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

text:
    VULCAN FOUNDRY, INC. v. Shirley McNAMARA, Secretary of the Department of Revenue and Taxation, State of Louisiana.
    No. 80-C-1824.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
    On Rehearing May 17, 1982.
    Rehearing Denied June 18, 1982.
    Riley F. Boudreaux, Jr., Lutcher, for defendant-applicant.
    G. William Jarman and R. Gordon Kean, Jr. of Sanders, Downing, Kean & Cazedes-sus, Baton Rouge, for plaintiff-respondent.
   LEMMON, Justice.

The issue in this litigation is whether coke purchased by Vulcan Foundry, Inc. for use in manufacturing manhole covers and rims is exempt from sales and use tax.

Vulcan paid under protest an assessment for sales and use tax, contesting that portion of the assessment based on purchases of coke. Contending that these purchases were exempt from taxation either under R.S. 47:301(10) or 305(4), Vulcan filed this action. The trial court rendered judgment in favor of Vulcan, finding both exemptions applicable. The court of appeal affirmed, without reaching the issue as to the second exemption. 387 So.2d 1318 (La.App.).

We granted certiorari to review that judgment. 392 So.2d 693 (La.).

I.

The product standards for the manhole covers and rims manufactured at Vulcan’s Louisiana plant require a minimum percentage of carbon content, depending upon the thickness of the particular product. Because scrap iron, the basic raw material used in the manufacturing process, does not have sufficient carbon content initially and then loses some carbon in the process, carbon must be added during the process to attain the required carbon content in the final product.

Vulcan uses coke (which is 90% carbon) both as fuel for heating and melting the scrap iron and as a source of carbon for raising the carbon content of the final product. In the process Vulcan preheats coke and places a five-foot layer in a cylindrical heating structure called a cupola. Scrap iron and unheated coke are then charged into the cupola in layers on top of the preheated coke. When the iron melts, it permeates the layer of red hot coke. The impurities are then separated from the iron, and the melted iron is poured into forms.

Although natural gas or electrical furnaces could be used, Vulcan uses coke in its process, not only because coke is an efficient fuel, but also because coke provides the additional benefit of adding carbon content to the finished product. The ratio of coke to iron in each batch is regulated, depending upon the quality of the scrap iron, in order to achieve the desired carbon content.

II.

Vulcan contends that its purchases of coke are exempt from sales or use tax because (1) the coke makes up part of the finished product and thus under R.S. 47:301(10) constitutes a material purchased “for further processing into articles of tangible personal property”, and (2) the coke constitutes fuel within the contemplation of R.S. 47:305(4).

Difficult questions are frequently presented in cases involving the applicability of the sales and use tax to materials which are used in the manufacturing process and which become a component or ingredient of the ultimate product. See 9 Tax L.Rev. 435 (1954); 30 A.L.R.2d 1439 (1953). In Traigle v. PPG Industries, Inc., 332 So.2d 777 (La.1976), this court held that graphite blades, which are used (and consumed) in the electrolytic production of chlorine and which appear in the manufactured product only as a useless waste material (which could be removed if economically feasible), were not purchased for processing “into” the manufactured product. The court observed that the graphite was not a recognizable integral part or a component part of the ultimate product and held that the graphite was taxable to the manufacturer as the ultimate consumer of that material.

The present case involves even more difficult questions, since carbon from the coke used in the process was an integral and necessary, although minute, component of the manufactured product. We pretermit decision on these important legal and policy questions because we conclude the coke was exempt as coal used as a boiler fuel within the contemplation of R.S. 47:305(4).

When the current sales and use tax laws were enacted by Acts 1948, No. 9, Section 5(d) provided an exemption for gasoline, steam, water and electrical power or energy. Acts 1973, Ex.Sess. No. 13 added “fuel oil and coal when used for boiler fuel” as exemptions under R.S. 47:305(4), perhaps in a legislative attempt, in line with the trend of the times, to encourage conversion to fuel oil and coal and to conserve natural gas.

We first conclude that coke is coal, although the Department of Revenue and Taxation, urging strict statutory construction o£ exemptions, contends coke is only a derivative of coal. The evidence shows that coke is the residue of coal after volatile materials have been expelled by destructive distillation. Coke is therefore simply a more efficient form of coal for use as a fuel and should be included within the statutory exemption, if the coke is used as a boiler fuel.

Boiler fuel is not defined in the statute or in Webster’s Third New International Dictionary (1971). Since the term is peculiar to industrial plant operations, it is reasonable to view legislative use of the term as applicable to any fuel used to supply energy in an industrial plant.

The Department apparently agreed with this view when it published on August 1, 1974 its Official Regulations interpreting the 1973 amendment to R.S. 47:305 as follows:

“Fuel oil or coal are exempt from sales tax when they are to be used as a power source in an industrial plant or as a substitute for natural gas being used as a fuel.”

In the manufacturing process used by Vulcan, all of the coke that is burned is used to heat and melt the scrap iron (although some of the coke incidentally allows carbon pickup by the molten metal). The coke is therefore a fuel or combustible substance which in its entirety is used to provide heat energy in the manufacturing process of an industrial plant.

We accordingly conclude that the Legislature in its 1973 amendment to R.S. 47:305(4) intended to exempt from sales and use tax any coal which is used by the taxpayer as an energy source in an industrial plant or as a substitute fuel for natural gas and that the coke used by Vulcan in its manufacturing process qualifies for that exemption. The judgment is affirmed.

WATSON, J., concurs in the result.

DIXON, C. J., and CALOGERO, J., dissent and assign reasons.

DENNIS, J., dissents with reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent. I do not understand that any boilers are involved in this case, nor any boiler fuel.

CALOGERO, Justice,

dissenting.

I dissent from the majority opinion, being of the view that La.R.S. 47:305 only exempts coal from taxation when it is to be used for boiler fuel. In the present case, Vulcan Foundry, Inc. did not use the coke for boiler fuel, but rather, to directly provide the heat to melt the scrap iron. While it is true that Vulcan used the coke as the heat source for melting the iron so that quantities of carbon which were necessary to the final product would be added to the iron during this process, that factor presents the question of whether the coke should be exempt from taxation under La. R.S. 47:301(10) as a material purchased “for further processing into articles of tangible personal property,” and not under La.R.S. 47:305 as boiler fuel.

DENNIS, Justice,

dissenting.

I respectfully dissent.

La.R.S. 47:305 exempts from taxation the sale at retail, the use, the consumption, the distribution and storage to be used or consumed in this state of coal when used for boiler fuel. Vulcan Foundry, Inc. utilizes coke to produce heat for melting scrap iron and to add necessary, though small, quantities of carbon to the iron. Accordingly, the coke does not constitute coal used for boiler fuel and is not exempt under this section.of the statute.

ON REHEARING

MARCUS, Justice.

We granted a rehearing to reconsider whether the coke used by Vulcan Foundry, Inc. in its manufacturing process is exempt from Louisiana sales/use tax. A review of the facts is necessary to make this determination.

Vulcan manufactures manhole covers and rims, drain grates and other “municipal castings” at its plant in Denham Springs. The castings are made of ACTM Class 30 gray iron. Vulcan makes this grade of iron by melting down scrap iron in a large cylindrical-shaped structure known as a cupola. A five-foot bed of heated coke is placed in the bottom of the cupola. Scrap iron and coke are then added in alternating layers. Cold air and liquid oxygen are injected to increase the temperature to the 2400 to 3000 degrees necessary to melt the scrap iron. The molten iron is drained from the bottom of the cupola, separated from the slag and poured into easting forms.

The Department of Revenue and Taxation notified Vulcan that sales taxes were owed on purchases of coke and liquid oxygen between December 1,1974 and September 30, 1977. Vulcan protested the proposed assessment and thereafter paid part of the tax alleged to be due, reserving its right to sue for a refund. Vulcan then instituted this action. The trial court held that sales/use tax was owed on the liquid oxygen but concluded that coke was exempt under both the “reprocessing exclusion” and the “boiler fuel” exemption. Department appealed from that portion of the judgment exempting Vulcan’s use of coke. The court of appeal affirmed finding that the reprocessing exclusion was applicable; however, it did not reach the issue of whether coke was exempt as .boiler fuel. On Department’s application, we granted certiorari to review the correctness of that decision. On original hearing, we pretermitted consideration of the reprocessing exclusion because we concluded that the boiler fuel exemption applied. Thus, we affirmed the judgment of the court of appeal. We granted a rehearing to reconsider whether the boiler fuel exemption had been properly construed.

Louisiana imposes a three percent tax on tangible personal property that is sold at retail in this state. La.R.S. 47:302(A)(1) and 321(A)(1). There is also a three percent tax on such property bought out-of-state but used, consumed, distributed and stored for use or consumption in this state. La.R.S. 47:302(A)(2) and 321(A)(2). The idea is to impose the sales/use tax on the transaction by which the ultimate consumer receives the particular item. However, the legislature has excluded and exempted various items from that tax. One such exemption is the sale and use of “... coal when used for boiler fuel.”

Vulcan uses coke, which is a derivative of coal, to melt its scrap iron. The process involves placing the scrap iron and pre-heated coke into a cupola which we concluded, on original hearing, served the same purpose as a boiler. In so doing, we broadly construed the intent of the exemption in derogation of the well-established rule that exemptions from taxation are to be strictly construed and must be clearly and unequivocally and affirmatively established. Roberts v. City of Baton Rouge, 236 La. 521, 108 So.2d 111 (1958) (on rehearing).

Though the term “boiler” is not defined in the statute, we do not think the legislature contemplated a cupola in which scrap iron is melted. The typical boiler is used to convert water into steam. It consists of a furnace, a surface to transmit heat from the furnace to the water and a space where steam can form. Additionally, the steam is contained in such a way as to make use of the pressure which is created, rather than the heat. On the other hand, a cupola has no furnace or surface to transmit heat; rather, the heat is provided inside of the cupola by the coke. Moreover, the purpose of the heat is to melt the scrap iron rather than to create pressure. Another difference is that a boiler converts a liquid to a gas, but here a solid is being converted to a liquid. In essence, a cupola is nothing more than a large crucible (container for melting or testing metals).

