author: WATSON, Justice.

text:
    STATE of Louisiana v. Michael A. FOOTE.
    No. 65151.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    Rehearing Denied March 3, 1980.

      Alton T. Moran, Director, M. Michele Fournet, Appellate Counsel, Baton Rouge, The Office of Public Defender, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Warren Hebert, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appel-lee.
   WATSON, Justice.

defendant, Michael A. Foote, was found guilty of the crime of first degree murder, in violation of LSA-R.S. 14:30, and sentenced to life imprisonment without probation, parole or suspension of sentence, as recommended by the jury. On appeal, the defendant relies on seven assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NUMBER NINE

Defendant contends that the trial court erred in admitting a dying declaration as hearsay evidence of his guilt in violation of LSA-R.S. 15:434. Dr. William Randall Williamson, a neighbor who was the first to arrive at the scene of the crime, testified that the murder victim, Dr. Roger Foote, identified his assailant as “Mickey”. Dr. Williamson knew “Mickey” to be the victim’s brother, and identified him as the defendant. Dr. Williamson quoted Dr. Foote in part as stating: “Mickey shot me six times with a .32 with a silencer and— and I’m dying.” (Tr. 342) The evidence was accepted as a dying declaration by Dr. Foote.

Dying declarations are admitted into evidence as an exception to the hearsay rule because the dead victim is not available to testify directly, and the murderer might otherwise escape justice. Such statements are considered reliable if given by one who believes himself in imminent danger of death. Although Dr. Foote survived eleven days, he was comatose for much of that time. Both Dr. Foote and Dr. Williamson believed that Dr. Foote was dying when he spoke and he did in fact die of the six gunshot wounds. There is no evidence of hostility toward his brother which would cast doubt on the veracity of the statement. Adding weight in this instance to Dr. Foote’s dying declaration was his knowledge of physiology. There is no question that Dr. Foote, a veterinarian, was correctly convinced when he spoke that his wounds would be fatal. His words establish that he felt himself to be in prospect of death and without hope of recovery. His statements while in that frame of mind were properly admitted into evidence^ as an exception to the hearsay rule. State v. Vincent, 338 So.2d 1376 (La., 1976); State v. Unger, 362 So.2d 1095 (La., 1978).

ASSIGNMENTS OF ERROR NUMBERS THIRTEEN, FOURTEEN AND FIFTEEN

These assignments of error relate to other dying declarations made by Dr. Foote to Corporal Lee Wilson, a deputy sheriff with the East Baton Rouge Parish Sheriff’s Office. Wilson testified that he arrived at the hospital shortly after Drs. Foote and Williamson and spoke to Dr. Foote while the latter was being prepped for surgery. This witness asked Dr. Foote who shot him and he replied “Mickey shot me”. The deputy then asked “Is Mickey your brother, Mickey?”, and he replied “Yes”, (Tr. 420). There is no reason to believe that Dr. Foote’s conviction of imminent death had altered at this point. Dr. Williamson had not expected him to survive the trip to the hospital because of the extensive loss of blood and shock. Although Dr. Foote was being prepared for surgery when questioned, no medical treatment had been given. Even after his first surgery, Dr. Foote remained pessimistic and told a friend, John Newt Cutrer, while in intensive care the following day: “Well, I’m not going to make it. * * * I’ve taken too many bullets”. (Tr. 427) The testimony by Wilson was properly admitted into evidence.

ASSIGNMENT OF ERROR NUMBER SIXTEEN

The trial court denied defendant’s motion for a mistrial based on testimony by Deputy Wilson that Dr. Foote “. . . asked us to get somebody over to his mother’s residence; that he feared for her life; he felt Mickey was — ” (Tr. 420). It is contended that this statement was highly prejudicial to the defendant, suggested the commission of another crime, and mandated a mistrial.

LSA-C.Cr.P. art. 770 provides:

“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official during the trial or in argument, refers directly or indirectly to: . (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible; * * * ”

A police officer is not a court official within the meaning of article 770. State v. Boyd, 359 So.2d 931 (La., 1978); State v. Hills, 354 So.2d 186 (La., 1977); State v. Hegwood, 345 So.2d 1179 (La., 1977). The statement in question did not actually refer to another crime, although there is a possible inference to that effect. The jury was admonished by the court to disregard the remark and this was sufficient to assure the defendant a fair trial. LSA-C.Cr.P. art. 771.

ASSIGNMENTS OF ERROR NUMBERS SEVENTEEN AND EIGHTEEN

The trial court allowed into evidence xerox copies of registration cards from a hotel where the defendant allegedly stayed from January 15 through April 25,1977, although the person who prepared the registration cards did not testify, and also allowed into evidence photocopies of records from a sporting goods store where the defendant allegedly purchased ammunition even though the person who prepared the records did not testify. The documents were admitted as a business records exception to the hearsay rule but there was no showing that the people making the records were unavailable to testify, as required by State v. Monroe, 345 So.2d 1185 (La., 1977) and State v. Perniciaro, 374 So.2d 1244 (La., 1979). The testimony, which established that the defendant resided in a room where a holster was found and was a purchaser of .32 caliber ammunition was obviously prejudicial. However, in both instances, the objection to the hearsay evidence was not timely.

Milfred 0. Elling, manager of the Alamo Plaza Hotel Courts, testified that Michael A. Foote was registered in room 805 at that motel between January 15 and April 25, 1977. There was no question that Michael A. Foote was in Baton Rouge at the time, and the place of his residence was not a contested issue. Compare State v. Arbuthnot, 367 So.2d 296 (La., 1979). No objection was made to the testimony. Later, when copies of the registration cards were offered in evidence, an objection was made, but the evidence was already before the jury. The objection came too late. LSA-C. Cr.P. art. 841; State v. Lovett, 359 So.2d 163 (La., 1978); State v. Hillman, 298 So.2d 746 (La., 1974).

Cathy Young-Kin, a bookkeeper at Steinberg’s in Bon Marche Shopping Center, Baton Rouge, testified that the store keeps a record of all ammunition sales. Although she did not make the sale, she testified without objection that the store record showed a sale to Michael Alan Foote on February 9 of three boxes of “Western Brand .32 S & W” (Tr. 463) ammunition. The purchaser gave a California address and driver’s license number. His age was shown as 31. The same party purchased one box of Peters .32 auto ammunition on February 11 and three boxes on February 19. On cross-examination, Ms. Young-Kin once again stated that she did not make the record entries herself and went on to say that she was not employed by Steinberg’s when the sales were made. After the close of cross-examination, the records were received in evidence over a defense objection. There was no showing that the entrant of the records was unavailable to testify, and the evidence should have been excluded. State v. Monroe, 345 So.2d 1185 (La., 1977); State v. Martin, 356 So.2d 1370 (La., 1978). However, the information in the records had been given to the jury in Ms. Young-Kin’s oral testimony without objection. State v. Isaac, 261 La. 487, 260 So.2d 302 (1972); State v. Nix, 327 So.2d 301 (La., 1976). The records themselves did not prejudice the defendant’s rights, since the jury had already heard the evidence. State v. Hillman, supra; State v. Provost, 352 So.2d 661 (La., 1977). Compare State v. Hebert, 356 So.2d 991 (La., 1978).

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

      . The other assignments of error were not briefed or argued and are considered abandoned. State v. Bennett, 345 So.2d 1129 (La., 1977).


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Ray Mathews KORMAN.
    No. 65248.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    Rehearing Denied March 3, 1980.

      Robert D. Downing, Alexandria, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn Castle, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-relator.
   MARCUS, Justice.

Ray Mathews Korman was charged by bill of information with possession with intent to distribute marijuana in violation of La.R.S. 40:966(A)(1). Defendant filed a motion to suppress the twenty-two and one-half pounds of marijuana seized from his residence during the execution of a search warrant. He argued that the search warrant contained an inaccurate description of the place to be searched in that it incorrectly stated'the municipal number of his apartment building. After a hearing, the trial judge sustained the motion. We granted the state’s application under our supervisory jurisdiction to review the correctness of this ruling. La.Const. art. 5, § 5(A).

The search warrant described the place to be searched as “6656 Harry Drive, Apartment # 119”; defendant testified at the suppression hearing that the correct municipal number of his residence was “6636 Harry Drive, Apartment 119.”

Sgt. Jay Thompson of the East Baton Rouge Sheriff’s Office testified at the suppression hearing. He stated that, upon receiving information from a reliable confidential informant concerning defendant’s alleged illegal activities, he picked up the informant and drove to defendant’s apartment complex where the informant pointed out the building in which defendant resided and informed him that defendant’s apartment was 119 and was located therein. The officer obtained the municipal number of defendant’s residence from a sign in front of the apartment complex which bore the words “Georgetown Apartments, 6656 Harry Drive.” This was the only sign in front of the apartment complex and was located in close proximity to defendant’s apartment (estimated as a matter of yards). A photograph of the sign was introduced in evidence. A surveillance of the apartment complex was set up and defendant was observed entering and leaving apartment 119. Thompson did not verify defendant’s address with the building manager because in the past when he had done so the managers had often informed the tenants of the police inquiries.

During the execution of the warrant, Thompson realized that each building in the complex had separate numbers and that defendant’s apartment was located in a building designated by the municipal number 6636 Harry Drive rather than 6656 Harry Drive as stated in the warrant. Defendant’s apartment was the only one numbered 119 in the complex.

