. 5, § 8(B). It relates only to whether the delegates intended the provision to apply to factual determinations and does not relate to whether they intended it to apply only to final judgments or cases before the court of appeal under its appellate jurisdiction. In any event, where the language of a constitutional provision is clear, as is the case here,- we cannot decide constitutional questions on the basis of the drafters’ debate,- but must rely on the- finished product,- which is the expression of the voters who adopted the constitution.


author:
WATSON, Justice.
     MARCUS, Justice

text:
    STATE of Louisiana v. Johnny CARTER.
    No. 66051.
    Supreme Court of Louisiana.
    April 7, 1980.
    Rehearing Denied May 19, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., J.„ Kevin McNary, Louise S. Korns, Asst. Dist. Attys., for plaintiff-ap-pellee.
    William J. O’Hara, Supervising Atty., New Orleans, Richard Collar, Michael Gallagher, Student Practitioners, Loyola Law School Clinic, Orleans Indigent Defender Program, Robert Barnard, Clyde D. Merritt, New Orleans, for defendant-appellant.
   WATSON, Justice.

Defendant Johnny Carter was charged by bill of information with armed robbery in violation of LSA-R.S. 14:64. After the trial court allowed into evidence an inculpato-ry statement made by defendant to a physician, defendant changed his plea from not guilty to guilty. He was sentenced as a habitual offender to thirty-three years imprisonment at hard labor without benefit of probation, suspension or parole. LSA-R.S. 15:529.1. Defendant reserved the right to appeal from the adverse ruling on the incul-patory statement. State v. Crosby, 338 So.2d 584 (La., 1976). The issue on appeal is whether the statement was a privileged communication to Carter’s physician.

Upon returning home from work in the late evening hours of January 19, 1979, Margaret Adams was approached by a man with a gun as she was getting out of her car. He pointed it at her and demanded her purse. After removing six dollars from her purse, the assailant insisted that she give him the keys to the car. Ms. Adams dropped the keys behind the front seat. When the man stooped to look for them, the woman picked up her gun and fired in his direction. The man ran down the street, followed by his intended victim, who fired several more shots until he disappeared from view.

The police were notified of the incident. Investigating officers followed a trail of blood to a point on Washington Street beside an apartment building.

Because the perpetrator of the crime had been shot, Officers Marziale and Palermo investigated a report that a man with a gunshot wound had been admitted to Charity Hospital. At the hospital, they found defendant Carter, who had been shot in the face and buttocks. When Officer Marziale discovered that Carter’s apartment was located fifty feet from the point where the blood was found, he placed defendant under arrest. Carter was advised of his rights and refused to sign a waiver or give a statement. Margaret Adams made a positive identification of Carter as the thief.

Dr. Wayne Soignier, a resident surgeon, was on emergency room duty at the Charity Hospital Clinic that night. After Carter was arrested and read his Miranda warnings, Dr. Soignier approached him and began an examination. The two arresting officers stepped a few feet away. When Dr. Soignier asked defendant how he had received his gunshot wounds, defendant stated that he had “. . . attempted to rob a lady and she pulled a gun out of her pocket and shot him.” (Tr., p. 13, 5/3/79). According to Dr. Soignier, defendant told the same story to several different people. Defendant was asked to repeat his answer to determine his rationality.

The only assignment of error is the ruling that the statement to Dr. Soignier was admissible. Defendant asserts that the statement, which was made for purposes of medical treatment, should have been excluded under the doctor-patient privilege provided in LSA-R.S. 15:476.

Three arguments are asserted by the State in support of the admissibility of the statement. The State first contends that the trial court correctly found that examination of the defendant by a state physician, while defendant was in custody, places the statement within the rule enunciated in State v. Berry, 324 So.2d 822 (La.1976). In Berry the testimony of the coroner who had examined the defendant shortly after his arrest was admitted over defense objection. Emphasizing that the defendant had not consulted the coroner for treatment, the court held the doctor-patient privilege did not extend to testimony of the results of an “in-custody physical examination of an accused by a state physician for the limited purpose of making objective findings as to his physical condition.” Id., at 828.

