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

text:
    DAIGLE & ASSOCIATES, INC. v. Sylvia S. COLEMAN et al.
    Nos. 80-C-1555, 80-C-1556.
    Supreme Court of Louisiana.
    April 6, 1981.

      Chapman L. Sanford, Cangelosi & Sanford, Baton Rouge, for plaintiff-applicant and for plaintiffs-respondents.
    Robert Kleinpeter, of Kleinpeter, Klein-peter & Kleinpeter, Sanders Cazedessus, Baton Rouge, for defendants-respondents and for plaintiffs-respondents.
    Robert E. Tillery, Baton Rouge, for defendants-respondents and in pro. per.
   DENNIS, Justice.

This concursus proceeding was initiated when Daigle & Associates, Inc., a real estate broker, deposited in the trial court’s registry $5000 it had received as earnest money in connection with the aborted sale of property, impleaded the parties to the unperformed contract to sell and required them to assert their respective claims to the fund contradictorily. The parties are the owners of the property, Mr. and Mrs. Bernard Watson, Jr., the proposed purchaser, Mrs. Sylvia Coleman, and the purchaser’s attorney in fact, Mr. Robert E. Tillery, who signed the alleged contract to sell for Mrs. Coleman. The trial court found that the proposed purchaser, Mrs. Coleman, had breached a valid contract by refusing to go through with the sale and awarded the $5000 deposit to the owners, Mr. and Mrs. Watson. The court of appeal reversed, finding that the contract to sell was invalid because the general power of attorney signed by the proposed purchaser did not grant her attorney in fact power to buy or sell immovables. 385 So.2d 349 (La.App. 1st Cir. 1980).

We granted certiorari because the court of appeal failed to reform the power of attorney to conform to the parties’ intentions although it found from the testimony that the prospective purchaser had intended to include authority to purchase the property in the power of attorney. Under our longstanding jurisprudence parol is admissible when there are allegations of fraud, error, or mistake, to show that the instrument is not the expression of the actual intention of the parties. E. g., Gulf States Finance Corp. v. Airline Auto Sales, Inc., 248 La. 591, 181 So.2d 36 (1965).

Upon our review of the evidence, however, we find that the result reached by the court of appeal is correct because its factual finding as to the proposed purchaser’s intention was in error. Mrs. Coleman testified without contradiction that at the time she executed the power of attorney she only intended to grant authority to enter a contract giving her an option to purchase, not one obliging her to buy the property. She also testified that she understood the agreement her attorney in fact signed for her with the Watsons to contain an option to purchase, not to amount to a binding contract to purchase. Her attorney in fact testified that she orally agreed by telephone for him to execute a contract to purchase some ten days after the written power of attorney was executed. Other witnesses testified that she made statements after the power of attorney was signed to the effect that she intended to purchase the property. However, none of the witnesses testified that Mrs. Coleman intended to authorize her attorney in fact to obligate her to buy the property at the time she signed the power of attorney. Her intention to authorize her attorney in fact to enter a contract to purchase the property at the time she signed the power, rather than to secure an option to purchase, contrary to the terms of the written power of attorney, simply does not appear in the record.

We reject also relators’ contention that Mrs. Coleman, in accordance with Civil Code Article 2275, verbally ratified by her testimony in this case her agent’s transaction. Her testimony cannot be characterized as a ratification of the contract to sell, because she never conceded an intention to be obliged to purchase the property. She testified consistently that she merely intended to authorize her agent to obtain an option to buy the property. Accordingly, we pretermit the hypothetical question of whether Mrs. Coleman could have ratified her agent’s transaction if her testimony had been different.

The Court of Appeal correctly rejected Tillery’s claim as moot.

For the reasons assigned, the Court , of Appeal judgment is affirmed.

AFFIRMED.

MARCUS, Justice

(dissenting).