A search warrant must particularly describe the place to be searched. U.S. Const. Amend. 4; La.Const. art. 1, § 5 (1974); La.Code Crim.P. art. 162. The description contained in the search warrant is adequate if it is sufficiently detailed so as to allow the officers to locate the property with reasonable certainty and with reasonable probability that they will not search the wrong premises. Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757 (1925); State v. Segers, 355 So.2d 238 (La.1978); State v. Cobbs, 350 So.2d 168 (La.1977).

This court has held that a minor error in a portion of the description of the premises to be searched does not invalidate the search. State v. Segers, supra; State v. Petta, 354 So.2d 563 (La.1978); State v. Cobbs, supra; State v. Alexander, 337 So.2d 1111 (La.1976); State v. Chaffin, 324 So.2d 369 (La.1975), cert. denied, 426 U.S. 907, 96 S.Ct. 2228, 48 L.Ed.2d 832. In Petta, we upheld the search of 1435 Crete Street under a search warrant authorizing the search of 1433 Crete Street, Apartment C. In Alexander, a search of 245 Pearl Street under a warrant authorizing the search 243 Pearl Street was upheld. Similarly, the federal courts have upheld searches where there was a minor error in a portion of the description of the premises in the warrant. Steele v. United States, supra; United States v. Darensbourg, 520 F.2d 985 (5th Cir. 1975), and cases cited therein. In Steele, the Supreme Court upheld the search of 609 West 46th Street under a warrant authorizing the search of 611 West 46th, the building being a large warehouse having these two numbers and only partly partitioned. In Darensbourg, the description in the warrant was “Apartment # 70, located at 3101 Highland Rd., in the City of Baton Rouge.” The apartment intended by it was located in' a large four-building complex which bordered on both July Street and Highland Road and contained approximately 450 apartments. The apartment searched was the only one in the complex numbered 70. But it was in fact located on July Street, not 3101 Highland Road, which was the address of the business office of the complex. Apartment 70 was about 300 yards from the business office, in a separate building. The buildings were separated by a canal. The Fifth Circuit Court of Appeals upheld the search. Defendant’s reliance on State v. Lee, 247 La. 553, 172 So.2d 678 (1965), is misplaced. In Lee, the sworn affidavit upon which the search warrant was issued referred to a residence at 2127 Bienville Street in New Orleans. But when officers arrived at the house which they later searched, they found that it had a different municipal number than that cited in the warrant and the underlying affidavit. They telephoned the trial judge who had issued the warrant and informed him the number should read 2123 rather than 2127 Bienville Street. The judge approved a change in the warrant. Without passing upon the correctness of Lee, it is clearly distinguishable from the instant case. Here, the executing officer did not take it upon himself to amend the search warrant or to knowingly enter and search premises located at a different municipal number from that described in the warrant.

Under the facts of this case, there was little possibility that an apartment not intended to be searched could have been searched through mistake — as indeed it was not. Hence, we conclude that the description in the search warrant sufficiently described the place to be searched. The trial judge erred in holding otherwise.

DECREE

The ruling of the trial judge sustaining the motion to suppress is reversed and set aside; the case is remanded to the district court for further proceedings.


author: PER CURIAM.

text:
    STATE of Louisiana v. Marcel James KNOTT.
    No. 65365.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    Rehearing Denied March 3, 1980.
    Lucius A. Hornsby, Jr., Hornsby & Landry, Lafayette, J. Burton Willis, St. Martin-ville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Ralph K. Lee, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Having reviewed all the assignments of error filed by the defendant, we find that they present no reversible merit and do not require published explanation because they do not present any question of unsettled law. Therefore, these assignments are discussed in an unpublished, but publicly recorded, appendix to this opinion.

The defendant’s conviction and sentence ' are affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Andrew MOODY.
    No. 65497.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    Rehearing Denied March 3, 1980.
    Alex Rubenstein, Gamm, Greenberg & Kaplan, Shreveport, for defendant-appel- • lant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., Dale G. Cox, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Having reviewed all the assignments of error filed by the defendant, we find that they present no reversible merit and do not require published explanation because they do not present any question of unsettled law. Therefore, these assignments are discussed in an unpublished, but publicly recorded, appendix to this opinion.

The defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: BLANCHE, Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION v. William A. SUMMERS, III.
    No. 61905.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    Harold J. Lamy, New Orleans, Chairman, Roland J. Achee, Shreveport, Wood Brown, III, New Orleans, Sam J. D’Amico, Baton Rouge, Leonard Führer, Alexandria, Edgar H. Lancaster, Jr., Tallulah, Alfred S. Landry, New Iberia, A. Russell Roberts, Metair-ie, John B. Scofield, Lake Charles, Thomas 0. Collins, Jr., New Orleans, Executive Counsel for Louisiana State Bar Association, Committee on Professional Responsibility for petitioner.
    Emile Carmouche, Gretna, for respondent.
   Disciplinary Proceeding

BLANCHE, Justice.

This matter comes before us on a petition of the Committee on Professional Responsibility of the Louisiana State Bar Association seeking disciplinary action against one of its members, William A. Summers, III. Following a formal investigatory hearing, the Committee instituted this suit and we appointed Mr. James J. Davidson, III as Commissioner to take evidence and file a report with this Court stating his findings of fact and conclusions of law.

In its petition filed March 28, 1978, the Louisiana State Bar Association made the following four specifications of misconduct:

SPECIFICATION NO. 1
Respondent was retained in 1974 by Josephine Russo Aiavolasiti and Vincent E. Aiavolasiti to assist and advise them concerning certain financial problems. With respect to this representation, Respondent did fail to advise them of a conflict of interest created by the fact that certain parties with whom Respondent would have them transact business were, in fact, also Respondent’s clients. Specifically, Respondent, in concert with Pontchartrain Mortgage Investment Corporation, also Respondent’s client, a fact not made known by Respondent to his clients, Mr. and Mrs. Aiavolasiti, arranged the following business transactions with the resulting consequences. Mr. and Mrs. Aiavolasiti owned a residence located at 6066 Bellaire Drive in New Orleans, in which they had an equity valued at approximately Twenty-Five Thousand ($25,000.00) Dollars. Acting on Respondent’s advice, Mr. and Mrs. Aiavo-lasiti executed a promissory note and collateral mortgage in favor of Pontchartrain Mortgage Investment Corporation on December 13, 1974, in the principal amount of $20,000, with interest at the rate of ten (10%) percent per annum from maturity and due sixty (60) days from date. Mr. and Mrs. Aiavolasiti only received $6,913.00 from the proceeds of this loan after $7,000 was deducted as a discount, $1,087 was deducted as closing costs, and Respondent deducted $5,000 as his fee. Again, acting upon Respondent’s advice after the loan was in default and executory proceedings were filed, Mr. and Mrs. Aiavolasiti executed a dation en paiement for their property to Pontchartrain Mortgage Investment Corporation for cancellation of the mortgage and the sum of $500.00. Respondent never disclosed his relationship with Pontchartrain Mortgage Investment Corporation to Mr. and Mrs. Aiavolasiti, including being agent for service of process and attorney for the corporation. All of the foregoing being in violation of Disciplinary Rule 1 — 102 of the Code of Professional Responsibility of this Association.
SPECIFICATION NO. 2
Respondent was retained by Josephine Russo Aiavolasiti and Vincent E. Aiavola-siti to provide legal counsel in an effort to obtain a lessee for their business known as Swanson’s Seafood Restaurant. Thereafter, he advised his clients that The Omni Corporation would execute such a lease of the Restaurant. Respondent did not advise his clients of his pro-prietory interest in The Omni Corporation and that he was an officer thereof. On December 31, 1974, Respondent presented a document to Mr. and Mrs. Aiavolasiti for their signature. Respondent represented this document to be a lease-purchase agreement when, in fact, the document, which Respondent had his clients execute, was an Act of Sale and Assumption with the stated consideration being $2,000.00 cash, the delivery of a $15,000.00 note to be paid in sixty (60) equal installments of $315.03 by The Omni Corporation (which note was never delivered), assumption by The Omni Corporation of that certain mortgage executed by Respondent’s clients in favor of Mrs. Frank Swanson in the original amount of $62,300.00, and assumption by The Omni Corporation of all outstanding obligations of Swanson’s Restaurant, not to exceed $50,000.00. That Respondent’s failure to properly and clearly disclose his conflict of interest and the true nature of the instrument he advised Mr. arid Mrs. Aiavolasiti to sign, all as set out above, were in violation of the Code of Professional Responsibility, specifically, DR 1— 102.
SPECIFICATION NO. 3
A few months after Omni had assumed title to Swanson’s Restaurant through the transaction set out in Specification No. 2 above, Mr. and Mrs. Aiavolasiti became aware of the fact that various obligations they were led to believe by Respondent were assumed by The Omni Corporation were not being paid. They consulted Respondent and he assured them he would handle such matters. Thereafter, however, Respondent failed to properly handle their legal and financial problems. On February 26,1975, suit was filed by George Aiavolasiti against Mr. and Mrs. Vincent E. Aiavolasiti individually d/b/a Swanson’s Restaurant, on a promissory note in the amount of $25,-000, executed by Vincent Aiavolasiti in favor of the Whitney National Bank and purchased by George Aiavolasiti. Suit was under docket number 587-868 of the Civil District Court for the Parish of Orleans. Respondent undertook the defense of this claim on behalf of Mr. and Mrs. Aiavolasiti, without identifying to them his proprietory interest and official position in The Omni Corporation which was in conflict with their interest. This note was one of the obligations assumed in the transfer of the business described in Specification No. 2, above. Thereafter, Respondent failed to third-party his company, The Omni Corporation, or to otherwise seek relief from it, and ultimately permitted a judgment by default to be entered on July 2, 1975, against his clients, all in violation of Disciplinary Rules 1 — 102(A)(4), 5-101(A), 6-101(A)(3), and 7-101(A) of the Code of Professional Responsibility of this Association.
SPECIFICATION NO. 4
Mr. and Mrs. Aiavolasiti consulted. LeRoy A. Hartley, Attorney, about their plight and on July 13, 1975, terminated Respondent’s services. Thereafter, T. Allen Usry, Esq., instituted legal proceedings against Respondent on behalf of Mr. and Mrs. Aiavolasiti seeking a return of their property and other legal and equitable relief. Thereafter, Respondent ignored letters, eluded process servers, and generally attempted to escape the responsibilities of his misconduct in violation of Disciplinary Rule 6-102 of the Code of Professional Responsibility of this Association.