The first requirement for the privilege to attach is that the patient must have consulted the physician for treatment or for diagnosis looking toward treatment. State v. Berry, supra. Defendant entered Charity Hospital voluntarily for the express purpose of obtaining treatment for a gunshot wound. In this respect, defendant consulted a physician through the hospital’s services. As the physician on duty, Dr. Soignier provided the treatment as a member of the staff. His status as a resident surgeon in a state-owned hospital is immaterial under these circumstances.

Even though defendant was under arrest when he was examined by Dr. Soignier, this fact does not create the type of in-custody examination contemplated in Berry. The examination in Berry was conducted for the purpose of determining the defendant’s health prior to incarceration. Here the examination was not made incident to defendant’s arrest but was intended to provide medical treatment. In addition, the statement that was elicited differs from objective findings regarding the defendant’s physical condition, thus removing this situation from that faced in Berry.

The second prerequisite to attachment of the doctor-patient privilege is found in the requirement that the patient’s communication has been made in confidence to his physician. McCormick on Evidence, Section 101 (2d ed. 1972). The State argues that defendant did not intend to keep his statement confidential, because it was made in a crowded hospital corridor in the presence of two police officers. However, the testimony clearly shows that the two officers, who had stepped a few feet away, were not actually present when the statement was made. One officer testified that he could not recall hearing the statement; the other did not even see Dr. Soignier. A finding of intended confidentiality is further supported by the fact that the defendant refused to give a statement to the police immediately before speaking to the doctor.

Finally, the State argues that the statement is nevertheless admissible under the statutory exception to the hearsay rule provided for hospital records, under LSA-R.S. 13:3714. At the pretrial hearing to determine the applicability of the privilege, Dr. Soignier testified that he had recorded defendant’s statement in his medical history. After first testifying to his own knowledge of the statement, he read the statement from his notes in the hospital records. These records were marked but were not introduced at the hearing.

The statutory doctor-patient privilege has been held inapplicable to matters arising under the statutory hearsay exception provided in LSA-R.S. 13:3714. State v. O’Brien, 255 La. 704, 232 So.2d 484 (1970). In O’Brien the State introduced Charity Hospital records describing defendant’s illness as withdrawal symptoms and classifying him as a drug addict in order to show that the defendant had possessed morphine for an illegal purpose. In rejecting defendant’s assertion of the doctor-patient privilege, the court found the records were admissible under the statutory exception to the hearsay rule.

The State’s claim that the statement would be admissible under the O’Brien rationale is not well-founded, as the medical records were not introduced by the State. Defendant asserted the privilege with regard to the doctor’s testimony of the content of the statement. In establishing the privilege, the statute in question clearly prohibits disclosure of “any communication” made to the physician by his patient. LSA-R.S. 15:476. The medical records exception to the hearsay rule does not contemplate avoidance of the privilege by including confidential privileged communications in otherwise admissible records. The hearsay exception only applies to non-privileged matters. See Pugh, Doctor-Patient Privilege: Hospital Records, 31 La.L.Rev. 383 (1971).

Since the doctor-patient privilege clearly attached when defendant made this confidential communication to his doctor, the trial court erred in ruling that the doctor’s testimony about the statement was admissible.

For the reasons assigned, the guilty plea is set aside, the sentence is reversed, and the case is remanded for a new trial in accordance with the views expressed in this opinion.

PLEA VACATED; REVERSED AND REMANDED.

BLANCHE, J., dissents.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I consider that a statute creating the doctor-patient privilege should be strictly construed in that it precludes the introduction of relevant evidence not otherwise constitutionally protected. Under the circumstances of the instant case, I do not consider that defendant intended to keep his statement confidential. Accordingly, I respectfully dissent.

       Honorable EDWARD A. de la HOUSSAYE, III participated in this decision as Associate Justice ad hoc.