The legislature did not exempt coal (or its derivative, coke ) when used for any purpose other than boiler fuel. Here, the coke is used to melt the scrap iron. It is not used to operate a boiler. Accordingly, we conclude that Vulcan failed to clearly, unequivocally and affirmatively establish it was entitled to this exemption from sales/use tax.

We must now consider whether Vulcan’s purchase and use of coke fall within the “reprocessing exclusion.” As indicated above, Louisiana taxes the sale at retail, the use, consumption, distribution and storage for use or consumption of tangible personal property, whether or not it is bought in this state. La.R.S. 47:302(A) and 321(A). A retail sale is defined in La.R.S. 47:301(10) to mean:

a sale to a consumer or to any person for any purpose other than for resale in the form of tangible personal property, and shall mean and include all such transactions as the collector, upon investigation, finds to be in lieu of sale; provided that sales for resale must be made in strict compliance with the rules and regulations ....
The term “sale at retail” does not include sales of materials for further processing into articles of tangible personal property for sale at retail, nor does it include an isolated or occasional sale of tangible personal property by a person not engaged in such business.!! [Emphasis added.]

Thus, if the item is bought for further processing into articles of tangible personal property for sale at retail, no sales/use tax is owed. If, on the other hand, the item is part of the manufacturing process, then the manufacturer is the ultimate consumer and sales/use tax is owed on the transaction.

We previously considered the reprocessing exclusion in Traigle v. P.P.G. Industries, Inc., 332 So.2d 777 (La.1976). That case involved the manufacture of chlorine. Graphite blades were used to make anodes so that electricity could pass through salt water brine in such a way as to break down the brine into its component parts. During this process, the graphite blades were consumed, but about sixty percent of the original anodes were present in the finished product. We held that the graphite blades were taxable to the manufacturer because they were not purchased for further processing into the chlorine. The test we set out for determining whether an item is subject to sales/use tax is the “purpose” for which it was purchased.

The court of appeal distinguished the instant case from PPG because, in PPG, the residue found in the final product was useless waste material and of the nature of an impurity. Here, the presence of carbon in the final product is beneficial to Vulcan. The proper inquiry, however, is the purpose for which the coke is bought.

Vulcan argues that the purpose of using coke is to process carbon into the iron for sale at retail. It points out that ACTM Class 30 gray iron must contain between 3.10 and 3.30 percent carbon. Since the scrap iron does not always contain sufficient carbon, and the melting process results in a loss of carbon, carbon must be added to the iron in some way. One method is to use coke as a heat source because it gives off carbon as it burns. The required carbon content is achieved by varying the ratio of coke to scrap iron in the cupola. Dr. Tabony, a mechanical engineer and metallurgist, testified that his testing indicated that using coke resulted in a net increase in carbon of .46 percent. Dr. Williams, an expert in the chemistry of foundry products, explained that statement as follows:

If there is an apparent increase of .46 percent carbon in the final product going through this process, that means that for each hundred pounds of product produced you are going to pick up .46 pounds of carbon from the coke. That’s just in terms of definition of percentage. For each hundred pounds of final product produced, it’s going to pick up .46 pounds of carbon from the coke. Now, if the ratio of coke to metal is one to eight that says that you used 12y2 pounds of coke to produce that hundred pounds of final product. If .46 percent went into the coke the rest of it went — pounds per hundred went into coke, the rest went into heat, which is 12.04 pounds. So for every 12V2 pounds of coke used 12.04 went into heat net, and I don’t see any way to avoid that from the testimony, and .46 pounds — almost a half a pound — went into the metal produced on a hundred pounds produced basis. Now there is a point, however, made by Dr. Tabony that may well be true, namely that if you don’t have the metal surrounded with that much coke, you won’t get that much carbon in the metal. But that does not obscure the fact that I think I can only say 12.04 pounds goes into heat out of every 12V2 pounds and .46 goes into the product.

Dr. Tabony further testified that coke is used because it burns easily and has less volatile gases. Mr. Morgan, vice president and general manager of Vulcan, testified that natural gas or electrical induction furnaces could be used but that coke is a very efficient fuel. He stated that the addition of carbon was a secondary benefit. Moreover, there was evidence that carbon could be added to the molten iron in the form of carbon brickettes.

It is clear from the evidence in this case that coke is purchased for the purpose of heating the scrap iron; the small amount of carbon in the finished product is incidental. The fact that using coke as a fuel has a beneficial side effect does not change the purpose for which it is bought. Accordingly, we conclude that Vulcan’s purchase of coke is as a “consumer” for a “purpose other than for resale,” that is, for its use as a heat source to melt scrap iron and not for further processing into an article of tangible property for sale at retail. Hence, the court of appeal erred in concluding that Vulcan is not liable for the sales/use tax on the coke purchased by it for use in the manufacture of “municipal castings” made of ACTM Class 30 gray iron. We must reverse.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed. Judgment is rendered in favor of defendant Shirley McNamara, Secretary of the Department of Revenue and Taxation, State of Louisiana, and against plaintiff, Vulcan Foundry, Inc., dismissing its suit at its cost.

WATSON, J., dissents, being of the opinion that the original decision of this Court was correct.

      . Most of the carbon pickup is achieved when the molten metal passes through the coke layer.

      . If natural gas or electrical furnaces were used, the manufacturer would have to add expensive carbon briquettes to the melted iron to achieve the required carbon content.

      . The usual scheme of sales/use tax statutes is to tax only the ultimate consumer.

      . R.S. 47:305 lists a number of specific exemptions from sale and use tax. Subsection 4, at the time of the sales at issue (1974-1977) in this litigation, exempted:
      “The sale at retail, the use, the consumption, the distribution and the storage to be used or consumed in this state of the following tangible personal property.... Gasoline; steam; water (not including mineral water or carbonated water or any water put up in bottles, jugs, or containers all of which are not exempted); electric power or energy; ... natural gas; and fuel oil and coal when used for boiler fuel_” (Emphasis supplied.)

      . By Acts 1980, No. 159, the Legislature now exempts “all energy sources when used for boiler fuel.”

      . While the Department’s expert chemist testified that coke is not a “power source” in Vulcan’s operations, he conceded that heat from the coke is the “energy source” and quibbled only with the loose use of the word “power”, when no power (defined as the time rate at which work is done) is actually involved in the process.

      . La.R.S. 47:1563 provides:
      The taxpayer, within fifteen calendar days from the date of the notice provided in R.S. 47:1562 may protest thereto. This protest must be in writing and should fully disclose the reasons, together with facts and figures in substantiation thereof, for objecting to the collector’s determination. The collector shall consider the protest, and in his discretion may grant a hearing thereon, before making a final determination of tax, penalty and interest due.

      . La.R.S. 47:1576 provides in pertinent part:
      A. A right of action is hereby created to afford a remedy at law for any person aggrieved by the prohibition of courts restraining the collection of tax, penalty, interest, or other charges imposed in this Subtitle. The person resisting the payment of any amount found due by the collector, or of enforcement of any provisions of this Subtitle, shall remit the amount found due to the collector and at that time shall give notice of his intention to file suit for the recovery thereof. Upon receipt of this notice, the amount remitted shall be placed in an escrow account and held by the collector or his duly authorized representatives for a period of thirty days. If suit is filed within the thirty-day period for the recovery of such amount, the funds in the escrow account shall be further held pending the outcome of the suit. If the person prevails, the collector shall refund the amount to the claimant, with interest at the rate of six percent per annum covering the period from the date the funds were received by the collector to the date of refund.

      .La-.R.S. 47:302(A)(1) provides:
      A. There is hereby levied a tax upon the sale at retail, the use, the consumption, the distribution, and the storage for use or consumption in this state, of each item or article of tangible personal property, as defined herein, the levy of said tax to be as follows:
      (1) At the rate of two per centum (2%) of the sales price of each item or article of tangible personal property when sold at retail in this state; the tax to be computed on gross sales for the purpose of remitting the amount of tax due the state, and to include each and every retail sale.
      La.R.S. 47:321(A)(1) provides in pertinent part:
      A. In addition to the tax levied by R.S. 47:302A and collected under the provisions of Chapter 2 of Title 47, there is hereby levied an additional tax upon the sale at retail, the use, the consumption, the distribution, and the storage for use or consumption in this state, of each item or article of tangible personal property, as defined in said Chapter 2, ... the levy of said tax to be as follows: (1) at the rate of one percentum of the sales price of each item or article of tangible personal property when sold at retail in this state; the tax to be computed on gross sales for the purpose of remitting the amount of tax to the state, and to include each and every retail sale.

      .La.R.S. 47:302(A)(2) provides:
      A. There is hereby levied a tax upon the sale at retail, the use, the consumption, the distribution, and the storage for use or consumption in this state, of each item or article of tangible personal property, as defined herein, the levy of said tax to be as follows:
      (2) At the rate of two per centum (2%) of the cost price of each item or article of tangible personal property when the same is not sold but is used, consumed, distributed, or stored for use or consumption in this state; provided there shall be no duplication of the tax.
      La.R.S. 47:321(A)(2) provides in pertinent part:
      A. In addition to the tax levied by R.S. 47:302A and collected under the provisions of Chapter 2 of Title 47, there is hereby levied an additional tax upon the sale at retail, the use, the consumption, the distribution, and the storage for use or consumption in this state, of each item or article of tangible personal property, as defined in said Chapter 2, ... the levy of said tax to be as follows:
      (2) at the rate of one percentum of the cost price of each item or article of tangible personal property when the same is not sold but is used, consumed, distributed or stored for use or consumption in this state; provided that there shall be no duplication of the tax.