The Commissioner held his hearing and thereafter, on August 22, 1979, filed his report and recommended that respondent be suspended from the practice of law for six months. Both respondent and the Committee concurred in the findings and conclusions. However, the Committee seeks a period of suspension greater than that recommended by the Commissioner. Following are the facts and conclusions of the Commissioner as adopted by this Court.

“Respondent, William A. Summers, III, was retained in 1974 by Josephine Russo Aiavolasiti and Vincent E. Aiavolasiti to advise them with reference to certain financial problems . . . [Wjith respect to this representation, Respondent [failed] to advise them of a conflict of interest created by the fact that certain parties with whom Respondent would have the Aiavolasitis transact business during the course of their financial dealings were, in fact, also Respondent’s clients. Specifically, Respondent, in concert with Pontchartrain Mortgage Investment Corporation, also Respondent’s client, arranged several business transactions. . . . Respondent did not make known to his clients, Mr. and Mrs. Aiavolasiti, of his representation of Pontchartrain Mortgage Investment Corporation. During the course of these dealings, Mr. and Mrs. Aiavolasiti executed a promissory note and collateral mortgage in favor of Pontchartrain Mortgage Investment Corporation on December 13, [1974] in the principal amount of $20,000.00, with the interest at the rate of 10 percent per annum from maturity and due sixty days from date. [In return] for their execution of the above said promissory note and collateral mortgage, Mr. and Mrs. Aiavolasiti only received $6,913.00 from the proceeds of this loan after $7,000 was deducted as a discount, $1,087.00 was deducted as closing costs, and Respondent deducted $5,000 as his fee [to handle all matters for the Aiavolasitis]. Acting on Respondent’s advice, Mr. and Mrs. Aiavolasiti executed a dation en paiement of their property to Pontchartrain Mortgage Investment Corporation for cancellation of the mortgage in the sum of $500.00 after said mortgage was in default and executory proceedings were filed. Respondent . . . never disclosed his relationship with Pontchartrain Mortgage Investment Corporation to Mr. and Mrs. Aia-volasiti, including being agent for service of process and attorney for the corporation. . [T]he above said conduct was in direct violation of Disciplinary Rule 1-102 of the Code of Professional Responsibility of the Louisiana State Bar Association.

“. . . Further, . . . Respondent was retained by Mr. and Mrs. Aiavola-siti to provide legal counsel in an effort to obtain a lessee for their business known as Swanson’s Seafood Restaurant. He thereafter arranged a purported lease-purchase agreement between the Omni Corporation and his clients, Mr. and Mrs. Aiavolasiti, without advising his clients of his proprietary interest in the Omni Corporation and that he was an officer thereof. [Respondent’s] clients [understood] that the document was a lease-purchase agreement when, in fact, the document which Respondent had his clients execute was an act of sale and assumption with the stated payment of $2,000.00 cash, the delivery of a $15,000.00 note to be paid in sixty (60) equal installments of $315.03 by the Omni Corporation, the assumption by Omni Corporation of that certain mortgage executed by Mr. and Mrs. Aiavolasiti in favor of Mrs. Frank Swanson, in the original amount of $62,-300.00, and the assumption by Omni Corporation of all outstanding obligations of Swanson’s Restaurant not to exceed $50,-000.00. . . . Respondent’s failure to disclose his conflict of interest and [to assure that Mr. and Mrs. Aiavolasiti knew] the true nature of the instrument he advised them to sign were in direct violation of Disciplinary Rule 1 — 102 of the Code of Professional Responsibility of the Louisiana State Bar Association.

“. . . [Sjhortly after the transfer of Swanson’s Seafood Restaurant to the Omni Corporation, Mr. and Mrs. Aiavolasiti became aware that various obligations which Respondent led them to believe were assumed by the Omni Corporation were not being paid. Despite Respondent’s assurances that he would handle such matters, on February 26, 1975, suit was filed by George Aiavolasiti against Mr. and Mrs. Aiavolasiti, individually, d/b/a Swanson’s Seafood Restaurant, on a promissory note in the amount of $25,000.00 executed by Mr. Aiavolasiti in favor of Whitney National Bank and purchased by George Aiavolasiti. The suit was under Docket Number 587-868 of the Civil District Court of the Parish of Orleans. Respondent undertook the defense of the claim on behalf of Mr. and Mrs. Aiavolasiti without identifying to them his proprietary interest and official position in the Omni Corporation which was in conflict with their interests. The note previously described was one of the obligations assumed in the transfer of the business described in specification No. 2 above. [H]ow-ever, thereafter, Respondent failed to third-party his company, the Omni Corporation, or otherwise to seek relief from it, and ultimately permitted a judgment by default to be entered against his clients on July 2, 1975. . . . [T]he aforesaid acts are in direct violation of Disciplinary Rules 1— 102(A)(4), 5-101(A), 6-101(A)(3), and [7-101(A)] of the Code of Professional Responsibility of the Louisiana State Bar Association.

“. . Mr. and Mrs. Aiavolasiti terminated Respondent’s service on July 13, [1975] and instituted legal proceedings against Respondent seeking a return of their property and other legal and equitable relief. Thereafter, Respondent ignored letters, evaded process servers, and generally attempted to escape the responsibilities for his misconduct. . . . [These] actions were in direct violation of Disciplinary Rule 6-102 of the Code of Professional Responsibility of the Louisiana State Bar Association.”

The Commissioner also found that Summers “intentionally committed the acts of commission or omission . . . [which] violated the various Disciplinary Rules of Professional Responsibility.” The Commissioner stated that he felt these acts to be “intentional and in direct contravention of the interest of both Respondent’s clients and the Louisiana State Bar Association.” In mitigation of the offenses, the Commissioner did find that Respondent had “apparently made complete restitution of all losses to those parties involved”. As a result of all of the above, the Commissioner recommended that the appropriate disciplinary action would be a suspension of Summers’ license to practice for a period of six months.

We note that Respondent consistently failed to advise his clients, the Aiavolasitis, of adverse interests which he had (either other clients or actual proprietary interests) and which he may have been serving while he was supposed to be representing their interests. Not only was there a failure to disclose this information but also a failure to explain to them the nature of an instrument which he had them sign. That instrument instead of being a lease-purchase agreement (as the Aiavolasitis believed), was an act of sale in which the purchaser was a company of which Respondent was part owner. A full copy of the instrument was not presented to them for their signatures (the first page was missing), nor was a copy ever furnished to them.

The only restitution which we can find to have been made by Respondent was that achieved through the filing of suits, and the only payments made were those by Respondent’s liability insurer. The Aiavolasitis were not able to regain their home, nor were they able to regain their business except for rights to the name, which they finally were able to regain after a lawsuit and to sell for less than the value of the entire business.

The supposed full representation in all of their affairs, for which the Aiavolasitis paid $5,000, brought them only a compounding of the problems which they sought to have resolved.

The purpose of taking disciplinary action against a member of the bar is not to provide punishment for his acts or his failure to act. Rather, disciplinary action is designed to protect the public, the courts, and other members of the profession from such things as future misuse of a position of trust or from the actual disrepute and lack of trustworthiness arising from criminal conduct or moral turpitude. See, e. g., La. State Bar Ass’n v. Brown, 291 So.2d 385 (La.1974); La. State Bar Ass’n v. Weysham, 307 So.2d 336 (La.1975) and cases cited therein.

Honesty, integrity and professional competence are qualities which must be demanded of attorneys and judges. In the case of a lawyer, it is his fair and full representation of his clients’ interests that gives the advocacy concept of our system of law its meaning. He is also the major influence in the judiciary’s function to render fair and impartial justice to those whom we both serve. For the sake of the system, he owes the duty to conduct his clients’ affairs so as not to destroy public confidence in the profession and the courts which he serves.

We feel that Respondent’s activities show not only an ineptitude in the practice of law but such fault as to render him unworthy of the trust of his clients, of the courts, or of other members of the legal profession. Such activities not only cause direct harm to his clients but also bring the entire profession under a shadow because the lack of the ability to be trusted can be extended by his clients and other members of the public to other attorneys and to the courts in which they practice.