      . LSA-R.S. 15:476 provides:
      “No physician is permitted, whether during or after the termination of his employment as such, unless with his patient’s express consent, to disclose any communication made to him as such physician by or on behalf of his patient, or the result of any investigation made into the patient’s physical or mental condition, or any opinion based upon such investigation, or any information that he may have gotten by reason of his being such physician; provided, that the provisions of this article shall not apply to any physician, who, under the appointment of the court, and not by a selection of the patient, has made investigation into the patient’s physical or mental condition; provided, further, that any physician may be cross-examined upon the correctness of any certificate issued by him.”

      . LSA-R.S. 13:3714 provides:
      “Whenever a certified copy of the chart or record of any hospital in this state, signed by the administrator or the medical records librarian of the hospital in question, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the record is sought to be used may summon and examine those making the original of said record as witnesses under cross-examination.”


author: DENNIS, Justice.,

text:
    Dan A. RITCHEY, Jr. v. Rose Mary AZAR and Paul J. Azar, Sr.
    No. 65718.
    Supreme Court of Louisiana.
    April 7, 1980.
    Rehearing Denied May 19, 1980.

      Michael P. Pellegrin, Houma, for plaintiff-applicant.
    Claude B. Duval, Duval, Funderburk, Sundbery & Lovell, Houma, for defendants-respondents.
   DENNIS, Justice.,

The question of contractual interpretation presented in this case is whether plaintiff, Dan A. Ritchey, Jr., clearly agreed to compromise his libel action against defendants, Rose Mary Azar and Paul S. Azar, Sr. The trial and appellate courts held that Ritchey was precluded from bringing the libel action because it had been included in a compromise of a prior lawsuit between the parties. We conclude that the judgments below were erroneous and must be reversed. A transaction or compromise regulates only the differences which appear clearly to be comprehended in them by the intention of the parties. La.C.C. art. 3073. Although the libel action arose from pleadings filed in the compromised lawsuit, it does not clearly appear from the parties’ compromise agreement that they intended to resolve any differences other than that which was the subject of the compromised litigation, viz., a dispute over a contract to purchase immovable property.

The Azar defendants, however, have filed an exception of no cause of action for the first time in this Court. La.C.C.P. arts. 928 comment (a), 2163. In considering that exception we find that plaintiff’s petition fails to state a cause of action in that it fails to allege any fault on the part of the defendants. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Accordingly, the exception of no cause of action is sustained, and the case is remanded to the trial court and plaintiff is allowed fifteen days to amend his petition.

A review of the history leading to the present stage of this litigation is essential. The initial suit involving these parties centered around an agreement to purchase and sell certain immovable property, and the recordation of that agreement in the conveyance records of Lafayette Parish. Plaintiff and others were owners of the immovable property in question. The agreement to purchase and sell was never completely executed because necessary signatures of co-owners other than Ritchey were never obtained. The agreement was, however, recorded in the public records by the Azars.

Plaintiffs in the initial suit then sued to have the inscription removed alleging that the purchase agreement was without effect, having never been completed, and its recor-dation constituted an illegal cloud on plaintiffs’ title to the property. In the alternative, plaintiffs alleged that their possession had been civilly disturbed by the recordation of this document and asked to be recognized as being in possession of the property.

Defendants in the initial suit and in this suit, Rose Mary Azar and Paul J. Azar, answered that petition and filed a recon-ventional demand for specific performance or for damages for failure to perform the agreement. As a basis for their arguments, the Azars alleged that plaintiff Ritchey had agreed to obtain the needed signatures to effectuate the agreement to purchase and sell, but had failed to do so. Because of this, the Azars argued, Ritchey was es-topped to argue the failure of the agreement due to the lack of signatures.

Before a trial on the merits, the parties entered into a compromise to dispense with the litigation. It was agreed between the parties, and judgment was accordingly entered on August 10, 1977, that the agreement to purchase and sell be declared null and void and the inscription be erased from the records; that plaintiffs’ demand for damages which “resulted or may result from the filing of the document styled ‘Contract to Purchase and Sell’ ” be dismissed with prejudice; and, that defendants’ “re-conventional demand and the claim for damages asserted therein as well as any damages which may, in the future, be asserted by plaintiffs in reconvention as a result of defendants in reconvention’s (sic) failure to perform under the document described, above” be dismissed with prejudice.