An agent’s authority to purchase immovable property must be express and special and in writing. In the instant case, Tillery did not have express and special authority to purchase the immovable property in question. He had only a general power of attorney in writing. A principal may ratify the unauthorized actions of his agent. Where the authorization was in writing (general power of attorney), the principal may subsequently ratify a written agreement to purchase executed by the agent on his behalf by means other than in writing. I consider that Mrs. Coleman clearly did so by landscaping and painting the house without prior approval of the prospective sellers (Watsons) and by telling a furniture supplier that she had signed a purchase agreement to buy the house and that she desired him to help her furnish and decorate the house. Accordingly, I consider that Mrs. Coleman actively breached the contract when she refused to buy the property in question in accordance with the purchase agreement signed by her agent on her behalf. The trial judge was correct in awarding the |5,000 to the Watsons as liquidated damages. Accordingly, I respectfully dissent.

BLANCHE, Justice

(concurring).

I concur, but take the liberty of making the following observation.

Given the facts that Mrs. Coleman moved into the house, made arrangements about landscaping, repainted several rooms and ordered some $150,000 of furniture for the house, I am sorely tempted to say that she has expressly ratified the actions of her agent. C.C. art. 3021.

However, every transfer of immovable property must be in writing, unless there is a judicial confession as to the verbal sale. C.C. art. 2275. Here, the writing was improperly performed as her agent only had a general power of attorney and, thus, he could not commit her to an act of ownership, for that power must be express. C.C. art. 2996. Nor was a judicial confession made as Mrs. Coleman steadfastly insisted she merely intended for her agent to obtain an option to buy the property, not to oblige her to purchase it.

Our strong codal policy of dealing with immovable property transfers in writing leads me to believe that Mrs. Coleman could only have expressly ratified her agent’s action by meeting the requirements of art. 2275. Since the ratification was neither in writing nor judicially confessed, in spite of these strong facts, I do not believe she has expressly ratified her agent’s actions in accordance with law.

LEMMON, Justice,

dissenting.

I dissent for the reasons assigned by MARCUS, J.


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Rickie J. JONES.
    No. 80-K-1688.
    Supreme Court of Louisiana.
    April 6, 1981.

      Milton P. Masinter, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., Louise S. Korns and David Plavnicky, Asst. Dist. Attys., for plaintiff-respondent.
   DENNIS, Justice.

The principal issue in this case is whether the trial judge erred in ordering separate trials of offenses when the prosecution moved for severance merely to defeat defendant’s request for a jury trial and failed to show how it was prejudiced by a joinder of the offenses. We reverse the defendant’s conviction and sentence. The trial court may sever properly joined offenses only upon a showing that a defendant or the state is prejudiced by the joinder. La.C.Cr.P. art. 495.1.

Defendant was charged in a single bill of information with negligently injuring Lawrence Robert in violation of La.R.S. 14:39 and with resisting arrest in violation of La.R.S. 14:108. On the day of the trial, the state moved to sever the two counts. Over defendant’s objection, the trial judge granted the motion. The defendant was convicted on the negligent injuring charge following a bench trial and was sentenced to six months’ imprisonment, execution of which was suspended on the condition that the defendant make restitution to the victim in the amount of $3000. Additionally, the defendant was placed on two yéars’ active probation. Subsequently, the defendant entered a conditional guilty plea to the resisting arrest charge. After a motion for a new trial was denied, the defendant appealed to the Appellate Division of the Orleans Criminal District Court which affirmed his conviction by a vote of two to two. We granted defendant’s petition to review the denial of his right to a jury trial.

The charges result from an automobile accident which occurred about 1:00 a. m. on January 26,1979. The defendant, accompanied by a friend, was driving a pick-up truck eastward on Haynes Boulevard in New Orleans. Near the intersection of Haynes and Flounder Road, the defendant’s vehicle slammed into the rear of a car driven by Lawrence Robert, an off-duty police officer, causing the officer’s car to swerve into a nearby telephone pole. Robert and his passenger, Robin Vance, an off-duty female police officer, were seriously injured. Robert’s vehicle was heavily damaged. The defendant did not stop after the collision, but continued to his nearby home. Investigating officers located the defendant’s truck later that morning by following a trail of oil and engine coolant from the scene of the accident to the defendant’s home.