Given the circumstances of misconduct as shown in this case and the harm caused to his clients, as well as the adverse reflection cast upon the entire legal profession by Respondent’s conduct, we feel that only the disbarment of Respondent can be the appropriate action imposed by our obligation to the public and to the profession.

For the reasons assigned, it is ordered, adjudged and decreed that the name of William A. Summers, III be stricken from the Roll of Attorneys and his license to practice law in the State of Louisiana be revoked and cancelled.

DISBARMENT ORDERED.


author: DIXON, Justice.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Wallace R. ELLENDER, Jr. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Vivian E. CHAMPAGNE et al.
    No. 65030.
    Supreme Court of Louisiana.
    Jan. 28, 1980.

      See also La.App., 371 So.2d 638.
    Bryan Miller, Asst. Gen. Counsel, State of La., through the Dept, of Highways, Baton Rouge, for plaintiff-respondent.
    Thomas L. Wright, Ellender, Wright & Wurzlow, Houma, for defendants-applicants.
   DIXON, Justice.

The defendants in this expropriation suit, Vivian E. Champagne and Wallace R. El-lender, Jr., are the owners of contiguous tracts of land in Terrebonne Parish. In addition, Ellender holds a recorded agricultural lease on the Champagne property. The state, through the Department of Highways (now known as the Department of Transportation and Development), expropriated portions of both pieces of property under the provisions of R.S. 48:441-60. El-lender was the sole defendant in a suit bearing his name pertaining to the expropriation of the land belonging to him. He was also made a defendant in a suit brought against Champagne as to her property, since he was the lessee of record of that property. The suits were consolidated for trial. Champagne was awarded a total of $163,794.88, of which $41,688.31 was to be paid to Ellender as the lessee of the Champagne property. Ellender was awarded a total of $16,256.00 for the expropriation of a portion of his tract. The state was given credit for moneys previously deposited, in the amount of $17,225.00 against the Champagne claim and $600.00 against the Ellender claim. The state appealed, and the Court of Appeal affirmed in part, reversed in part and remanded with instructions. 371 So.2d 626 (1st Cir. La.App.1979). We granted writs of certiorari to review that portion of the Court of Appeal decision which reversed the trial court’s award of $18,899.17 to the defendants for damage to crops on part of the Champagne property not actually taken by the state.

The record indicates that, during the construction following the expropriation of the defendants’ land, the drainage on the Champagne property was impaired, and portions of that tract were flooded. As a result, the crop yield for that year was diminished. In their answer to the state’s petition in the Champagne suit, the defendants prayed to recover damages for the crop loss, to be divided between them by giving Ellender % and Champagne Vfc. The trial court initially refused to hear evidence in support of this claim, but changed its mind and awarded damages on the basis of evidence admitted by proffer.

In reversing that award by the trial court, the Court of Appeal stated:

“It has long been settled jurisprudence of this state that in expropriation proceedings for highway construction, the sole issues before the court are the value of the part taken and severance damages to the remainder. Louisiana Highway Commission v. Dunn, 173 La. 998, 139 So. 324 (1932); Louisiana Highway Commission v. DeBouchel, 174 La. 968, 142 So. 142 (1932); State, Department of Highways v. Mouledous, 199 So.2d 185 (La.App. 3d Cir. 1967), writ refused June 20, 1967; State, Through Dep’t of Highways v. A. Wilbert’s Sons Lbr., 346 So.2d 842 (La. App. 1st Cir. 1977), writ denied 349 So.2d 1271 (La.1977), State Through Dep’t of Highways v. Smith, 353 So.2d 322 (La. App. 1st Cir. 1977), writ granted 354 So.2d 1051 (La.1978). The claim of the defendants for this particular crop damage ' is clearly one in tort. While we concede that in the interest of judicial economy certain claims, including the one now asserted, could very well be litigated and disposed of during the expropriation hearing, the decision to do so now rests with the Supreme Court of this state as that court alone has the authority to reverse the above cited cases. It is not within this court’s or the district court’s province to do so.”

It is true that the decisions of this court cited by the Court of Appeal did limit the issues to be decided in an expropriation case, although damages were not limited to severance damages. Louisiana Highway Commission v. Dunn, 173 La. 998, 139 So. 324 (1932) and Louisiana Highway Commission v. DeBouchel, 174 La. 968, 142 So. 142 (1932). The question to be decided is whether those cases, decided nearly fifty years ago, are to be followed today. That decision must be based on an examination of the law currently applicable.

This suit was brought under R.S. 48:441— 60, which provide for the “quick taking” of land that is deemed necessary for a state highway project. Title is vested in the state upon the deposit with the court of an amount estimated to be just and adequate compensation for the property taken. The defendant is given notice of the deposit and thereafter has ten days to dispute the validity of the taking. The owner of any property taken may obtain a trial to determine the just and adequate compensation to which he is entitled by filing an answer to the state’s petition. R.S. 48:454 provides: “Except as provided in this Part, these suits are tried in accordance with the provisions of the Code of Civil Procedure and general expropriation laws.” That statute makes it clear that the general procedural rules set out in the Code of Civil Procedure are to be followed absent an express provision to the contrary.

In the present case the defendants were served with the state’s petition and answer that petition by alleging damages caused to them by the plaintiff, and praying for relief based on those damages. The defendants’ action in so doing amounted to the assertion of a reconventional demand against the state under the provisions of C.C.P. 1061 which provides:

“The defendant in the principal action may assert in a reconventional demand any action which he may have against the plaintiff in the principal action, even if these two parties are domiciled in the same parish and regardless of connexity between the principal and reconventional demands.”

A reconventional demand is a type of incidental action provided for in Chapter 6 of the Code of Civil Procedure. C.C.P. 1032 provides, in part, that “[a]n incidental demand instituted by the defendant in the principal action may be incorporated in his answer to the principal demand.” C.C.P. 1033 provides, in part, that “[a]n incidental demand may be filed without leave of court at any time up to and including the time the answer to the principal demand is filed.”

The Court of Appeal recognized that the defendants’ answer set up a reconventional demand for the crop losses in question, but denied the damages because the claim was one in tort. In so doing, the Court of Appeal erred; there is no sound basis in our law for denying a defendant his procedural right to assert reconventional demands in a suit brought against him merely because the principal action involves expropriation and his reconventional demand happens to be one in tort. R.S. 48:454 provides that expropriation suits are to be tried according to the Code of Civil Procedure, which, absent provision to the contrary, we must interpret to include those provisions relative to incidental actions. We can find no provision of the law of expropriation that prohibits a defendant from using his right to assert his claims against the state in a reconventional demand.

Article 1, § 22 of the Constitution of this state provides:

“All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property,, reputation, or other rights.”

In State of Louisiana, Through Department of Highways v. Jeanerette Lbr. & Shingle Co., 350 So.2d 847 (La.1977), that provision was relied upon in broadly construing a defendant’s right in an expropriation suit to challenge, in the expropriation suit itself, the validity of the state’s purpose in effecting the expropriation, without resorting to a separate suit. That constitutional provision will be served in the present case by allowing the defendants to assert whatever claims they have against the state without the necessity of participating in repeated litigation.

The state argues that to permit a defendant to assert any claims that he may have against the state by reconvention in an expropriation suit would impede the process of expropriation and thereby cause delay in vital construction projects. That argument is unfounded. In a “quick taking” proceeding such as this one, the state acquires title simply by depositing with the clerk of court the amount estimated to be the compensation to which the defendant is due. R.S. 48:445. The issue of the validity of the taking must be raised by a motion to dismiss the suit, which must be filed within ten days of notice of the deposit. R.S. 48:447. The state is thereafter free to take possession of the expropriated property and begin construction. The issue of the compensation due the defendant is not decided until after the state has acquired title. If only a portion of a defendant’s tract is taken, the defendant need not even file his answer asserting his claims against the state until one year from the date he is notified that the state has finally accepted construction of the project for which the property was expropriated. R.S. 48:450. Severance damages are fixed as if the project were completed. R.S. 48:453. It can in no way inhibit the process of expropriation to allow a defendant to assert claims in an expropriation suit if the suit itself is to be decided after the state has acquired title and quite possibly after the attendant construction is completed.'

We therefore hold that there is no sound reason for denying a defendant his procedural right to assert reconventional demands against the state in an expropriation suit, irrespective of the basis of those demands. The cases of Louisiana Highway Commission v. Dunn, supra, and Louisiana Highway Commission v. DeBouchel, supra, are overruled insofar as they state a contrary rule.

For the reasons assigned, the decision of the Court of Appeal is reversed insofar as it reversed the trial court’s award for damages to crops on the portion of the Champagne property not actually taken; the case is remanded to the Court of Appeal to review the correctness of the trial court’s finding on this issue, consistent with this opinion; the plaintiff is cast for costs of all proceedings in this court.


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

text:
    STATE of Louisiana v. Vernell J. NELSON.
    No. 65182.
    Supreme Court of Louisiana.
    Jan. 28, 1980.

      Robert Barnard, New Orleans, Orleans Indigent Defender Program, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Yernell Nelson, was convicted of two counts of armed robbery, La.R.S. 14:64. On the basis of these convictions and evidence of a 1977 theft conviction he was declared to be a multiple offender; consequently, he was sentenced to serve fifty years’ imprisonment at hard labor on each armed robbery conviction.