      . La.R.S. 47:305(4), as amended by Acts 1973, Ex.Sess., No. 13, provided the following exemption:
      The sale at retail, the use, the consumption, the distribution and the storage to be used or consumed in this state of the following tangible personal property.... Gasoline; steam; water (not including mineral water or carbonated water or any water put up in bottles, jugs, or containers all of which are not exempted); ... natural gas; and fuel oil and coal when used for boiler fuel.... [Emphasis added.]
      Subsequent to the tax years in question, this section was amended by Acts 1980, No. 159, to exempt “all energy sources when used for boiler fuel.”

      . See also State ex rel Kemp v. City of Baton Rouge, 215 La. 315, 40 So.2d 477 (1949); Meyers v. Flournoy, 209 La. 812, 25 So.2d 601 (1946); State v. Pittsburgh Testing Laboratory Corp., 203 La. 147, 13 So.2d 710 (1943); Standard Oil Co. of Louisiana v. Fontenot, 198 La. 644, 4 So.2d 634 (1941).

      . Encyclopedia Britannica, Micropaedia Vol. II, page 123 (1974 ed.)

      . Encyclopedia Britannia, Micropaedia Vol. Ill, page 265 (1974 ed.)

      . Vulcan’s expert witness testified that coke is produced by placing coal in an oven and baking it in the absence of air in order to expel the volatile gases.

      .La.R.S. 47:301(10) was amended by Acts 1980, No. 756, § 1. However, the changes made are not relevant to the instant case.


source: Caselaw Access Project

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

license: Public Domain

text:
    Mrs. Myrtle Devall ANDRUS, et al. v. Kenneth H. KAHAO, J. King Woolf, Jr. and Ashland Plantation, Inc.
    No. 81-C-1678.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
    On Rehearing May 17, 1982.
    Rehearing Denied July 2, 1982.

      John L. Olivier, and John Tarlton Olivier, of Olivier & Brinkhaus, Sunset, for plaintiff-applicant.
    R. Gordon Kean, Jr., and Gary A. Bezet, of Sanders, Downing, Kean & Cazedessus, Baton Rouge, for defendants-respondents.
    John M. McCollan, of Gordon, Arata, McCollman & Stuart, New Orleans, George W. Hardy, III, of Broadhurst, Brook, Man-gum, Hardy & Reed, Lafayette, John C. Christian & Claude E. Hall, of Milling, Benson, Woodard, Hillyer, Pierson & Miller, New Orleans, Amicus Curiae, for defendants-respondents.
   LEMMON, Justice.

This is a suit to recover one-half of the bonus money and delay rentals paid to defendants under a mineral lease. The issue is whether plaintiffs’ grant to defendants of the exclusive right to enter into mineral leases included the right to retain bonuses and rentals payable under leases subsequently executed by defendants pursuant to that grant.

I.

In 1969 plaintiffs sold certain immovable property to defendants Kahao and King. The act of sale contained the following provision:

“Sellers herein reserve an undivided one-half interest in and to all the outstanding minerals, the other undivided one-half interest being conveyed herein to Purchasers. The Purchasers shall have the exclusive right without the necessity of securing the joinder or consent of Sellers to enter into any oil, gas or mineral leases as they may deem fit, and such terms and conditions as they may deem fit and proper, provided, however, that no lease be executed for less than a one-sixth royalty.”

These defendants subsequently sold the property to defendant Ashland Plantation, Inc. In 1973 Ashland entered into an oil, gas and mineral lease, and the lessee paid Ashland the bonuses and annual rentals due under the terms of the lease.

Plaintiffs claimed a share of the bonuses and rentals, ultimately filing this suit when Ashland rejected their claim. The trial court maintained defendants’ exception of no cause of action, and the court of appeal affirmed. 400 So.2d 1194. We granted cer-tiorari to review those judgments. 404 So.2d 280.

II.

Generally, only the landowner (who has. not completely divested himself of mineral servitude rights) and the servitude owner have the right to lease property for mineral exploration and to share in bonus money and delay rentals due under the lease. On the other hand, the royalty owner has no right to lease or to share in bonuses and rentals, but has only the right to receive a fractional share of the production in the event that production is achieved. Humble Oil Refining Co. v. Guillory, 212 La. 646, 33 So.2d 182 (1947). Of course, the party with the right to lease (because of being a landowner or a servitude owner) can grant that right to another. The instant case presents the question: when a party with the right to lease grants merely that exclusive right to another party, does the grant also convey the right to receive bonuses and rentals, in the absence of an express provision in the contract? Determination of this question fundamentally involves the intention of the parties to the contract in which the exclusive right to enter into leases was granted.

At the time the contract was executed there was no statutory law providing for the transfer or retention of the right to receive bonuses and rentals when a party with the right to lease granted that right to another. In the absence of positive law or an express provision in the contract regarding the transfer or retention of the right to receive bonuses and rentals, the intention of the parties is the determinative factor. C.C. Art. 1945. Thus, the decision in this case depends upon the intent of the parties.

The interpretation of the contractual provision adopted by the lower courts is that the parties implicitly intended for plaintiffs to transfer their right to receive bonuses and rental, thereby effectively reducing the basic mineral interest retained in the contract from a servitude to a royalty. We decline to hold that the language of the contract requires that interpretation. In our opinion the contractual provision is subject to more than one interpretation, and evidence should have been presented in order for the court to determine the intention of the parties.

The exception of no cause of action is seldom an appropriate vehicle for adjudicating the rights of parties under an ambiguous contract in which several competing inferences can be drawn as to the intention of the parties. At this stage of the proceedings nothing has been presented to the courts which compels the conclusion that plaintiffs intended to transfer their right to receive income from bonuses or rentals. It is at least equally probable (or arguably even more probable) that plaintiffs intended to retain that right. Neither the contractual provision nor the statutory law at the time of the contract settles the question.

Under these circumstances the trial court erred in maintaining defendants’ exception of no cause of action. The matter must be tried on the merits to determine the intention of the parties. Accordingly, the judgments of the lower courts are reversed, and the exception of no cause of action is overruled. The case is remanded to the trial court for a trial on the merits. Costs in the appellate courts are assessed to defendants.

WATSON, J., concurs in the result.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents for reasons assigned by MARCUS, J.

MARCUS, Justice

(dissenting).

I agree with the rulings of the courts below and this court’s decisions in Ledoux v. Voorhies, 222 La. 200, 62 So.2d 273 (1952), and Mt. Forest Fur Farms of America, Inc. v. Cockrell, 179 La. 795, 155 So. 228 (1934), which cases were overruled by the majority in footnote 7. My view is also in accordance with the new Mineral Code. See La. R.S. 31:105. Accordingly, I respectfully dissent.

ON REHEARING

CALOGERO, Justice.

As is evident from our opinion on original hearing, we are presented in this case with the question of whether the trial court properly sustained the defendant’s exception of no cause of action filed in response to plaintiffs’ petition for a share of the bonuses and delay rentals paid to the defendant Ashland Plantation.

On original hearing, persuaded by plaintiffs’ contention that the parties intended, as to bonuses, and rentals under prospective leases, the conveyance of only a proportionate interest in keeping with the mineral conveyance, we reversed the lower court judgments and ordered the case remanded to the trial court to give plaintiffs an opportunity to prove their claims. In doing so, we overruled two prior cases of this Court, Mt. Forest Fur Farm of America, Inc. v. Cockrell, 179 La. 795, 155 So. 228 (1934) and Ledoux v. Voorhies, 222 La. 200, 62 So.2d 273 (1952).

We granted a rehearing to reconsider our decision and our overruling of that long standing jurisprudence. Although our original opinion properly expressed this Court’s view that, generally, disputes over the intent of the parties to a contract, where that contract is silent, should not be resolved by an exception of no cause of action, we now determine that, at least in this case, where prior jurisprudence has expressly and unequivocally resolved how that silence should be interpreted, the matter can and should be resolved upon the exception of no cause of action.

In 1969 plaintiffs sold their interests in immovable property to defendants, Kenneth Kahao and J. King Woolf. One of the clauses in the contract provided that the sellers reserved an undivided one-half interest in and to all outstanding minerals, and conveyed the other undivided one-half interest to the purchasers, along with the exclusive right to enter into any oil, gas or mineral leases under such conditions as the purchaser should deem fit.

Defendants Kahao and Woolf later sold all of their interest to defendant Ashland. Thereafter, in 1973, Ashland entered into an oil, gas and mineral lease. The lessee paid to Ashland the agreed upon bonuses and rentals due under the terms of the lease.

Plaintiffs filed the instant suit in January of 1979, claiming entitlement to their share of the bonuses and rentals that had been paid to Ashland. Defendants responded to plaintiffs suit by filing an exception of no cause of action. Their contention is that a clause in the contract conveying to them the exclusive right to execute all oil, gas and mineral leases effected a conveyance, as well, of the right to all bonuses and rentals. The clause, as quoted in defendants’ pleadings, provides:

Sellers herein reserve an undivided one-half interest in and to all the outstanding minerals, the other undivided one-half interest being conveyed herein to Purchasers. The Purchasers shall have the exclusive right without the necessity of securing the joinder or consent of Sellers to enter into any oil, gas or mineral leases as they may deem fit, and such terms and conditions as they may deem fit and proper, provided, however, that no lease be executed for less than a one-sixth royalty.

Defendants argue that the exclusive right to lease, conveyed to them by the above quoted provision, was the “executive right” which includes the right to retain bonuses and rentals unless otherwise provided in the contract. They rely upon Mt. Forest Fur Farm of America, Inc. v. Cockrell, supra, and Ledoux v. Voorhies, supra, in support of their contention.