A defendant has a right to a jury trial when two or more “petty” offenses are joined for trial if the aggregate punishment to which the defendant is exposed in the case exceeds either six months’ imprisonment or fines totalling five hundred dollars. La.Const. Art. I, § 17; La.C.Cr.P. art. 779; State v. Nettleton, 367 So.2d 755 (La.1979); State v. McCarroll, 337 So.2d 475 (La.1976). Furthermore, a defendant may not be deprived of his right to a jury trial through the expedient of a trial judge’s guarantee of a sentence of six months or less in the event of conviction. State v. Grimble, 397 So.2d 1254 (La.1981). The legislative determination of a case’s seriousness entitles an accused to a jury trial, not the possibly arbitrary decision of a trial court. State v. Grimble, supra.

In the instant case, the defendant was charged in a single bill of information with negligent injuring and resisting arrest. He was thus exposed to a maximum penalty of one year imprisonment and a $1000 fine and was entitled to a trial by jury. State v. Grimble, supra; State v. McCarroll, supra. At the outset of the trial, the prosecuting attorney announced that if the defendant insisted upon a jury trial, he would move to sever the two counts. He also stated that he was prepared to try all counts. The defense attorney objected to the severance and stated that his client did not wish to waive his right to a jury trial. The judge overruled the defendant’s objection and severed the offenses.

Article 495.1 of the Louisiana Code of Criminal Procedure provides that the court may grant a severance of offenses if it appears that a defendant or the state is prejudiced by the joinder. Prejudice in this context means detriment to one’s legal rights or claims. Mere inconvenience or loss of strategic advantage caused by a jury trial does not constitute prejudice. Since the state’s motion to sever was prompted by nothing other than its desire to avoid a jury trial, the severance should not have been granted.

Article 495.1, as amended in 1978, essentially tracks the language of Rule 14 of the Federal Rules of Criminal Procedure. 1978 Louisiana Acts, No. 466, § 1. See, Joseph, The Work of the Louisiana Appellate Courts for the 1977-1978 Term—Criminal Trial Procedure and Postconviction Procedure, 39 La.L.Rev. 933, 936-38 (1978); Legislative Symposium, Criminal Procedure, 39 La.L.Rev. 262-64 (1978). Since both our joinder and severance provisions are now based upon the federal rules, federal jurisprudence and doctrinal writings construing and applying those rules offer us instructive assistance in this area. State v. McZeal, 352 So.2d 592, 694 (La.1977). See Comment, Joinder of Offenses: Louisiana’s New Approach in Historical Perspective, 37 La.L.Rev. 203 (1976).

In United States v. Cappello, .209 F.Supp. 959 (E.D.N.Y.1962), the trial judge denied the government’s motion to sever certain counts of the indictment that alleged offenses arising out of the same transactions as those included in the other counts. The court ruled that a strong showing of prejudice by the government was necessary to allow it to sever offenses it had knowingly joined originally. United States v. Cappello, supra, at 960. The Cap-pello court held that the government’s lack of preparedness on some counts did not override the defendant’s interest in a speedy trial on all offenses arising out of the same act or transaction. See, United States v. Zim Israel Navigation Co., 239 F.Supp. 446 (S.D.N.Y.1965) (government’s request for severance of defendants denied). See also, 8 Moore’s Federal Practice § 1405 (1980). Of course, when the prosecution’s interest in a severance is found an appropriate pursuit of a legitimate purpose, the motion is properly granted if defendant’s interests are outweighed. See, e. g., United States v. Rubin, 609 F.2d 51, 65 (2d Cir. 1979); Garris v. United States, 418 F.2d 467 (D.C.Cir.1969); United States v. Grullon, 482 F.Supp. 429 (E.D.Pa.1979).