The defendant designates one error in his assignments of error and requests that we inspect the pleadings and proceedings for any discoverable error. Our review has revealed no errors patent on the face of the record, nor do we think the trial court committed error as alleged in defendant’s assignment. But his designation of error does perhaps call for explication of one of our recent opinions.

Defendant contends that his enhanced punishment as an habitual offender was based wrongfully upon his involuntary guilty plea to theft in 1977. At the habitual offender hearing the state introduced fingerprints linking the defendant with his 1977 guilty plea to theft and court minutes showing that he was represented by counsel in that proceeding. However, the state did not present a contemporaneous record of the 1977 guilty plea to theft affirmatively showing that the defendant was informed of and knowingly waived his right to jury trial, his right to confront his accusers, and his privilege against self-incrimination. Defendant argues, therefore, the state was not entitled to judgment enhancing his sentence as a multiple offender because the state did not fulfill its obligation to prove that his 1977 guilty plea was knowing and voluntary. Accordingly, the issue is: Before the prosecution may use a prior conviction to enhance punishment what burden of proof must it sustain that an underlying guilty plea was knowing and voluntary?

In State v. Holden, 375 So.2d 1372 (La.1979), we reaffirmed State v. Lewis, 367 So.2d 1155 (La.1979), as to convictions based on guilty pleas in Louisiana courts subsequent to December 8, 1971; however, we added one element to the Lewis scheme relating to the state’s burden of proof to show that the conviction being used to enhance the sentence was the result of a voluntary guilty plea. In Holden we stated:

“ * * * [W]e adhere to Lewis insofar as it applies to convictions in Louisiana state courts subsequent to December 8, 1971, the date of Jackson’s [State ex rel. Jackson v. Henderson, 260 La. 90, 255, So.2d 85] finality. Upon objection by defense counsel that the guilty plea does not affirmatively show it was taken in compliance with Jackson and LeBlanc [State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557], the state will have the burden to show as to these convictions that the defendant waived his constitutional rights as required by the cited opinions of this court.” 375 So.2d at 1376.

Thus, with respect to a conviction based on a guilty plea in a Louisiana court subsequent to December 8,1971, if the defendant objects to the predicate for the state’s evidence that the guilty plea was knowing and voluntary, the state has the burden of showing affirmatively a contemporaneous record that, at the time of the plea, the accused was informed of and made a knowing waiver of his privileges against self-incrimination, his right to a jury trial, and his right of confrontation. If the defendant does not object on this ground, the state, in order to establish the knowing and voluntary guilty plea, is required only to prove that the prior conviction resulted from the defendant’s guilty plea at which he was represented by counsel. State v. Holden, supra, 375 So.2d at 1376.

The prosecution’s failure to produce a contemporaneous record affirmatively showing a knowing and voluntary waiver of the three major constitutional rights shall be treated as a trial irregularity in the enhancement of sentence hearing. The defendant, in failing to object at the time the convictions are introduced or to prove as a matter of defense that no record exists which shows that the sentencing judge complied with the Boykin requirements, waives the irregularity. See La.C.Cr.P. art. 841; State v. Holden, supra. However, just as with other trial irregularities involving fundamental rights, the defendant’s failure to object or present evidence of the non-existence of the record does not prevent his raising the lack of a record of the constitutionally required j'udicial determination that his plea was voluntary in an application for a writ of habeas corpus, La.C.Cr.P. art. 362, or in a motion for a new trial, La.C.Cr.P. art. 851. See La.C.Cr.P. art. 841, Official Revision Comment (b).

Applying the rules of State v. Holden to the present case, we conclude that the prosecution satisfactorily discharged its burden of proving that the defendant’s 1977 plea was voluntary. The minutes showed that the defendant was represented by counsel, and the defendant failed to object to the lack of a predicate for use of his prior conviction. The defendant produced no evidence as a matter of defense that there was no contemporaneous record affirmatively showing compliance with Boykin, nor did he move for a new trial on that basis.

Accordingly, the defendant’s convictions and sentences are affirmed.

AFFIRMED.

DIXON, J., concurs.

DENNIS and MARCUS, JJ., concur and assign reasons.

SUMMERS, C. J., and BLANCHE and WATSON, JJ., concur in the result only.

DENNIS, Justice,

concurring.

To promote judicial stability on an issue which has been confused almost beyond understanding, I reluctantly join the majority in following the rules of State v. Holden, 375 So.2d 1372 (La.1979). I cannot subscribe, however, to Holden’s reasoning. As Justice Dixon pointed out in his dissenting opinion therein, State v. Holden, supra, 375 So.2d at 1376, the Supreme Court’s decision in United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979) was mistakenly applied by the Holden majority in several respects.

Timmreck merely held that a federal prisoner may not attack collaterally his conviction on the basis of the trial judge’s violation of Federal Rule of Criminal Procedure ll’s “formal” requisite that the defendant be informed of the mandatory special parole term. The high court explicitly excluded from the effect of its holding “constitutional” and “jurisdictional” violations or defects which occur at the time of a defendant’s guilty plea. The Holden majority erred, therefore, in relying on Timmreck to restrict the ambit of remedy for violations of constitutional dimensions in state guilty plea proceedings.

Moreover, the Holden majority’s misreading of Timmreck is superimposed on its even more disturbing misconception that the Supreme Court in Boykin “constitution-alized” the requirements of Federal Rule of Criminal Procedure 11, so as to allow each change in construction or application of Rule 11 to affect a litigant’s rights under Boykin. See State v. Holden, supra, 375 So.2d at 1374. A fair reading of the majority opinion in Boykin, subscribed to by six members of the high court, as opposed to the view of a two-member minority, reflects that the Court’s decision was founded directly on the constitution. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In the majority opinion Justice Douglas alluded to Federal Rule 11 in footnote 5 and quoted from McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), in which the Court stressed that the rule was designed to assist the district judge in making the constitutionally required determination that a defendant’s guilty plea is truly voluntary. However, this reference cannot be taken reasonably as a holding that Federal Rule 11 in its entirety, including all its formal requirements and all subsequent amendments, shall be applicable to the states.

Even if one ignores the faulty premises of the Holden majority opinion, it is difficult to understand how the majority inferred from Timmreck that the state should be relieved, by defendant’s failure to object, of its obligation to prove the voluntariness of his prior conviction with a contemporaneous record in order to have him declared an habitual offender deserving of enhanced punishment. As I read Timmreck, it forecloses a federal prisoner’s collateral attack on his guilty plea only if it is based on a formal violation of Federal Rule 11, rather than a constitutional or jurisdictional defect. The Timmreck court did not indicate, expressly or impliedly, that it intended to affect a defendant’s right to attack collaterally a guilty plea accepted in violation of his fundamental safeguards.

MARCUS, Justice

(concurring).

I would overrule both State v. Lewis, 367 So.2d 1155 (La.1979) and State v. Holden, 375 So.2d 1372 (La.1979); however, if Lewis is not overruled outright, I would continue to concur in the limitation placed on it in Holden. Accordingly, I respectfully concur.


text:
    STATE of Louisiana v. Andrew JOSEPH.
    No. 65198.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Robert T. Myers, Asst. Dist. Atty., for plaintiff-relator.
   WATSON, Justice.

The State of Louisiana was granted a writ of review in this matter upon a representation that the trial court erred in ordering the State to answer interrogatory number 24 posed by counsel for defendant, Andrew Joseph. Interrogatory number 24 reads:

“Does the State have in its possession statements of any person who has been interviewed by an agent of the State in connection with the subject matter of this case or matters related to the evidence to be introduced in this case and whom the State does presently intend to call at trial? If yes, please provide copy of same to the defendant.”

The trial court’s first ruling on this interrogatory was as follows:

“In paragraph 24 defense seeks to know whether the State has in its possession any interviews by the State which they do intend to call? I make the same ruling as to 24 as I did to paragraph 23, the defendant is entitled to know if it exists, but not contents, the State must furnish by 4:00 PM July 20.” (Tr. 10)

At a subsequent hearing on July 20, the trial court ruled that the defendant was entitled to a “non-exculpatory statement” (Tr. 1). The statement is not otherwise identified, but the parties agree in the briefs that the ruling relates to oral statements made by defendant to a private citizen. In the State’s answer to defendant’s interrogatory number 14, this individual is identified as Evan Butler, to whom defendant is alleged to have made oral, precustodial statements on October 13, 14, and 16, 1968. Apparently, the State complains of the ruling of July 20, because the original ruling on interrogatory 24 was favorable to the State.

There is no representation that defendant is entitled to the material because it is of an exculpatory nature. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Although some commentators advocate disclosure of all relevant evidence, there is no constitutional requirement that the prosecution’s complete case be revealed to the defendant. United States v. Agurs, supra; Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972).

The issue is whether the State is required to divulge the contents of an oral inculpatory statement made by defendant to a private citizen when the State plans to use that evidence at trial.

LSA-C.Cr.P. art. 716 provides as follows:

“A. Upon motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph or otherwise reproduce any relevant written or recorded confession or statement of any nature, including recorded testimony before a grand jury, or copy thereof, of the defendant in the possession, custody, control, or knowledge of the district attorney.
“B. Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the existence, but not the contents, of any oral confession or statement of any nature, made by the defendant, which the district attorney intends to offer in evidence at the trial, with the information as to when, where and to whom such oral confession or statement was made.”

Defendant contends that he is entitled to the information under part A. of the above article while the State contends the contents of the statements are excluded under part B. The State’s interpretation of the article is the correct one.