In Mt. Forest, supra, a 1934 decision, this Court affirmed a lower court judgment sustaining an exception of no cause of action under facts very similar to those presented here. In that case it was the vendor who, in a sale of immovable property with reservation of certain mineral rights, reserved unto himself the exclusive right to execute mineral leases. The reservation, prepared by the vendor/defendant and inserted in the act of sale, provided in pertinent part:

This vendor [defendant] is vested with and retains for himself, his heirs and assigns, and reserves from this sale, a perpetual royalty, equal to one-eighth of all minerals, including oil, gas, and sulphur, which may be found in, under, upon or beneath the lands hereinabove described, together with perpetual and exclusive rights to make and execute mineral leases on all or any portion of said lands for the exploration, development, production and marketing of any and all of said minerals....

Nearly two years after the sale defendant executed a mineral lease on the property. He received a $25,000 bonus, and later $25,-000 in delay rentals for extending the lease. Vendee/plaintiff filed suit demanding his portion of those sums.

In rejecting plaintiff’s argument that the reservation of the exclusive right to make and execute mineral leases amounted to nothing more than an agency, the Court held that the reservation of the exclusive right to lease included the right to the “bonuses and costs of extensions” since they “were not specified as excepted from the reservation.” In reaching this result, the Court observed:

[A]side from the landowner’s exploring his own land for minerals, he has only two possible sources of income or profit in dealing with his land: (1) The cash consideration or bonus which he may receive for the lease, and payments made for renewals of the lease; and (2) the royalty-
******
It seems to us that defendant was here retaining, with the consent of plaintiff’s predecessor, the exclusive right to lease, not for the mere privilege of selecting the lessee, or of fixing the terms of the lease, but for the purpose of obtaining from the lease or the granting of it, for himself, his heirs and his assigns, all that the lease might bring, save as therein specified.

The next, and only other case, directly addressing the issue was Ledoux v. Voorhies, supra. Therein this Court also held that the exclusive right to execute mineral leases carried with it the exclusive right to the bonuses and rentals. The only difference between Mt. Forest and Ledoux is that in Ledoux the vendee was conveyed the exclusive right to execute mineral leases with the vendor reserving only a mineral interest, while in Mt. Forest the vendor who reserved a mineral interest also reserved the exclusive right to lease. The act of sale in Ledoux contained the following provision:

And with the said tract of land, we have sold and do by these presents sell, transfer and deliver, only 8/24ths of all the oil, gas and other minerals situated in, on, under and that may be produced from the said tract of land, and therewith all rights to explore for, exploit, and enjoy said minerals. Vendors hereby reserve for themselves and their assigns the other %4ths of the said minerals, but it is understood that in no event shall the mineral rights of the purchasers herein be less than the %4ths herein transferred. But it is agreed that the purchasers, and their heirs and assigns, shall have the exclusive right and authority to execute at any time a lease or leases covering said land in whole or in part, and including the mineral rights of the vendors, their heirs or assigns, which are not herein sold, without the vendors’ joinder, and, without the joinder of their heirs or assigns: the purchasers, their heirs or assigns, binding and obligating themselves to include said interest in any lease or leases made by them of their own mineral rights, or part thereof. If oil, gas or other minerals is produced under such lease, the royalties shall be apportioned between the vendors, their heirs or assigns, and purchasers, their heirs and assigns, in the proportion in which they own said mineral rights.

Defendants later executed a mineral lease on the property for a bonus of $2,896.00 and a delay rental of $50.00 per arpent payable every April 28th for the next four years unless drilling operations were commenced. Plaintiffs filed suit for their proportionate share of the bonuses and rentals, contending that it was their intention to reserve, as relates to the bonuses and rentals, the same interest which they had reserved in and to the minerals. Defendants filed an exception of no cause of action, which was sustained. This Court affirmed that ruling holding that “the bonuses and rentals are derived from the lease itself and not from the minerals when produced” and thus plaintiffs were not entitled to a proportionate share of them, having conveyed to defendants the exclusive right to lease. The Ledoux Court, relying on Mt. Forest, stated:

Bonuses and delayed [sic] rentals were sources of income or profit which leases might bring; they were not specified as being excepted from the reservation and the court, in construing the reservation, is not at liberty to add or detract from its provisions which apparently convey its meaning and the intention of the parties.

Although the Court noted that the case at bar was different from the Mt. Forest case because in the latter it was the vendor who reserved the exclusive right to execute mineral leases and in Ledoux it was the vendees who had been conveyed the exclusive right to lease, it found no significance in the distinction. Rather, the Court held that it was the same exclusive right to execute mineral leases involved in both cases, and that right carried with it the exclusive right to “ ‘all that the lease might bring, save as therein specified.’ ” Mt. Forest v. Cockrell, supra, at 229. The Ledoux Court was also persuaded in this view by the wording of the reservation itself, stating:

The reservation in this case appears to us to reflect more clearly than did that in the Mt. Forest case, the idea that bonuses and rentals under leases were never intended to be retained under its terms because the clause granting their vendees the exclusive right to lease is immediately followed by another clause providing for an apportionment of the royalty in case of production under such leases. The parties were undoubtedly contemplating all sources of income to be derived from the transaction between them and it strikes us that if they had had the bonuses and rentals in mind as well as the royalties, these would have been specified also.

The present case is in no essential particulars distinguishable from Ledo ux; the facts as well as the reservation clause are very similar. As in Ledoux, it was the vendors in this case who sold their interests in the land to defendants along with “the exclusive right without the necessity of securing the joinder or consent of the Sellers to enter into any oil, gas or mineral leases as they may deem fit,” and who reserved to themselves only an interest in the minerals. The Ledoux case dictates our sustaining the exception of no cause of action filed by the defendants here. That is why on original hearing, in overruling defendant’s exception of no cause of action we found it necessary to overrule Ledoux, and Mt. Forest as well.

Upon reconsideration we now determine that our original opinion was wrong. There is ample reason to follow the jurisprudence rather than overrule it, not the least of which is to maintain consistency in the mineral law jurisprudence.

The Louisiana Civil Code substantially predates the development of the oil and gas industry in Louisiana. Consequently, the framers of the Code did not contemplate the many and varied legal questions and problems which would arise in the course of development of that industry. With scant Codal or other statutory guidance this Court was called upon to resolve legal questions, and decide cases in which such questions arose. One such question was presented in a fact situation much like those prevailing in the case before us in the 1934 Mt. Forest case, and in its successor Ledoux. And it was there determined that a clause in an act of sale, reserving to the vendor (or granting) the exclusive right to execute mineral leases also reserved to him (or granted) the exclusive right to the bonuses and delay rentals.

These decisions have created rules of property. Bond v. Midstates Oil Corp., 219 La. 415, 53 So.2d 149 (1951); St. Martin Land Co. v. Pickney, 212 La. 605, 33 So.2d 169 (1947). And, because they have been relied upon for many years by those dealing with mineral rights in this state, should not be overruled, for, as stated in St. Martin:

It is well settled that decisions of the highest court of a State on the subject of oil rights establish rules of property and should not be reversed unless it be by an act of the Legislature even should a different rule be deemed more logical. Roberson v. Pioneer Gas Co., 173 La. 313, 137 So. 46, 82 A.L.R. 1264 and the authorities cited therein.

The Legislature has not to this day seen fit to pronounce different rules. On the contrary the rulings of Mt. Forest and Le-doux have since been codified in the new Mineral Code.

The Louisiana Mineral Code was adopted by Act 50 of 1974, effective January 1,1975. As stated by the Louisiana State Law Institute in the introduction to the Mineral Code, “the Mineral Code is designed in large measure to supplant by way of codification the extensive jurisprudence that developed in this area of the law.” Although perhaps not directly controlling because adopted after the date of the pertinent sale in this case, it is nevertheless to be considered.

Article 105 of the Mineral Code provides:

The executive right is the exclusive right to grant mineral leases of specified land or mineral rights. Unless restricted by contract it includes the right to retain bonuses and rentals. The owner of the executive right may lease the land or mineral rights over which he has power to the same extent and on such terms and conditions as if he were the owner of a mineral servitude.

The Comments to Article 105, after outlining the facts and holdings in Mt. Forest v. Cockrell, supra, and Ledoux v. Voorhies, supra, recite:

Based on these cases and the general view with which they are harmonious, Article 105 defines the executive right as the exclusive right to lease, including the right to retain bonuses or other property given for the execution of leases and rentals or other property given for their maintenance, extension, or renewal.

Thus it is clear that Article 105 was intended to be a codification of the existing jurisprudence dealing with the subject, and as can be seen by our review of that jurisprudence, it was just that.

The Mineral Code, in Article 214, also expressly addresses the applicability of the Code to existing mineral rights. Article 214 provides:

The provisions of this Code shall apply to all mineral rights, including those existing on the effective date hereof; but no provision may be applied to divest already vested rights or to impair the obligation of contracts.

According to the Comments to this article, it was the feeling of the Law Institute that public policy dictated, to the extent possible, that there be one comprehensive body of law governing all mineral rights, thus ensuring consistency in the area as well as simplicity in judicial administration. The idea that there would be two distinct bodies of mineral law, one governing the rights existing prior to the effective date of the Mineral Code and one consisting of the Mineral Code and the interpretive jurisprudence applicable to rights created after its enactment, was deemed to be an undesirable result and to be avoided if possible. Thus, it is provided in the Comments to Article 214:

The chosen approach to this problem is to adopt a general principle making the provisions of the code retrospective in operation to the extent not violative of the state and federal constitutions. Thus, unless an individual can satisfy a court that he is deprived of a vested right without just compensation or that the obligations of a contract are impaired, the rules specified in the Mineral Code apply to both existing and future rights.

Not only have plaintiffs herein not satisfied the Court that they are being deprived of vested rights or that the obligations of their contract are being impaired, but to the contrary, under the jurisprudence in effect at the time this contract was entered into, it is clear that the jurisprudence as it stood at that time supported a result in defendants’ favor. The conveyance of “the exclusive right ... to enter into any oil, gas or mineral leases as they may deem fit” effected also the conveyance of the right to any bonuses or rentals derived from entering into a lease, as those payments are nothing more than consideration for the exercise of the right to lease. Mt. Forest v. Cockrell, supra.