On June 15, 1978 Ritchey filed a petition alleging that he had been injured by false statements made by defendants in their answer and reconventional demand in the original suit. The alleged defamatory statements are found in the following paragraphs of those pleadings:

“Paragraph 13
“At the time of the execution of the agreement to purchase and sell by plaintiffs Ritchey, Bertrand, Begnaud, Bernard and Fitzgerald, defendants were assured through plaintiff, Dan A. Ritchey, Jr., acting as agent for Mrs. Helena S. Chatelain, that she would sell the estate’s interest in the described property.
“Paragraph 14
“Plaintiff, Dan A. Ritchey, Jr., on April 7, 1977, represented to the defendants, who were in possession of the agreement to purchase and sell, that he would pick up the document in order to obtain the Chatelain signature because at the time she was away in North.Carolina.
“Paragraph 15
“Plaintiff, Dan A. Ritchey, Jr., after April 7, 1977, failed to exercise due diligence in obtaining the signature of Mrs. Helena S. Chatelain to fulfill his promise to do so.
“Paragraph 16
“By the above representations of plaintiff, Ritchey, acting for his co-vendors and by his own neglect and lack of good faith in dealing with the defendants, plaintiffs should be estopped from asserting the absence of the Chatelain signature on the document as alleged in Paragraph 4.”

Defendants filed an exception of res judi-cata arguing that this cause of action for defamation was precluded by the earlier compromise. Their rationale was that the plaintiffs had dismissed all claims arising out of the recordation of the agreement to purchase and sell. Since the alleged defamatory statements were made in pleadings filed in connection with the lawsuit concerning this agreement, they argue that the action of defamation arose out of the filing of that document. The trial judge sustained the exception of res judicata and the court of appeal affirmed. We granted cer-tiorari to review the lower court’s interpretation of the compromise agreement.

We must examine the compromise agreement which formed the basis for the judgment since a judgment obtained by consent of the parties gets its binding force and effect from the parties’ consent. La.C.C. art. 3078; Himel v. Connely, 195 La. 769, 197 So. 424, 426 (1940). The ultimate question for our decision, therefore, is whether the parties consented in the compromise of the initial suit to a preclusion of a future action for defamation.

The transaction or compromise is defined by Louisiana Civil Code article 3071 as follows:

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
This contract must be reduced into writing.

A transaction or compromise has also been described as “an onerous, synallagmatic, and consensual contract.” 6 La.Civ.L. Treatise, Litvinoff, Obligations, bk. 1, § 377, p. 639. Under the general rules pertaining to contracts, it is the law between the parties, La.C.C. art. 1901, and must be interpreted according to the-clear and explicit terms found in the agreement. La.C.C. art. 1945.

In addition, a court is governed in its interpretation of the operative language of a compromise by the rules of construction set forth in La.C.C. art. 3073, which provides:

Transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties, whether it be explained in a general or particular manner, unless it be the necessary consequence of what is expressed; and they do not extend to differences which the parties never intended to include in them.
The renunciation, which is made therein to all rights, claims and pretensions, extends only to what relates to the differences on which the transaction arises.

Therefore, the compromise under scrutiny in this case may be construed to preclude plaintiff’s suit for defamation only if it appears clearly that the parties intended to include it as a subject of their compromise.

Applying the codal rule of construction we conclude that the exception of res judicata should not have been sustained because the words of the compromise agreement do not clearly evince the parties’ intention to preclude the plaintiff’s, libel action.

The dispute bringing on the initial lawsuit centered around the title to certain immovable property as it was affected by the recordation of the agreement to purchase and sell. The language of the compromise very pointedly indicates an intent to settle all disputes regarding title to the property that had arisen out of the recordation of the agreement to purchase and sell. We believe that the primary intent of the parties, as evinced by the circumstances and the contract language was to clear up any dispute which would affect title or merchantability of title to the immovable property. That this was the primary intent is evinced by the very first clause of the stipulation wherein the parties agreed that the contract to purchase and sell be declared null and void and that the inscription be erased from the record. In the subsequent paragraphs the parties agreed to settle all disputes arising from the recordation of the document and from Ritchey’s alleged failure to perform. This agreement frees the title of the property from any problems of unmerchantability caused by future litigation and serves the obvious purpose of the settlement — to clear title to the property. We do not find that the language used indicates an intention of the parties to compromise a cause of action in defamation which would not affect the status or merchantability of the title to the property which was the subject of the first litigation.