LSA-C.Cr.P. art. 723 states:

“Except as provided in Articles 716, 718, 721, and 722, this Chapter does not authorize the discovery or inspection of reports, memoranda or other internal state documents made by the district attorney or by agents of the state in connection with the investigation or prosecution of the case; or of statements made by witnesses or prospective witnesses, other than the defendant, to the district attorney, or to agents of the state.”

Under LSA-C.Cr.P. arts. 716(B) and 723 the information sought is not subject to discovery by defendant. Defendant is not entitled to obtain the contents of an oral statement made by him to a private citizen, when the evidence is not of an exculpatory nature. See State v. Sheppard, 350 So.2d 615 (La., 1977). The trial court erred insofar as it ordered the State to reveal to defendant the contents of any oral inculpa-tory statements made by him to Evan Butler.

The ruling of the trial court is vacated insofar as it ordered the State to reveal to defendant the contents of any oral inculpa-tory statements made by defendant, and the matter is remanded for further proceedings.

ORDER VACATED: CASE REMANDED.

      . See, for example, the comment at 74 Yale Law Journal 136.

      . Its use at trial would require an affirmative showing by the State that the statement was free and voluntary. State v. Glover, 343 So.2d 118 (La., 1977).


author:
BLANCHE, Justice.
     STONE, J. Ad Hoc, DENNIS, Justice,

text:
    STATE of Louisiana v. Lonnie E. SOLOMON.
    No. 65230.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    Robert Führer, Franklin, Indigent Defender Board, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Walter J. Senette, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   BLANCHE, Justice.

The defendant, Lonnie Solomon, was charged in district court with simple burglary of a vehicle in violation of R.S. 14:62. He filed a motion to quash the bill of information on the basis of double jeopardy. Defendant contended prosecution for burglary of the vehicle constitutes double jeopardy because he had been previously convicted of theft of a watch from the same vehicle. The court denied the motion and defendant plead guilty to the charge reserving his right to appeal on the double jeopardy issue.

Two Franklin City Police officers arrested defendant after they found him inside an automobile owned by one of them. After a search at the police station, the officers found a watch, which had been in the car’s glove compartment, in defendant’s pocket. The tape player in the car was also allegedly tampered with. Defendant was charged in district court with simple burglary, theft and carrying a concealed weapon. The charges were nolle prosequied and referred to the City Court of Franklin. In city court, defendant plead guilty to theft and carrying a concealed weapon, and was sentenced to thirty days in parish prison on each charge. He was subsequently charged in district court with simple burglary. It is the burglary charge which defendant claims places him in double jeopardy for the same offense.

Initially, we note that a prosecution in a state court on the same offense as defendant was convicted of in a municipal court constitutes double jeopardy. Waller v. Fla., 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970).

Both the Louisiana and the United States Constitutions provide that no person shall be twice put in jeopardy of life or liberty for the same offense. U.S.Const. amend. 5; La.Const. art. 1, sec. 15 (1974). Article 596 of the Louisiana Code of Criminal Procedure states that double jeopardy exists in a second trial only when the charge in that trial is:

(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial, (emphasis added)

Thus, defendant submits for our review whether the burglary charge and theft conviction are the “same offense” for double jeopardy purposes.

This Court has adopted the “same evidence” test to determine the identity of offenses. This test holds that two offenses are the same for double jeopardy purposes if the same evidence is required for the conviction of each offense. If one offense requires proof of additional facts which the other does not, then the accused may be tried and convicted on both offenses unless the gravamen of the second offense is essentially included within the offense for which first tried, in which case the second prosecution is barred because of former jeopardy. State v. Nichols, 337 So.2d 1074 (La.1976); State v. Didier, 262 La. 364, 263 So.2d 322 (1972).

In applying this test, we have stated that double jeopardy exists when the two charges arise from identical conduct. State v. Bonfanti, 262 La. 153, 262 So.2d 504 (1972); State v. Didier, supra. Thus, simple battery and indecent behavior with juveniles were the same offense for double jeopardy purposes where both charges were based upon the defendant’s putting his hands up the prosecutrix’s dress, State v. Bonfanti, supra. Similarly, malfeasance in office and a charge of robbery and theft as a principal were treated as the same offense where the defendant’s malfeasance consisted of his aiding and abetting the robbery-theft by failing to prevent it, to apprehend the participants, or to report the crime. State v. Didier, supra.

Because the defendant plead guilty to the burglary charge, there is no trial transcript to review in order to determine whether evidence in the theft trial would be the “same evidence” to prove the burglary charge. We do have the testimony from the motion to quash which may be utilized for this purpose. Testimony of the arresting officers at the trial of the motion to quash set forth the facts on which the simple burglary charge was based. Their testimony establishes that the burglary and theft charges deal with the same incident of defendant entering Officer Bourgeois’ vehicle on the night of November 28, 1978. Therefore, it can be determined that the exact same evidence is not required for a conviction of the defendant on both the burglary and theft charges because a conviction of burglary requires the additional proof of an unauthorized entry with the intent to commit a felony or any theft therein. R.S. 14:62. Furthermore, the two charges are not based on the exact same conduct as was the case in Bonfanti & Didier, supra. The crime of burglary was completed upon entry into the car with the intent to commit the theft therein, whereas the theft did not occur until the defendant actually took the watch from the glove compartment. This distinction makes it clear that burglary of the automobile and the theft of the watch were two separate and distinct offenses and therefore, the conviction of one would not bar a conviction of the other on the grounds that the defendant would be placed twice in jeopardy for the same offense.

For these reasons, the judgment of the court dismissing defendant’s motion to quash the bill of information is affirmed.

CONVICTION AND SENTENCE AFFIRMED.

DENNIS, J., concurs with reasons.

STONE, J. Ad Hoc,

dissents, being of the opinion that the prosecution for both theft and burglary violates the double jeopardy clause.

DENNIS, Justice,

concurring.

I respectfully concur in the result reached in the majority opinion and find it consistent with the rationale employed by the Supreme Court in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). In that case the Court held:

“ ‘The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not . . . 432 U.S. at 166, 97 S.Ct. at 2225.

Applying the rule of Brown v. Ohio (sometimes called the “distinct fact test” or the “Blockburger test” see Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)) to the present case, it is clear that there has not been multiple punishment for the same offense. The two offenses in this case are separate because each offense requires proof of an additional fact which the other does not. The evidence actually introduced which would have been required to support a conviction of burglary would not have been sufficient to warrant the conviction of theft. Nor would the evidence required to prove the theft have been sufficient to warrant a conviction of burglary.

       Honorable Jesse N. Stone, Jr. served as Justice Ad Hoc in the vacancy created by the resignation of Tate, J.


author: MARCUS, Justice. DENNIS, Justice,

text:
    Succession of Edward G. KOCH.
    No. 65242.
    Supreme Court of Louisiana.
    Jan. 28, 1980.

      Maurice G. Indest, Edward G. Koch, Jr., New Orleans, for applicant Edward G. Koch, Jr.
    Fernand F. Willoz, III, New Orleans, for Martin R. Koch, respondent.
   MARCUS, Justice.

Edward G. Koch, Jr. appealed a judgment of the district court setting aside his appointment as sole administrator of the succession of his father, Edward G. Koch, and naming his brother, Martin R. Koch, and him as co-administrators of the estate. The court of appeal affirmed. Upon Edward’s application, we granted certiorari to review the correctness of this decision.

Edward G. Koch died intestate on May 22, 1978 and was survived by two sons, Martin R. Koch and Edward G. Koch, Jr. On June 1, 1978, Martin filed a petition in the district court pursuant to La.Code Civ.P. art. 3091, requesting notification of the filing of an application for appointment as administrator. When a petition for such notice has been filed within ten days of the death of the decedent, or prior to the application for appointment as administrator, the applicant for appointment is required by art. 3091 to serve notice prayed for, as provided in art. 3093. Failure to give such notice subjects the succession representative to the penalty of removal from office. La.Code Civ.P. art. 3182. Likewise, La. Code Civ.P. art. 3181 provides that, if a person appointed as succession representative failed to qualify for his office within ten days of his appointment, on its own motion, or on motion of any interested person, the court may revoke the appointment and appoint another qualified person to the office “forthwith.”

On June 2, 1978, Martin petitioned to be appointed administrator, and the court signed an order directing letters of administration issue to him on complying with the requisites of law. Martin failed to qualify for office within ten days after his appointment as required by art. 3181. On June 13, 1978 (the day following the ten-day qualifying period), Edward filed a motion to revoke the appointment of Martin and to appoint himself in Martin’s stead. The court, in an ex parte order, revoked the appointment of Martin as administrator for his failure to qualify within ten days after his appointment and appointed Edward, who immediately qualified for the office. Letters of administration were issued the next day. On June 16, 1978, Martin filed a motion requesting that the court order Edward to show cause why he should not be removed from office on the ground, inter alia, that Edward had failed to give notice of his application for appointment as administrator as required by art. 3093 and why Martin should not be reappointed administrator and have letters issued to him upon complying with the requisites of law. After a hearing, the court ordered that both Edward and Martin be appointed co-administrators. It is from this order that Edward appealed.