Although plaintiffs argue that it was never their intention to convey the right to all the bonuses and rentals to defendants, there is nothing in the record before us that supports that contention. The case is therefore in the identical posture as was Ledoux. There the court found persuasive and favorable to the possessor of the executive rights the absence from the agreement of any reference to bonuses and rentals notwithstanding the inclusion of a reference to royalty apportionment. In the case under consideration there was additionally in the same clause an express limitation on the mineral lease which might be engaged (minimum one-sixth royalty) without reference to any limitation upon the enjoyment of the entire bonuses and rentals in the holder of the executive rights.

As was recited in Ledoux, “The parties were undoubtedly contemplating all sources of income to be derived from the transaction between them and it strikes us that if they had had the bonuses and rentals in mind as well as the royalties these would have been specified also.”

Therefore, considering the existing jurisprudence at the time the contract was entered into, as well as the Mineral Code and the express public policy interests in fostering one comprehensive body of law in the mineral law area, we find that we erred in our original opinion in overruling the prior jurisprudence and reversing the lower courts.

Decree

For the foregoing reasons we reverse our original opinion and affirm the judgment of the Court of Appeal which held that the trial court properly sustained defendants’ exception of no cause of action.

ORIGINAL OPINION REVERSED; JUDGMENTS OF THE COURT OF APPEAL AND DISTRICT COURT REINSTATED.

LEMMON, J., concurs and assigns reasons.

DIXON, C. J., dissents.

LEMMON, Justice,

concurring.

The Mt. Forest and Ledoux cases were wrong as a matter of contract and procedural law, and this court on original hearing properly challenged their holdings. However, cases that have established a jurisprudential rule of property law should only be overruled prospectively in order to protect contract rights previously bargained for in reliance on the decisions. Prospective overruling is not an effective way to correct the errors in these decisions, which have now been codified in R.S. 31:105. In any event, prospective overruling would not benefit these plaintiffs. I accordingly concur.

      . Since the judgment of the trial court maintained an exception of no cause of action, no evidence was introduced to support the objection raised by defendants. C.Civ.P. Art. 931. We therefore accept as true the allegations of the petition which paraphrased, but did not quote, the contractual provision. The exact contract language, quoted for purposes of establishing accurate and clear precedential value in this opinion, is taken from defendants’ pleading, but plaintiffs do not dispute the accuracy of the quotation.

      . Thus, if plaintiffs in the act of sale had simply reserved one-half of the minerals, they would have been entitled as servitude owners to one-half of all bonuses and rentals and as royalty owners to one-half of the royalties payable under any mineral lease. Furthermore, any prospective lessee who desired to secure a lease of all mineral interests would have been required to obtain plaintiffs’ consent to the lease.

      . Under the Mineral Code adopted in 1974 R.S. 31:105 defines the executive right as the exclusive right to grant mineral leases of specified land or mineral rights. R.S. 31:116 provides that a mineral lease may be granted by a person having an executive interest in the mineral rights on the property leased.

      . Under R.S. 31:105, adopted by Acts 1974, No. 50, the exclusive right to grant mineral leases, in the absence of a contrary contractual provision, includes the right to retain bonuses and rentals. However, no provision of the Mineral Code may be applied to divest already vested rights. Since the mineral reservation and the mineral lease were executed prior to 1974, R.S. 31:105 is not controlling.

      .The granting by one mineral owner to another mineral owner of the right, with stated limitations, to enter into mineral leases, without the necessity of securing the consent of the granting mineral owners, does not in and of itself raise any compelling inference that the granting mineral owners also intended to transfer their right to the bonuses and rentals. There are many logical explanations that could be attributed to the intent of the parties in entering into such an agreement. Some logical explanations are consistent with transferring the right to receive bonuses and rentals, while others are not. For example, the parties could have intended to transfer the right to bonuses and rentals as compensation for negotiating future leases. Or the parties could have intended, at the insistence of the one to whom the exclusive right was granted, that the party with the exclusive right be free to negotiate leases without interference and without fear of having a lease rejected after considerable efforts, while at the same time not intending to change the usual rights to bonuses and rentals. Other equally logical explanations may be inferred. (Plaintiffs contend their sole intent was to create a smaller bargaining unit.)

      . It is arguably illogical that plaintiffs intended such a poor business transaction. Compensation for negotiating leases could be stipulated in terms of a percentage fee or a flat fee. If the right to bonuses and rentals were transferred to defendants as compensation for negotiating leases, then defendants could bargain to plaintiffs’ detriment for a larger cash bonus and a lower royalty, subject to the limitation of at least a one-sixth royalty. On the other hand, it could be argued that plaintiffs intended to sell all of their mineral rights except for a proportionate share of a one-sixth royalty. But, as pointed out above, this argument effectively means plaintiff used language creating a servitude while intending only to reserve a royalty.

      . The cases of Mt. Forest Fur Farms of America, Inc. v. Cockrell, 179 La. 795, 155 So. 228 (1943) and Ledoux v. Voorhies, 222 La. 200, 62 So.2d 273 (1952) affirmed judgments maintaining exceptions of no cause of action, holding that it was unnecessary to remand for the purpose of determining the true intent of the parties. These decisions are now expressly overruled.

      . The plaintiffs in this case are apparently only six of the vendors, each with a one-eighteenth interest in the property. They seek a total of $13,222.38, or $2,203.78 each, which represents one-eighteenth each of one-half of $79,334.40, the total bonuses and rentals collected by Ash-land.

      . Plaintiffs also contended in their petition that the true consideration paid for the lease in bonus and delay rentals was greater than this, but because the exception of no cause of action was ultimately maintained, there was no need to determine the actual bonus and delay rentals.

      . The Court in Ledoux referred to the fact that the bonuses and delay rentals were not “excepted from the reservation.” Actually, they should have stated that the right to the bonuses and delay rentals was not excepted from the grant of the right to lease since in that case the right to lease was granted to the vendees rather than reserved by the vendors.

      . In considering an exception of no cause of action, the trial court may consider only the well pleaded facts in plaintiffs petition, which are taken as true. La.C.C.P. art. 931. Plaintiffs’ petition herein alleges no facts which support their contentions as to the parties’ intent in entering into the agreement, nor did they incorporate in their pleadings the entire agreement. While it is true that the trial court had it within its discretion to allow plaintiffs leave to amend their petition to state a cause of action (La.C.C.P. art. 934), plaintiffs have made no such request below, or here, nor have they argued that the trial court erred in any way in not allowing the amendment.

      . The exception of no cause of action simply is not the proper procedural vehicle to determine the unexpressed intention of the parties to a contract.


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

text:
    STATE of Louisiana ex rel. Michael FERRAND v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1241.
    Supreme Court of Louisiana.
    May 17, 1982.
    Rehearing Denied July 2, 1982.

      Louis Westerfield, Loyola University Law School, New Orleans, for defendant-applicant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, John H. Craft, Asst. Dist. Attys., for plaintiff-respondent.
   LEMMON, Justice.

This matter is before the court on defendant’s postconviction application, by which he seeks to set aside his conviction of armed robbery. His principal contention is that the evidence presented at trial was insufficient to prove his guilt beyond a reasonable doubt. We granted certiorari to review the trial court’s denial of postconviction relief. La., 404 So.2d 498.

I.

Viewed in the light most favorable to the prosecution, the trial evidence established the following facts: Defendant entered a parked bakery truck at midday, with a piece of newspaper over his right arm, and ordered the deliveryman to “give me all your money or I’ll kill you”. Defendant then took $20 in cash, a woman’s watch and two boxes of crackers. As he left the truck, defendant told the victim “to go to the front of the truck and lay down, and you had better not try any funny stuff, because I have a gun and I’ll blow your ... brains out”.

The victim called the police, who arrived within three minutes of the crime. The victim described the robber as wearing a blue tee shirt and maroon pants, and he informed the police that the robber had disappeared into an alley alongside a house, about 45 feet from his truck.

The victim and one officer went to the front door of the house and knocked. The person who answered did not fit the description of the robber, and he denied that anyone else was in the house. However, a second officer, who had gone around to the back of the house, apprehended defendant as he came out of the house wearing the clothes described by the victim. A search of defendant’s person yielded the watch stolen from the victim, but the officer did not find the money or a weapon on defendant’s person. The victim identified the watch and the clothes worn by the robber, and he also identified defendant as the robber, both at the scene and in court. The jury returned a verdict of guilty, rejecting defendant’s story that he found the watch in the alley alongside the house.

II.

Defendant contends that the evidence was insufficient to prove an essential element of the crime of armed robbery, namely, that he committed the theft while armed with a dangerous weapon. See R.S. 14:64; 14:2(3). Defendant did not raise this assignment of error in his appeal. However, since a conviction based upon insufficient evidence is a violation of constitutionally guaranteed due process, such an assignment may be raised in a postconviction proceeding. C.Cr.P. Art. 930.3(1); State ex rel. Womack v. Blackburn, 393 So.2d 1216 (La.1981).

The victim did not offer any direct testimony that defendant was armed with a dangerous weapon. He did not see a weapon, but only assumed that defendant was armed because he said he was. Thus, the only evidence that defendant was armed with a dangerous weapon is the inference arising from that statement by the robber to the victim.

The sole fact that, in the course of the robbery, defendant told the victim he had a gun does not prove beyond a reasonable doubt that defendant was armed with a dangerous weapon. State v. Gould, 395 So.2d 647 (La.1981). Based on the evidence in this record, a conclusion that defendant was not armed and made the statement solely to compel compliance with his orders is just as reasonable and as plausible as a conclusion that defendant was armed with the dangerous weapon. Such a statement under these circumstances, standing alone, simply does not constitute proof beyond a reasonable doubt of that essential element of the offense.