Our belief that the parties did not intend to compromise this defamation action is strengthened by the fact that they failed to use language in the contract which would have clearly provided for waiver of that future action. Cassidy v. Joseph, 205 La. 664, 16 So.2d 225, cited in plaintiff’s and defendants’ briefs and in the court of appeal opinion, concerned facts very similar to those presented in the instant suit. There, a suit was filed to recover damages suffered because of allegedly libelous allegations made by defendant in pleadings of a previous suit which had been ended through a compromise agreement. The trial court sustained a plea of res judicata and this Court affirmed noting that the language used by the parties evinced an intent to dismiss the defamation action as a part of the compromise agreement.

This Court in Cassidy, supra, held that contractual language stating that the compromise agreement was to “Settle all claims between [the parties] of any nature or kind whatsoever and dismiss all pending litigation” was sufficiently broad to reflect the parties’ intention to forego a future action for defamation. If the parties’ intent in compromising the initial suit involving Rit-chey and the Azars had been to prohibit a future suit for defamation, that result could have been assured by using the language approved for that result in Cassidy.

As between the parties, a compromise has a force equal to the authority of the thing adjudged which supplies the basis for an exception of res judicata. La.C.C. art. 3078. Since we find no agreement to compromise the action for defamation, there is no basis for a valid exception of res judicata barring this defamation suit. We must, therefore, reverse the judgments of the trial court and court of appeal sustaining the exception of res judicata.

A decision of the contractual interpretation issue does not complete our review, however. Defendants have filed a peremptory exception of no cause of action for the first time in this Court. La.C.C.P. arts. 928, comment (a); 2163. We find that defendants’ exception has merit.

The cause of action in defamation is one which has been examined by both state and federal courts. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) the United States Supreme Court examined the law on defamation as it relates to the First Amendment rights of freedom of speech and of the press. The high court held that as concerns private individuals there should remain with each state a wide latitude in defining the standard of recovery for defamation. That statement was qualified, however, by a prohibition against using “liability without fault” as a standard of liability. Gertz, supra, 418 U.S. at 346-47, 94 S.Ct. at 3010. Therefore, no cause of action is stated by a petition which does not allege fault on the part of the defendant.

Ritchey’s original petition asserts only that the statements constituting the alleged defamation are untrue and result in injury to him. He did not allege in any way that the defendants were at fault in making the statements. Because these necessary allegations are lacking,- defendants’ exception of no cause of action is sustained.

We do not, however, dismiss plaintiff’s action. Louisiana Code of Civil Procedure article 934 provides:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.

Since it is possible for Ritchey to cure the defect in his petition by amendment, he is given fifteen (15) days from the date that this decision becomes final within which to do so.

The court of appeal ruling sustaining the exception of res judicata is reversed. However, the defendants’ exception of no cause of action, filed for the first time in this court, is sustained. Plaintiff is given fifteen (15) days from the date this decision becomes final to amend his petition to correct the deficiency giving rise to the exception of no cause of action. The matter is remanded to the trial court for further proceedings.

BLANCHE, J., dissents being of the opinion that the trial court and court of appeal opinions were correct.

WATSON, J., recused.