At the outset, we must dispose of Martin’s “motion to dismiss appeal” filed in this court in which he contends that Edward has acquiesced in the judgment rendered against him by complying with the order of the trial court appointing Edward and Martin as joint administrators. Attached to his motion to dismiss are copies of various petitions filed in the succession proceedings jointly by Edward and Martin as co-administrators for authority to take certain actions in connection with the administration of the succession.

La.Code Civ.P. art. 2085 provides that an appeal cannot be taken by a party who voluntarily and unconditionally acquiesced in a judgment rendered against him. However, La.Code Civ.P. art. 2974 provides that “an order or judgment confirming, appointing, or removing a succession representative . . . shall be executed provisionally, notwithstanding appeal.” See also La.Code Civ.P. art. 2122 which provides that an order of a trial court “appointing or removing a legal representative shall be executed provisionally notwithstanding an appeal therefrom.” Consequently, during the appeal of the trial court’s order appointing Edward and Martin as co-administrators, that order “shall be executed.” Edward and Martin must provisionally administer the succession notwithstanding the appeal. Hence, we cannot say Edward voluntarily and unconditionally acquiesced in the judgment rendered against him. Accordingly, the motion to dismiss-is denied.

We now proceed to consider the merits of Edward’s appeal. Article 3181 authorizes the court to revoke the appointment of a person who does not qualify for office within ten days after his appointment and to appoint another qualified person to office “forthwith.” The question presented is whether the trial court, after revoking Martin’s appointment as administrator for his failure to qualify for office within ten days after his appointment, properly appointed Edward to the office when Martin had requested notice pursuant to art. 3091. We think not. While art. 3181 authorizes the appointment of another qualified person “forthwith,” it must be done in accordance with law. Therefore, the order appointing Edward as administrator was improper because of Edward’s failure to give notice of his application for appointment to Martin as required by art. 3091; however, we do not consider the order invalid. Article 3182 provides that one of the grounds for removal of a succession representative is failure to give notice of his application for appointment when required under art. 3093. Furthermore, comment (e) to art. 3091 provides:

The sanction for the enforcement of the [notice requirement] is the possibility of the removal of an administrator who fails to give notice of the filing of his application for appointment when required to do so, under the provisions of Art. 3182 ....

See also comment (b) to art. 3093 which states: “The penalty for failure to give the required notice is the removal of the administrator.” Additionally, art. 3182 provides that the removal of a succession representative from office does not invalidate any of his official acts performed prior to his removal. These articles and comments thereto convince us that the order appointing Edward as administrator, even though improper, is valid and has effect until Edward’s removal from office.

The proper procedure for removal of a succession representative who, among other grounds, “has failed to give notice of his application for appointment when required under Article 3093” is by a rule to show cause. La.Code Civ.P. art. 3182. In the instant case, Martin filed such a contradictory motion. No evidence was adduced at the hearing. Nonetheless, the trial judge removed Edward as sole administrator and named Martin and Edward as co-administrators. While the trial judge is accorded much discretion in rendering such orders, the record does not support the removal of Edward as sole administrator simply on his failure to give Martin notice of his application for appointment under the circumstances herein where Martin himself had already been appointed but neither qualified nor asked for an extension of time to qualify. Alternatively, Martin argues that his motion asserted other grounds for removal not considered by the trial court and therefore the case should be remanded to permit him to present evidence in support of these contentions. We agree. Accordingly, we will reverse and set aside the ruling of the trial court revoking the appointment of Edward as sole administrator and naming Martin and Edward as co-administrators and remand the case to the trial court for an evidentiary hearing on Martin’s motion to remove Edward as administrator of the succession.

DECREE

For the reasons assigned, the judgment of the court of appeal, affirming the ruling of the trial court setting aside the appointment of Edward G. Koch, Jr. as the sole administrator of the succession of Edward G. Koch and naming Edward G. Koch, Jr. and Martin R. Koch as co-administrators of the estate is reversed and the case is remanded to the district court for further proceedings consistent with the views herein expressed.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent. The trial court correctly appointed Edward Koch, Jr. under its authority to appoint another succession representative “forthwith.” La.C.C.P. art. 3181. See the dissenting opinion of Judge Redmann in the court of appeal. 372 So.2d 741 (La.App. 4th Cir. 1979).

      . 372 So.2d 740 (La.App. 4th Cir. 1979).

      . 375 So.2d 659 (La.1979).

      . La.Code Civ.P. art. 3091 provides:
      An interested person desiring to be notified of the filing of an application for appointment as administrator, at any time after the death of the deceased, may petition the court in which the succession has been opened, or may be opened, for such notice.
      A petition for such notice shall comply with Article 3092, shall bear the number and caption of the succession proceeding, and shall be docketed and filed by the clerk in the record thereof.
      When a petition for such notice has been filed within ten days of the death of the deceased, or prior to the application for appointment as administrator, the applicant for appointment shall serve the notice prayed for, as provided in Article 3093.

      . La.Code Civ.P. art. 3093 provides:
      When notice has been petitioned for as provided in Article 3091, the applicant for appointment as administrator shall mail or deliver to the person designated to receive such notice a copy of his application for appointment, and shall notify him of the date and hour assigned by the court for a hearing thereon.

      . La.Code Civ.P. art. 3182 provides:
      The court may remove any succession representative who is or has become disqualified, has become incapable of discharging the duties of his office, has mismanaged the estate, has failed to perform any duty imposed by law or by order of court, has ceased to be a domiciliary of the state without appointing an agent as provided in Article 3097(4), or has failed to give notice of his application for appointment when required under Article 3093.
      The court on its own motion may, and on motion of any interested party shall, order the succession representative sought to be removed to show cause why he should not be removed from office. The removal of a succession representative from office does not invalidate any of his official acts performed prior to his removal.

      .La.Code Civ.P. art. 3181 provides:
      If a person appointed or confirmed as succession representative fails to qualify for the office within ten days after his appointment or confirmation, on its own motion or on motion of any interested person, the court may revoke the appointment or confirmation, and appoint another qualified person to the office forthwith.
      The delay allowed herein for qualification may be extended by the court for good cause shown.

      . As authority for dismissal of the appeal, Martin cites Succession of Landman, 142 La. 253, 76 So. 704 (1917), in which this court dismissed an appeal upon similar facts and procedural law as herein. We consider Landman to have been incorrectly decided. Accordingly, to the extent that it is inconsistent with this opinion, Landman is overruled.


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

text:
    STATE of Louisiana v. Larry RODRIGUEZ.
    No. 65323.
    Supreme Court of Louisiana.
    Jan. 28, 1980.

      Clyde D. Merritt, Tilden, Greenbaum, Alvin Johnson, Orleans Indigent Defender Program, New Orleans, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Julie C. LeBlanc, Louise Korns, Asst. Dist. Attys., for plaintiff-relator.
   DIXON, Justice.

On June 4, 1979 defendant was arrested and charged by bill of information with a violation of R.S. 40:967, possession of pentazocine (Talwin), a controlled dangerous substance. Defendant filed a motion to quash the bill on the grounds that R.S. 40:962(B) was invalid as an unconstitutional delegation of legislative authority to the executive branch of the state government and that sufficient notice was not given defendant of the conduct prescribed, thus depriving him of due process of law. The trial judge granted defendant’s motion to quash and the state’s application for a writ of certiora-ri was granted.

R.S. 40:962(B) provides:

“The secretary of the Department of Health and Human Resources shall add a substance as a controlled dangerous substance if it is classified as a controlled dangerous substance by the Drug Enforcement Administration of the United States government.”

Talwin was classified as a controlled dangerous substance by the Drug Enforcement Administration of the United ■ States on February 9,1979 and was then added to the Louisiana list of controlled dangerous substances on February 14, 1979 pursuant to R.S. 40:962(B). A bill was introduced into the 1979 Louisiana legislature to affirm this action. The legislature passed Act 659 adding Talwin to the list of controlled dangerous substances. The effective date of this legislation was September 7, 1979. The question to be decided is whether the legislature exceeded its authority in delegating to the Secretary of the Department of Health and Human Resources the authority to proceed as it did under R.S. 40:962(B).

Article II, § 1 of the 1974 Louisiana Constitution divides the powers of government into three separate branches: legislative, executive and judicial. Article II, § 2 provides that no one of these branches may exercise power belonging to either of the others. The legislative power of the state is vested exclusively in the elected legislature. Article III, § 1. The executive branch of the government consists of all executive offices, agencies and instrumen-talities of the state. Article IV, § 1. The Department of Health and Human Resources is an agency and is therefore a part of the executive branch of the government.

R.S. 14:7 provides that a crime in Louisiana is that conduct which is defined as criminal in the Criminal Code, or in other acts of the legislature, or in the Constitution of this state. It is well settled in Louisiana jurisprudence that the determination and definition of acts which are punishable as crimes are purely legislative functions. State v. Gyles, 313 So.2d 799 (La.1975); State v. Vaccaro, 200 La. 475, 8 So.2d 299 (1942). Another equally well established rule is that the legislative power to create and define offenses cannot be delegated. In City of Shreveport v. Price, 142 La. 936, 946, 77 So. 883, 886 (1918), this court held: “The general rule is that the legislative power cannot be delegated.” An exception to that rule was recognized by the United States Supreme Court in United States v. Shreveport Grain and Elevator Co., 287 U.S. 77, 53 S.Ct. 42, 77 L.Ed. 175 (1932), where the court held that although the legislative power of Congress cannot be delegated, Congress may declare its will, and, after fixing a primary standard, devolve upon administrative officers the power to “fill up the details” by prescribing administrative rules and regulations. The Louisiana Supreme Court recognized the same exception in State v. Guidry, 142 La. 422, 76 So. 843 (1917), where the court held that the legislative branch has the authority to delegate to administrative boards and agencies of the state the power to ascertain and determine the facts upon which the laws are to be applied and enforced.