The evidence in this particular ease casts even more doubt that defendant was armed with a weapon at the time of the robbery, since defendant, when apprehended after being out of sight for only a few minutes, did not have a weapon on his person. Moreover, the police did not find a weapon in the alley between the point of the robbery and the point of apprehension, or in the house from which defendant emerged near the scene. While defendant conceivably might have disposed of a gun in the short period of time and limited area of space, the overall circumstances cast a reasonable doubt on the conclusion that defendant used a gun during the commission of the robbery.

This case is distinguishable from those, such as State v. Green, 409 So.2d 563 (La.1982), in which the robber used an instrumentality which was not inherently dangerous, but which in the manner used was likely to produce great bodily harm. Here, there was insufficient proof of the existence either of a gun or of any instrumentality which was used in a manner likely to produce great bodily harm.

Accordingly, the conviction of armed robbery and the sentence are set aside, and the matter is remanded to the trial court with instructions to enter a judgment of guilty of simple robbery and to sentence defendant for that crime as a multiple offender.

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

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

MARCUS, Justice

(dissenting).

I consider the actions of defendant in robbing the victim with a piece of newspaper over his right arm and ordering him to turn over his money or “I’ll kill you” and telling him “to go to the front of the truck and lay down, and you had better not try any funny stuff, because I have a gun and I’ll blow your . . . brains out” with enough time for him to dispose of the gun prior to being apprehended constituted sufficient evidence for the jury to conclude that defendant was armed with a gun. To hold otherwise would permit a “hidden gun exception” to the armed robbery statute. See my dissent in State v. Gould, 395 So.2d 647 (La.1981).

I respectfully dissent.

BLANCHE, Justice

(dissenting).

I dissent from the reversal of defendant’s conviction of armed robbery. The defendant approached his victim with a newspaper draped over his hand as though concealing a weapon. He threatened the life of his victim and stated that he was armed with a gun. He then disappeared into an alleyway 45 feet from the truck.

A watch, 2 boxes of crackers and $20 in cash were taken in the robbery. When defendant was captured shortly after the offense, only the watch was recovered. Defendant obviously had time to conceal the money and the crackers in the interval between the robbery and arrest. A natural conclusion is that the weapon used was also successfully concealed during that time.

Viewing this evidence in the light most favorable to the prosecution, a rational jur- or could have believed the victim and, coupled with his ability to dispose of the evidence, would have concluded beyond a reasonable doubt that defendant was armed with a dangerous weapon.

      . Defendant also contends that the trial court erred in instructing the jury as to the presumption of theft arising from the unexplained possession of recently stolen goods. See R.S. 15:432. There was no objection to the court’s instructions to the jury, and defendant cannot avail himself, after verdict, of the alleged error. C.Cr.P. Art. 841. See Tyler v. Phelps, 643 F.2d 1095 (5th Cir. 1981). Moreover, because there was no objection, the instruction was not transcribed, and there is no way for an appellate court to review this belated contention.

      . In his appeal, defendant’s only assignment of error was that he was denied effective assistance of counsel. Because that assignment was more properly reviewable in a postconviction proceeding, in which a full evidentiary hearing may be ordered, we rendered a per curiam affirmation of the sentence. State v. Ferrand, 356 So.2d 421 (La.1978).

      . See State v. Gould, above, for a discussion of the difference between an inherently dangerous instrumentality and an instrumentality which in the manner used is likely to produce great bodily harm.

      .The state originally charged that defendant was armed with a knife, but two days before trial amended the information to charge he was armed with a gun.
      On appeal, the state argues that defendant used the piece of newspaper draped over his arm in a manner calculated to create fear of bodily harm in the victim. However, the newspaper was neither an inherently dangerous instrumentality nor an instrumentality which was used in a manner likely to produce great bodily harm. R.S. 14:2(3). At most the draped newspaper constituted circumstantial evidence possibly bearing on the determination of whether defendant was actually armed with a gun, as he stated to the victim.

      . Defendant did not challenge the propriety of the multiple offender proceeding instituted under R.S. 15:529.1. Hence, that finding is not affected by this decision.


author: FRED W. JONES, Jr., Justice Ad Hoc.

text:
    STATE of Louisiana v. Terry Wayne HOWARD.
    No. 81-KA-1541.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
    Rehearing Denied March 26, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., L. K. Knapp, Jr., Dist. Atty., Robert R. Bryant, Jr., Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Scotty G. Rozas, Karen Lee Price, Lake Charles, for defendant-appellant.
   FRED W. JONES, Jr., Justice Ad Hoc.

Terry Wayne Howard was indicted for aggravated rape (La.R.S. 14:42) and aggravated burglary (La.R.S. 14:60); found guilty by jury of attempted aggravated rape and aggravated burglary; and sentenced to 50 years imprisonment on the attempted aggravated rape conviction and 30 years imprisonment on the aggravated burglary conviction, with the sentences to run concurrently. In this appeal defendant relies upon seven assignments of error.

According to the record, on the night of August 10, 1980 a young white male broke into a dwelling occupied by two elderly women, Mrs. D and Mrs. S, by thrusting his fist through the glass portion of a door and unlocking it. The intruder entered the room where Mrs. S was sleeping, grabbed her and took her into Mrs. D’s bedroom. He pushed Mrs. S onto the bed with Mrs. D and, after pulling down Mrs. S’s pajamas, attempted to have sexual intercourse with this 86 year old female who was resisting to the full extent of her physical ability. The burglar struck Mrs. D when she attempted to hit him with her cane.

Following his assault upon Mrs. S, the assailant took Mrs. D’s money and went back into Mrs. S’s bedroom to get her cash. After threatening the women with death if they called the police, the burglar departed the premises through the front door. The women immediately notified the police of the crimes.

Defendant was subsequently apprehended, gave an inculpatory statement to the police, and was charged with the offenses in question. Mrs. S was unable to identify defendant as her assailant, explaining that she never got a good look at him. However, at the trial on the merits Mrs. D pointed defendant out as the burglar of her residence.

Assignments of Error Nos. 1 & 2

Defendant complains that the trial judge erred in ordering his arraignment on the date set for trial and in denying his motion for a continuance based upon this conjunction of arraignment and trial.

As explained by the trial judge’s per cu-riam addressing the question, because a sanity commission was requested and appointed when defendant first appeared before a judge and because a similar indictment was pending, formal arraignment of defendant before his trial date was overlooked. This fact was noted and called to the attention of defendant, all counsel and the trial judge only after the case was called for trial and requests for excusal by members of the jury venire were being considered.

Thereupon, defendant was called for arraignment, entered a plea of not guilty and declined to waive trial by jury. Defendant’s motion for a continuance of his trial, based upon the argument that a defendant should not be arraigned and tried on the same day, was denied. Jury selection then proceeded.

If defendant had never been arraigned and entered upon trial without objection to this defect, he would be deemed to have waived his right to arraignment. La.C. Cr.P. Art. 555. Consequently, the mere fact that defendant was arraigned and his trial began immediately thereafter is not per se prejudicial. Whether this constituted grounds for a continuance is another matter. There is, however, nothing in the record indicating that defendant was hampered in any way in the preparation for trial by the lack of time between arraignment and trial. Therefore, we cannot say that the trial judge abused his discretion in denying the motion for continuance.

These assignments lack merit.

Assignment of Error No. 5

Defendant contends his confession was erroneously admitted into evidence by the trial court; that, rather than being free and voluntary, the inculpatory statement resulted from deputy sheriffs’ pressures and promises and defendant’s emotional instability.

At the hearing on the motion to suppress defendant’s confession, it was established that on August 29, 1980, defendant was arrested and brought to the Calcasieu Parish jail on a rape charge unrelated to this case. At approximately 9:30 P.M. on August 30, 1980, Deputy Laudumiey, an investigator with the sex crimes division of the Calcasieu Parish Sheriff’s office, approached che incarcerated defendant to request a blood sample. She advised defendant of his constitutional rights and questioned him briefly, but defendant denied any involvement in the crime at issue.

After defendant returned from giving the blood sample at the hospital, Laudumiey got him out of jail (a little after midnight on August 31, 1980) and took him for questioning in the sheriff’s office. This interrogation continued for 15 or 20 minutes. Defendant again denied any responsibility for the rape under investigation by that deputy-

On September 2, 1980, Deputy Delouche informed Deputy Laudumiey that he was acquainted with the defendant and, since Laudumiey was making little progress in her interrogations, offered to question defendant. When Laudumiey accepted the offer of assistance, Delouche brought defendant from jail to the sheriff’s office. Prior to questioning defendant, Delouche advised him of his Miranda rights in the presence of Deputy Fryor. Defendant signed a form indicating that he understood those rights and desired to waive them. When the defendant again denied any responsibility for the rape, Delouche replied that he did not believe defendant and that defendant would feel better if he told the whole story and got the matter off his conscience. Defendant then confessed committing the rape for which he was under arrest and also the crimes in this case. After interrogating defendant for about 20 minutes, Delouche turned him over to Deputies Laudumiey and Miller.

Laudumiey and Miller also advised defendant of his Miranda rights and defendant executed the standard waiver form. Defendant confessed to these officers his commission of the crimes in question. The detailed statement was recorded, transcribed and signed by defendant. This final interrogation lasted about two hours.

In order for an inculpatory statement to be admissible in evidence against an accused at trial, the state must prove beyond a reasonable doubt that the statement was given freely and voluntarily and was not the product of either pressure or promises. State v. Campuzano, 404 So.2d 1217 (La.1981). Once the trial judge determines the state has discharged its burden, his conclusions on the credibility and weight of the testimony will not be overturned as long as they are supported by the evidence. State v. Haynie, 395 So.2d 669 (La.1981).

The defendant testified in this case that Deputy Delouche offered to talk to the district attorney and to help him in any way he could. On the other hand, all of the officers present when defendant confessed denied making promises to induce the confession. In ruling that the confession was free and voluntary, the trial judge obviously disbelieved it was the result of promises alluded to by defendant. Since the trial court’s determination was amply supported by evidence in the record, we cannot say this was an incorrect holding.