APPENDIX

The compromise agreement reads as follows:

“RELEASE

“KNOW ALL MEN BY THESE PRESENTS: That, for and in consideration of the mutual dismissal of the claims in the law suit entitled ‘Robert B. Bernard, Sr., and James S. Fitzgerald, St., [sic] Trustees, et al vs. Rose Mary Azar and Paul J. Azar, 15th Judicial District Court, Civil Docket No. 69424, Parish of Lafayette, Louisiana”, the said Robert B. Bernard, Sr., and James S. Fitzgerald, Sr., Trustees of the ‘J. Alfred and Pearl F. Begnaud Trust”, Dan A. Rit-chey, Jr. and Lucien C. Bertrand, Jr. do by these presents, release, remise and forever discharge Rose Mary Azar and Paul J. Azar from any and all liability arising out of the recordation of the document styled ‘Contract to Purchase and Sell’ recorded under Entry No. 77-8990 in the records of the office of the Clerk of Court for Lafayette Parish, Louisiana on May 9, 1977, including damages which have resulted or may result from the filing of said document and including any claim for attorney’s fees incurred as a result of the above-named litigation.

“Rose Mary Azar and Paul J. Azar do by these presents release, remise and forever discharge Robert B. Bernard, Sr., James S. Fitzgerald, Sr., Trustees of the ‘J. Alfred and Pearl F. Begnaud Trust’, Dan A. Rit-chey, Jr. and Lucien C. Bertrand, Jr., from any and all liability which has resulted or may result from their failure to perform under the document styled ‘Contract to Purchase and Sell’ recorded under Entry No. 77-8990 in the records of the office of the Clerk of Court for Lafayette Parish, Louisiana including any claim for attorney’s fees incurred as a result of the above-named litigation.”

       The Honorable JAMES C. GULOTTA participated in this decision as an Associate Justice ad hoc.

       The Honorable EDWARD A. de la HOUS-SAYE, III participated in this decision as an Associate Justice pro tempore.

      . See Appendix for text of the compromise agreement.

      . The view that allegations of falsity alone satisfy the “fault” requirement was rejected by the majority. See 418 U.S. at 347, n. 10, 94 S.Ct. at 3010; 418 U.S. 369, 94 S.Ct. 3022 (White, J., dissenting).

      . Although reference is made in defendants’ brief to a supplemental petition, the filing of such petition was obviously not properly completed and it is not in the record before us for our consideration.


author:
DENNIS, Justice.
     MARCUS, Justice

text:
    STATE of Louisiana v. Barbara Gail FONTENOT.
    No. 65773.
    Supreme Court of Louisiana.
    April 7, 1980.
    Rehearing Denied May 19, 1980.

      James D. Sparks, Jr., Monroe, for defendant-appellant.
    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.
   DENNIS, Justice.

In this criminal case we are called upon to decide whether there were exigent circumstances justifying police officers in directing a physician to conduct a warrantless search of a woman’s genital canal for nar-cotíes. We conclude that the officers were not confronted with an emergency warranting their failure to obtain a warrant. Under the circumstances of the case, a delay necessary to obtain a warrant did not threaten the destruction of the evidence. Accordingly, defendant’s conviction and sentence based on the unlawful warrantless search and seizure must be reversed, and the case must be remanded for further proceedings.

Defendant, Barbara Gail Fontenot, was charged by bill of information with the crime of possession of seconal, a violation of La.R.S. 40:967(C). Defendant’s motion to suppress the evidence was denied by the trial court following a hearing on the motion. Defendant entered a plea of nolo contendere and reserved her right to take an appeal from the ruling on the motion to suppress. Defendant was sentenced on August 3, 1979 to serve three years at hard labor. She appealed from her conviction and sentence assigning the trial court’s failure to grant her motion to suppress as error.

On December 29, 1977 the defendant, along with another woman, Ann Hogan, entered a drugstore in Rayville, Louisiana and presented a prescription for seconal to the pharmacist. The pharmacist, suspecting that the prescription was a forgery, called the physician for verification. When the doctor informed the pharmacist that he had not written the prescription, the pharmacist telephoned the police and filled the prescription. Upon receipt of the filled prescription the two women left the drugstore with a small bottle of seconal capsules; however, the police arrived prior to their departure in Ann Hogan’s automobile. Ms. Hogan and Ms. Fontenot were taken to the police station and advised of their rights. After a brief interrogation, they were formally arrested for forging a prescription.