In determining whether a particular delegation of legislative authority is unconstitutional this court has relied on the rule established in the case of Schwegmann Brothers Giant Super Markets v. McCrory, Commissioner of Agriculture, 237 La. 768, 788, 112 So.2d 606, 613 (1959):

“ . . .So long as the regulation or action of the official or board authorized by statute does not in effect determine what the law shall be, or involve the exercise of primary and independent discretion, but only determines within prescribed limits some fact upon which the law by its own terms operates, such regulation is administrative and not legislative in its nature. . . . ”

This rule requires that the legislature establish by statute standards for the guidance of the executive or administrative body or officer empowered to execute the law. This principle is implicit in the general rule prohibiting the delegation of legislative authority, and is affirmed in numerous cases decided by this court. See State v. Morgan, 238 La. 829, 116 So.2d 682 (1960); National Bank of Commerce v. Louisiana State University, 206 La. 913, 20 So.2d 264 (1944); City of Baton Rouge v. Shilg, 198 La. 994, 5 So.2d 312 (1941). In these cases this court stated that where a statute vests arbitrary discretion in a board or an official without prescribing standards of guidance there is an unconstitutional delegation of legislative authority to the executive branch of the government.

The state contends that the action taken by the Secretary of the Department of Health and Human Resources was mandated, and not merely permitted, by the legislature, and thus did not amount to action taken under a delegation of authority, but rather an action required by the legislature once the Drug Enforcement Administration placed the substance on their list. R.S. 40:962(B) sets up a scheme whereupon the secretary has the authority to add a substance to the Louisiana list of controlled dangerous substances, and once a substance is so listed it becomes a crime to possess or distribute the substance. In this section of the statute there are no standards or criteria to guide the secretary, who merely adds to the contraband list the substances found dangerous by the federal agency. (In contrast, see R.S. 40:962(C)). The absence of standards for the secretary to determine the characteristics of the new dangerous substances results in a surrender of legislative power. The legislature may confer ministerial powers upon executive agencies if it supplies adequate standards to execute the legislative policy; however it cannot surrender the legislative power itself to determine what the law shall be.

This prohibition against delegating the power to create crimes applies not only to a delegation to a state agency, such as the Department of Health and Human Resources, but to any other agency or body, such as the Drug Enforcement Administration. The Louisiana legislature is not authorized to delegate its legislative power to a federal agency, nor to Congress. Congress has established, in 21 U.S.C. § 811, standards under which the Attorney General (transferred to the Drug Enforcement Administration, 38 Fed.Reg. 18357 (1973)) and the Secretary of Health, Education and Welfare may act in adding new contraband drugs. Even though the Drug Enforcement Administration is governed by such congressional standards, Louisiana cannot delegate to it the power to make the possession of certain drugs a crime.

R.S. 40:962(B) is therefore unconstitutional.

The judgment of the district court quashing the indictment against the defendant is affirmed, and the prosecution is dismissed.

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

MARCUS, Justice

(dissenting).

La.R.S. 40:962(B) makes it mandatory for the Department of Health and Human Resources to add a substance as a controlled dangerous substance if it is classified as such by the Drug Enforcement Administration. In effect, the legislature has adopted the standards established by Congress by which the federal agency (DEA) is governed in classifying a new contraband drug and then makes it mandatory for the Department of Health and Human Resources to add the substance to its list when DEA has classified the substance as a controlled dangerous substance. I do not consider this to be an improper delegation of legislative authority. Accordingly, I respectfully dissent.

BLANCHE, Justice

(dissenting).

I respectfully dissent. The legislature may not delegate purely legislative power, but it may with certain qualifications, delegate to an administrative agency the authority necessary to implement the expressed policy and purpose of a given statute. State v. Edwards, 572 S.W.2d 917 (Tenn.1978); Cf. American Power Co. v. S. E. C., 329 U.S. 90, 67 S.Ct. 133, 91 L.Ed. 103 (1946); Currin v. Wallace, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441 (1939). I agree that “the legislature in doing so must establish by statute standards for the guidance of the executive/administrative body or officer empowered to execute the law”. I find, however, that the statute in question does provide sufficient guidelines and standards to prevent arbitrary action by the agency. The exercise of discretion is not with the agency, since in this particular section, the Department of Health and Human Resources is mandated to act once it receives information that a drug is classified as a controlled dangerous substance by the Drug Enforcement Administration of the U.S. Government. Thus, their placing of the drug on the controlled substance list was a purely ministerial function meant to implement a policy decision already made by the legislature. Therefore, this statute does not delegate the authority to define crimes; rather, it is a delegation of authority to find facts/determine the existence of a factual situation on which the operation of a law is made dependent. State v. Blackburn, 21 N.C.App. 517, 204 S.E.2d 866 (1974).

Our statute is patterned after the Uniform Controlled Substances Act which has been adopted by 46 states, the Virgin Islands and Puerto Rico. The majority of these jurisdictions have held that the Act is not an unconstitutional delegation of legislative power. See People v. Uriel, 76 Mich. App. 102, 255 N.W.2d 788 (1977); People v. Einhorn, 75 Misc.2d 183, 346 N.Y.S.2d 986 (1973); State v. Lisk, 21 N.C.App. 474, 204 S.E.2d 868 (1974); Cassell v. State, 55 Ala. App. 502, 317 So.2d 348 (Cr.App.1975).

      . For cases where this court has held that the legislature improperly delegated the authority to create offenses to the executive branch of the government, see State v. Maitrejean, 193 La. 824, 192 So. 361 (1939); State v. Billot, 154 La. 402, 97 So. 589 (1923).
      This court has held that the legislature improperly delegated the authority to define crimes to the courts in State v. Arkansas Louisiana Gas Co., 227 La. 179, 78 So.2d 825 (1955); State v. Truby, 211 La. 178, 29 So.2d 758 (1947); State v. Whitlock, 193 La. 1044, 192 So. 697 (1939); State v. Gaster, 45 La.Ann. 636, 12 So. 739 (1893).
      See City of Alexandria v. Alexandria Fire Fighters Ass'n, 220 La. 754, 57 So.2d 673 (1952);
        State v. Watkins, 176 La. 837, 147 So. 8 (1933) for cases in which the legislative power to change the law was held to have been improperly delegated to the people of this state.

      . The court in Guidry held that a statute delegating to the conservation commission the authority to determine whether certain areas contained natural oyster reefs, as defined in another statute, was not a delegation of a legislative function. For another example of a proper delegation to the conservation commission, see State v. Carson Carbon Co., 162 La. 781, 111 So. 162 (1927).

      . For other cases where this court has held that the delegation of authority was ministerial in nature and not legislative, and therefore proper, see State ex rel. Guste v. Legislative Budget Committee, 347 So.2d 160 (La.1977); State v. Everfield, 342 So.2d 648 (La.1977); Carso v. Board of Liquidation of State Debt, 205 La. 368, 17 So.2d 358 (1944); Fernandez v. Alford, 203 La. 111, 13 So.2d 483 (1943).
      For examples of delegations of legislative authority to administrative boards which have been upheld as within the police power of the. state, see Johnson v. Pearce, 313 So.2d 812 (La.1975); City of Lake Charles v. Wallace, 247 La. 285, 170 So.2d 654 (1965); Baton Rouge Waterworks Co. v. Louisiana Public Service Commission, 156 La. 539, 100 So. 710 (1924); State v. Syas, 136 La. 628, 67 So. 522 (1915); State v. Snyder, 131 La. 145, 59 So. 44 (1912); State v. Harper, 42 La.Ann. 312, 7 So. 446 (1890).

      . The federal statute delegates similar powers to the Attorney General to add to the federal controlled dangerous drug schedules. However, it allows the Attorney General to add a substance to the list only after he has made certain findings listed in the statute and has complied with the Administrative Procedure Act. (5 U.S.C. § 551 et seq.). The Attorney General, before acting, must receive from the Secretary of Health, Education and Welfare a scientific and medical evaluation and recommendation whether a drug should be controlled. In determining whether to control a particular substance, both the Secretary of Health, Education and Welfare and the Attorney General must consider certain criteria provided in the statute.
      The federal scheme has been upheld in United States v. Gordon, 580 F.2d 827 (5th Cir. 1978) and in United States v. Pastor, 557 F.2d 930 (2 Cir. 1977), as being a proper delegation of authority because the statute contains sufficient guidelines and standards because of the factors which must be considered before a drug can be controlled, and because of the protections of the Administrative Procedure Act. R.S. 40:962(B) provides no such standards or protections which are found in the federal act, nor in R.S. 40:962(C).

      . In Howell v. Mississippi, 300 So.2d 774 (1974), the Mississippi Supreme Court held unconstitutional a portion of a state statute which had permitted the State Board of Health to schedule substances, administratively, much as the Secretary of Health and Human Resources does under R.S. 40:962(B). The Mississippi court held that the attempted delegation to the State Board of Health was contrary to the Mississippi Constitution, which prohibited any one of the three departments of the state government from exercising any power belonging to the other departments.