Defendant further argues, impliedly, that the voluntariness of the confession was negated by his emotional instability—for which, along with a drug abuse problem, he had previously been institutionalized.

Although the defendant is not required to prove a particular kind of insanity, it is his responsibility to introduce evidence of his own mental abnormality. Although the state must in all other respects prove beyond a reasonable doubt that the confession was voluntary, the state is not required to negate a mental abnormality which the defendant alleges but fails to prove. State v. Glover, 343 So.2d 118 (La.1977).

Defendant testified that he felt nervous, depressed and under considerable pressure during his interrogation by the deputies. The officers conceded that defendant appeared to be nervous, but stated that he also seemed quite alert and well aware of the nature of the proceedings. The record is devoid of any evidence that defendant was suffering from any mental abnormality when giving his confession that destroyed the voluntariness of that inculpatory statement.

This assignment is without merit.

Assignment of Error No. 7

This assignment involves the contention that the trial judge abused his discretion in denying a motion for continuance of the trial in order that defense counsel could have an opportunity to locate alibi witnesses whose names had just been revealed by defendant.

In his per curiam dealing with this assignment, the trial judge states that, in an in camera conference, defense counsel informed him and the prosecutor of defendant’s recent disclosure of the names of the alleged alibi witnesses. The prosecutor agreed to a continuance provided defendant submitted to a polygraph examination administered by a local deputy sheriff and passed that examination. Defendant took the test and failed it. Thereupon, the trial judge denied his motion for a continuance.

As it later developed, all of the alibi witnesses except one testified at the trial. The exception was a “girl friend” whose name defendant either could not remember or who was not accurately identified in defendant’s disclosure to his attorney. Further, defendant failed to establish a probability that this witness, in the event of a continuance, would be available to testify at a later trial. See State v. Gordy, 380 So.2d 1347 (La.1980).

The trial judge did not abuse his discretion in denying this motion for a continuance.

This assignment lacks merit.

Assignment of Error No. 8

Defendant complains that the trial judge erred in denying his request to present the testimony of a witness in surrebuttal after the state presented its case in rebuttal and rested.

In his per curiam to this assignment the trial judge stated:

“Three witnesses testified on behalf of the defendant, in addition to the defendant himself, during the trial. Two of them, Gene Rogers and Charles Rogers, related events markedly different from the third, Charles Wilson, also known as ‘Chico.’ Chico testified essentially that after several hours of drinking at a local bar on the evening of the offense, he had driven the defendant to and let him out of his vehicle at Broad Street and Boston Street in Lake Charles. Ostensibly, so defendant could go to the residence of a girl friend nearby on Boston Street.
“Gene Rogers had testified that the four of them had been drinking and that he and the defendant parted, each without transportation, in front of the Belmont Motel, which is about one mile East on Broad Street from where Chico said he transported the defendant to at an earlier time. Gene Rogers further testified that he, Rogers, was walking to his home about one-half block North of their point of separation. He remarked that the defendant said he was going to take a ‘short cut’ to his mother’s house which is on Ninth Street. Ninth Street is parallel with, and nine blocks South of Broad Street. The home of the victim was on Dumatrait Street about one-half block South of Broad Street. Dumatrait Street runs South from Broad Street, adjacent to the Belmont Motel, going toward Ninth Street. The time of their parting was not long before the attack upon the victim.
Defendant testified in corroboration of Chico as to their parting and claimed that he telephoned for a Checker Cab from his girl friend’s house about 2:30 a. m., and was taken by it to his mother’s home on Ninth Street.
“The defense rested after defendant’s testimony.
“In rebuttal, the State recalled one of the officers who took defendant’s confession, then Court was adjourned overnight.
“The next morning the State presented the testimony of the manager of Checker Cab Company, who testified from company records that no telephone call was received by the company from or near Boston Street; that no trip originated in that area and none terminated on Ninth Street or near defendant’s mother’s home during a twelve-hour period covering the time in question.
“The State presented one further witness in rebuttal of other testimony of the defendant and then rested.
“Counsel for defendant then moved to reopen the trial. Outside the presence of the jury, counsel stated that the evening before, an investigator assisting him had located the ‘girl friend’ on Boston Street.
“During a chambers conference about this problem, the Court was advised by counsel for the State, in the presence of defense counsel, that he had that morning questioned this woman and that she was not able to give any dates or otherwise identify the times defendant came to her house in the middle of the night. Defense counsel took no issue with that statement.
“The end result of taking the unusual course of permitting surrebuttal appeared to be, at the most, some confirmation that defendant did on occasion go to the home of a female on Boston Street in the middle of the night. Since there was no showing that the State withheld any evidence from its case in chief or did not confine its rebuttal to matters raised on defense, the Court denied the motion to reopen.”

La.C.Cr.P. Art. 765(5) provides that in the normal order of trial there is presentation of evidence by the state, by the defendant, and by the state in rebuttal. However, the trial court in its discretion may permit the introduction of additional evidence prior to argument.

Under the circumstances obtaining in this case, the trial judge did not abuse his discretion in denying defendant’s request to present additional evidence prior to argument.

This assignment is without merit.

Assignment of Error No. 10

The basis of this assignment is essentially the same as that for No. 8, since defendant here argues that a new trial should have been granted to enable him to present the testimony of the witness whose testimony he sought to present after the state rested and prior to argument.

In order to obtain a new trial on the basis of newly discovered evidence defendant must demonstrate (1) that the evidence was not discoverable before or during trial despite the exercise of reasonable diligence and (2) that if the evidence had been introduced at the trial it would probably have changed the guilty verdict. La.C.Cr.P. Art. 851(3).

In his brief, defense counsel concedes that this evidence was actually discovered while the trial was in progress. Further, as pointed out by the trial judge, the testimony of this witness would have, at best, been only speculatively corroborative and probably would not have changed the verdicts.

This assignment is without merit.

Assignment of Error No. 11

Defendant contends the sentences imposed, the maximum penalties provided by law for these offenses, are excessive because the trial judge did not consider pertinent mitigating circumstances, such as the age of the defendant, his lack of a criminal record, his use of drugs on the night of the offense, and the fact that defendant did not use a weapon during the course of these crimes.

Adequate review mandates that the trial judge state specific reasons for an apparently severe sentence in relation to the particular offender and the actual offense. While the trial judge need not articulate every aggravating and mitigating circumstances presented in La.C.Cr.P. Art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Gulden, 399 So.2d 194 (La.1981). The trial judge’s reasons in imposing sentence 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).

Although the trial judge in this case did not articulate every aggravating and mitigating circumstance set forth in Art. 894.1, we find the following comments made by him prior to sentencing defendant adequately complied with this requirement:

“The two ladies who were victims of the defendant, both of whom are past the age of 85 yrs., had lived together for over 30 yrs. While Mrs. D was ailing, she was able to live in her home with the assistance of Mrs. S. Mrs. S, the victim of the attempted rape, although aging and somewhat infirm, was still contributing to society, not only by her care of her friend, Mrs. D, but by being employed as a housekeeper in a Catholic rectory. In fact, she had worked the day before the attack. The lives of both these ladies have been shattered by the defendant. Because of injuries sustained by her in this crime, Mrs. S was hospitalized for a lengthy time and is now an invalid. Both ladies must now live with and be cared for by relatives, their intentions to live together, enjoy the personality and relationship of each other, having been irrevocably shattered along with the breaking glass when the defendant crashed into their world.
“Defendant’s deliberate conduct threatened and caused serious harm to his victims, and the Court is unable to find any factor tending to in any manner excuse his conduct.
“This Court has not been exposed to an instance where the defendant’s intentions were more coldbloodelly deliberate.
“There was testimony, highly unreliable and conflicting, about his having been drinking to excess that night. However, the reliable testimony shows him to have been in obvious control of a situation he created.”

It is in this context that we consider whether the sentences imposed are excessive.

As a general rule a sentence is excessive “if it is grossly out of proportion to the severity of the crime, or if it is nothing more than the purposeless and needless imposition of pain and suffering.” State v. Bonanno, 384 So.2d 355, 357 (La. 980). The trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Sepulvado, 367 So.2d 762 (La.1979).

Our review of the record convinces us that, though severe, the sentences imposed are fully justified by the gravity of the offenses and the characteristics of this defendant. Rather than being arbitrary, these sentences represent a studied effort by the trial judge to mete out appropriate punishment. The trial judge did not abuse his discretion; the sentences are not excessive; and there is no merit to this exception.

Decree

Finding no reversible error in defendant’s assignments of error, we affirm his convictions and sentences.

       Judges O. E. Price of the Court of Appeal, Second Circuit, John C. Boutall, Court of Appeal, Fourth Circuit, and Fred W. Jones, Jr., Court of Appeal, Second Circuit, participated in this decision as Associate Justices Ad Hoc, joinéd by Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr., James L. Dennis and Jack C. Watson.

      . In fact, her affidavit, attached to the motion for a new trial, demonstrates that her testimony would show she was not even sure of the month during which defendant last came to her. Her testimony would have been worthless so far as tending to confirm an alibi for the defendant.


author: PER CURIAM.

text:
    Robert G. SUHOR, Jr. v. Richy J. GUSSE and Donald Bellow, et al.
    No. 81-C-2825.
    Supreme Court of Louisiana.
    March 19, 1982.

      Robert Barkley, Jr., Linda S. A. Burke, Sessions, Fishman, Rosenson, Snellings & Boisfontaine, New Orleans, for defendant-applicant.
    John A. Occhipinti, Christopher T. Grace, Jr., Occhipinti, Grace, Berger & Dunford, Ben C. Toledano, Michael K. Fitzpatrick, Margaret A. Bretz, Porteous, Toledano, Hainkel & Johnson, New Orleans, for plaintiffs-respondents.
   PER CURIAM.