Ms. Hogan consented to a search of her vehicle, but the search failed to produce the bottle of seconal. The two women were stripped naked and searched by a female deputy but the pill bottle was not found. After the strip-search Ms. Hogan informed a police officer that the pill bottle was inside Ms. Fontenot’s vagina. The two women were taken to the Richland Parish Hospital and examined by the parish coroner. As a result of a pelvic examination of Barbara Fontenot, the pill bottle was retrieved.

The government’s right to search the person of the accused when legally arrested to discover and seize the fruits or evidence of crime has little applicability to searches involving intrusions beyond the body’s surface. Such intrusions are forbidden by the Fourth Amendment unless (1) there is a clear indication such evidence will be found; (2) the search is authorized by a warrant issued by a neutral and detached magistrate, absent an emergency which threatens destruction of the evidence during the delay necessary to obtain a warrant; and (3) the search or intrusion is performed in a reasonable manner. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

Applying the Schmerber principles, we conclude that in the present case no emergency or exigent circumstances prevented the officers from seeking out a magistrate to secure a warrant. The facts clearly indicated that the defendant had secreted the bottle of seconal pills in her vagina. The arresting officer testified that a search warrant could have been obtained from a judge in a neighboring parish within one and one-half to two hours. During the delay the defendant could have been guarded and prevented from destroying the evidence by the female officer who was on duty at the time. Since the seconal capsules were enclosed in a pill bottle there was no danger that they would be absorbed or destroyed by the woman’s body during the delay.

The present case is distinguishable from others in which there was a real danger that the evidence would have been destroyed had the officers delayed to get a warrant. See State v. Winfrey, 359 So.2d 73 (La.1978); State v. Wood, 262 La. 259, 263 So.2d 28 (1972).

The prosecution’s contention that the search was conducted pursuant to a valid consent is meritless. The evidence shows beyond dispute that Ms. Fontenot was never asked for her permission to search. Instead, the record reflects that she acquiesced to an implicit claim of lawful authority by the officers.

The defendant was never asked for her permission to search her body cavity. She was taken into custody, taken to the police station, interrogated and formally arrested. After she had been stripped naked and searched by a female officer, she was taken to the hospital where she was informed by the male police officers and the coroner that a search of her genital canal would be performed. She was not asked for permission and she granted none either verbally or in writing. When she was told that she would be searched, the defendant nodded her head and submitted peacefully to the intrusion.

When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921). The claim of such a right, though not expressly stated, is implicit when the police, instead of asking for permission to make the search, say that they have come to search or that they are going to search. Amos v. United States, supra; Johnson v. United States, supra; Ferrara v. State, 319 So.2d 629 (Fla.App.1975); State v. Ahern, 227 N.W.2d 164 (Iowa 1975); LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 8.2 p. 641 (1978).

Under the circumstances of the present case, the prosecution’s evidence shows no more than Ms. Fontenot’s acquiescence to a claim of lawful authority. It is conceivable that a person could give a voluntary and uncoerced consent to a probe of her interior organs after being arrested, interrogated and strip-searched at the stationhouse, and told she would be examined internally by the coroner. But a mere nodding of the head and peaceful submission in the present case more than likely indicated that Ms. Fontenot chose to yield to a claim of lawful authority or other implied coercion. Perhaps an extraordinary person possessing unusual knowledge would not be coerced by these circumstances and would be capable of giving free and voluntary consent. In' the instant case, however, the state has not carried its burden of showing that there were unusual circumstances or characteristics of the defendant which would justify a conclusion that her actions signified consent.

For the foregoing reasons, the defendant’s conviction and sentence are reversed and the case is remanded for further proceedings.

REVERSED AND REMANDED.

WATSON, J., dissents.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

In my view, there was an emergency which threatened the destruction of the evidence during the delay necessary to obtain a warrant, i. e., defendant could have disposed of the evidence upon request to relieve herself. Moreover, I consider defendant acquiesced in the intrusion. Accordingly, I respectfully dissent.

       The Honorable PAUL B. LANDRY, Jr., (Retired) participated in this decision as an Associate Justice pro tempore.