In Southern Farm Bureau Casualty Ins. Co. v. Sonnier, 406 So.2d 178 (La.1981), we held that an insurer which makes payment to its insured pursuant to its insurance policy may enforce a conventional subrogation agreement contained in the policy; and that an insurer which pays its insured only a part of the damages to which an insured is entitled from a tortfeasor becomes only partially and subordinately subrogated to the insured’s right. See also, Bond v. Commercial Union Assurance Co. et al., 407 So.2d 401 (La.1981).

The policy issued by State Farm contains a conventional subrogation agreement. However, State Farm’s third party demand against the tortfeasors is moot in this ease because the inability to pay doctrine applies to both the plaintiff and to his insurer’s claim in subrogation, judgment has been rendered in favor of the plaintiff against the tortfeasors to the full extent of their ability to pay, and the plaintiff is entitled to exercise his right for the balance of his partially paid claim in preference to the insurer-subrogee. See Bond v. Commercial Union Assurance Co., supra; Southern Farm Bureau Casualty Ins. Co. v. Sonnier, supra.


author: MELVIN A. SHORTESS, Justice Ad Hoc. LEMMON, Justice,

text:
    STATE of Louisiana v. Aubrey THOMPSON.
    No. 81-KA-1945.
    Supreme Court of Louisiana.
    April 21, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Morel,

      Jr., Dist. Atty., John M. Crum, Jr., Kurt Sins, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Sylvia E. Taylor, Reserve, for defendant-appellant.
   MELVIN A. SHORTESS, Justice Ad Hoc.

Aubrey Thompson (defendant) was charged in a bill of information with attempting to commit first-degree murder on Pamela Kirkland (La.R.S. 14:27/14:30) and with robbing her while armed with a pistol (La.R.S. 14:64) on August 16, 1980. Defendant pled not guilty to both charges, and the court appointed counsel to represent him. On September 24,1980, a preliminary examination was held with the Honorable Thomas J. Malik presiding, wherein the victim testified in detail as to the circumstances and events surrounding the alleged crimes. Upon completion of the examination, Judge Malik found probable cause did exist. On January 26, 1981, trial began with Judge Malik presiding; however, an objection was made to the State’s opening statement and a motion for mistrial was sustained. Between January 27, 1981, and February 13,1981, John Crum, representing the State, and Robert Faucheux, defendant’s court-appointed attorney, attempted to negotiate a plea bargain. The record confirms the fact that the trial judge did not enter into active participation in the plea bargaining and never discussed plea bargains with defendant or his counsel. In response to inquiry from Crum, however, Judge Malik indicated an interest in allowing defendant to plead in return for a 20-year sentence at hard labor.

On February 13, 1981, Judge Malik addressed a letter to Crum, with a copy to Faucheux, wherein he withdrew any prior commitment. On February 17 defendant withdrew his not guilty pleas and pled guilty in open court, after a Boykin examination. The court then ordered a pre-sen-tence investigation. On March 6, 1981, defendant was sentenced to serve twenty years at hard labor on the attempted first-degree murder charge and twenty years at hard labor on the armed robbery charge. Both sentences were without benefit of parole, probation, or suspension, and were to run consecutively. Defense counsel immediately objected to the sentence and moved to withdraw the defendant’s guilty pleas, as per the Boykin commitment; but Judge Malik denied the motion.

ARGUMENT NO. 1 (Assignments of error 1 through 9)

Defendant argues that the trial judge erred in refusing to allow him to withdraw his pleas of guilty after sentence was imposed. He submits that the sentence was in violation of a plea bargain agreement and that the trial judge indicated that he would give him the opportunity to withdraw his pleas if he did not acquiesce in the agreed-upon sentence.

On January 26, the trial began, but a mistrial was declared the next day. The next minute entry is on February 17, when defendant entered guilty pleas. Any plea bargaining occurred on or before February 13, the date of Judge Malik’s letter which stated that he had been under the impression that the victim had been shot only one time. Judge Malik stated that a pre-sen-tence investigation would have to be made. He had also stated that:

. .. defendant must plea (sic) with the knowledge that I have not made up my mind regarding his sentence.

Immediately after sentence was imposed, defense counsel objected, moved to withdraw the guilty pleas, and indicated that it was his understanding that the court had stated that defendant would be allowed to withdraw his pleas if the sentence were different from the 20-year sentence previously agreed upon. His motion was denied, but he was permitted to withdraw from the case. The pertinent parts of the February 17 transcript are:

“Q You admit to the knowledge that the Court in imposing sentence upon your plea of guilty is not bound by any recommendations or statements made to or by anyone to the Court, and that you are not to assume or rely upon any statements or representation by your attorney or of the State, that the consequences of your plea of guilty, that there is no appeal of the sentencing that 1 impose; do you realize that?
A. Yes.
THE COURT: The Court is going to order a pre-sentence investigation and as soon as the report is received the Court will then contact Mr. Faucheux as to whether or not the pre-sentencing investigation in any way would alter the plea-bargaining arrangements with the State. If it, in fact, reveals something unknown to us at this time, the Court would allow the defendant to withdraw his plea. Until then, he is remanded to the custody of the Sheriff of St. John the Baptist, until the Court receives the pre-sentencing investigation.”

In addition to the oral Boykin colloquy, defendant also executed and signed a written plea and waiver on February 17, 1981. The defendant acknowledged both in open court and by the Plea And Waiver form that he executed, that the trial judge was not bound by the State’s recommendation or any statements made by his counsel. He also acknowledged that no promise had been made with regard to the sentence. He was cautioned that no commitment to any sentence would be made until completion of the pre-sentence report. But Judge Malik also indicated that if the pre-sentence investigation revealed anything that would alter the plea bargaining arrangements, the court would allow defendant to withdraw his pleas.

In State v. Baudoin, 334 So.2d 186 (La.1976), defendants entered pleas with the understanding that they would receive sentences of six months’ imprisonment or be allowed to withdraw their pleas if the sentences were heavier than anticipated. The trial court sentenced defendants to six years’ imprisonment and refused to allow them to withdraw their pleas. We found that the evidence was insufficient to show a consummated plea bargain, but also found that:

. .. the record does establish a discussion from which the defense attorney could have reasonably inferred an agreement with the District Attorney, and the evidence is conclusive that defense counsel reasonably believed that a plea bargain existed and that he so advised his clients both orally and in writing; (4) the defendants, relying in good faith upon their attorney’s representations, pleaded guilty. Id., 334 So.2d at 188.

It is well settled that a defendant may not withdraw his plea solely because the sentence he received is greater than anticipated. State v. Lockwood, 399 So.2d 190 (La.1981); State v. Deakle, 372 So.2d 1221 (La.1979). During the Boykin colloquy, the trial judge committed himself to:

... contact Mr. Faucheux as to whether or not the pre-sentence investigation in any way would alter the plea bargaining arrangements with the State.
(emphasis added)

The pre-sentence investigation apparently revealed nothing unknown about the crimes because the preliminary examination established those details completely. While the record does not reveal what took place during the plea bargaining negotiations, we must note that immediately after sentence was imposed, defense counsel objected and stated:

It is my understanding that if the sentencing is different than what Mr. Thompson Boykined for by his plea bargaining, that he would be allowed to remove his plea of guilty, and on his behalf we request at this time that he be allowed to do that in accordance with the previous statement that the Court made.

Subsequently, on April 22, 1981, defendant filed a formal motion styled, “Motion to Receive Boykinization and Remove Former Plea of Guilty,” which was denied by the trial judge without a hearing. Unfortunately, the record as it now stands is insufficient to determine whether a plea bargain that included the sentence was ever reached or whether there was a reasonable basis for defendant to believe that he would be allowed to withdraw his plea if a sentence in excess of twenty years was imposed. In view of the confusion surrounding this sentencing and plea, we feel that an evidentia-ry hearing on defendant’s motion to withdraw his guilty plea should have been held.

For the reasons assigned, this case is remanded to the district court with instructions to hold an evidentiary hearing on defendant’s motion to withdraw his guilty plea.

REMANDED with instructions.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

I agree that the present record is insufficient to determine whether a plea bargain including a maximum sentence was ever reached or whether defendant had any reasonable basis to believe he would be allowed to withdraw his plea if the trial judge decided to impose a sentence in excess of 20 years. However, if the evidence at the evidentiary hearing supports defendant’s contention, then the sentencing judge should have the option to limit the sentence in accordance with the bargain or to allow defendant to withdraw his plea.

       Judges Melvin A. Shortess, Burrell J. Carter, and Felix H. Savoie, Jr., of the First Circuit Court of Appeal, participated in this decision as associate justices ad hoc, joined by Associate Justices Dennis, Blanche, Watson and Lem-mon.

      . See “Attachment 1” hereto.

      . The preliminary examination held before Judge Malik on September 24, 1980, revealed that defendant picked the victim up in a bar. After stopping at other bars and places where the defendant was ostensibly getting money, the defendant drove the victim, in her car, to a secluded area by Lake Pontchartrain. He then pointed a pistol at her head, had her remove her jewelry, and ordered her out of the car. As she pleaded with him he shot her once in the shoulder, then shot her a second time in the back and left her for dead.

      . See “Attachment 2” hereto.

      . The transcript from the March 6, 1981, sentencing is confusing. It appears that defendant may have entered pleas prior to February 17 and then withdrawn same. Judge Malik’s per curiam refers to the February 17 plea as the second plea, but there is no record of the first plea. What happened at the first plea session? It appears that a 20-year sentence was discussed (R., March 6, 1981, Tr. p. 3). It also appears that defendant filed a charge of brutality in connection with the first plea with the U. S. Justice Department. (Id., p. 3)

      . The evidentiary hearing should be held before another judge of the 29th JDC since Judge Malik will no doubt be a witness. Messrs. Crum and Faucheux should also be witnesses.