In the present case, however, the prosecution was prepared to try all counts consecutively and made no strong showing of prejudice. The negligent injuring count and the resisting arrest count arose out of the same series of transactions and were both factually and legally interrelated. The charges were properly joined and were severed only in an attempt to avoid the inconvenience of impanelling a jury. Depriving a defendant of a right to jury trial is not a legitimate prosecutorial end. Any added inconvenience entailed in a jury trial does not constitute prejudice within the meaning of Article 495.1.

Because the trial court exceeded its authority in granting the state’s motion to sever, we reverse the defendant’s convictions and sentences, rejoin the offenses for trial by a jury, and remand the case for further proceedings.

REVERSED AND REMANDED.

CHIASSON and COVINGTON, JJ., concur.

      Judges Grover L. Covington, Remy Chiasson, and Elmo E. Lear of the Court of Appeal, First Circuit, participated in this decision as Associate Justices pro tempore, joined by Associate justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr., James L. Dennis and Fred A. Blanche, Jr.


text:
    Rev. Albert BOURGEOIS, Victoria Taylor, Cora Marzette and Clarence Walker v. Rev. Lawrence LANDRUM and Ebenezer Baptist Church of New Orleans.
    No. 80-C-2411.
    Supreme Court of Louisiana.
    April 6, 1981.

      Carolyn N. Hazard and Michael B. McCol-loster, New Orleans, for plaintiff-applicant.
    Sidney H. Cates, IV, of Harris, Stampley, McKee, Lombard & Cates, New Orleans, for defendants-respondents.
   DENNIS, Justice.

The issue presented by this case is whether the First Amendment protects a church organized under a state’s non-profit corporation law from the enforcement in civil court of a voting member’s statutory right to examine the records of the corporation. The trial court sustained the church’s exception of lack of jurisdiction over the subject matter of the action. The court of appeal affirmed, 387 So.2d 611 (La. App. 4th Cir. 1980) holding that since the matter at issue is not a dispute over property rights but possible dissension regarding church management, courts lack jurisdiction to intervene. We reverse the court of appeal judgment. A voting member of a non-profit corporation has a right to examine the records of the corporation without stating reasons for his inspection. Since the judicial enforcement of this right does not entangle civil courts in questions of religious doctrine, polity or practice, the First Amendment does not bar a suit to implement the statutory right.

Plaintiffs, members of Ebenezer Baptist Church, a Louisiana non-profit corporation, filed suit against the church and its pastor for a court order allowing them to examine the records which every non-profit corporation is required to keep at its registered office for inspection by its shareholders and voting members at any reasonable time. See La.R.S. 12:223(A) & (C). Their petition alleges that they wish to inspect the records “... in order to see for themselves how much money the church takes in and how the money is spent.” The trial court ordered the church and its pastor to permit the examination. After their inspection, however, the plaintiffs were not satisfied that all of the records had been produced. Plaintiffs served interrogatories on defendants seeking information they say was not contained in the records examined. Defendants failed to answer the interrogatories, and plaintiffs sought imposition of sanctions upon them, including punishment for contempt of court. Defendants filed exceptions of no right of action and lack of jurisdiction of the subject matter. The trial court overruled the exception of no right of action, but sustained the exception of lack of subject matter jurisdiction and dismissed plaintiffs’ suit.

Plaintiffs appealed to the court of appeal. Our intermediate brethren affirmed the trial court judgment, holding that civil courts have no jurisdiction to intervene in a church dispute unless it is clearly a property dispute. 387 So.2d 611. Since the plaintiffs did not allege mismanagement or misappropriation of property or funds, the court of appeal concluded that the suit was not a property dispute but may instead relate to dissension over church policy matters. We granted certiorari. 394 So.2d 614.

The issues presented are (1) whether a voting member of a non-profit corporation must allege reasons for his requested examination of the corporation’s records and (2) whether a voting member of a church organized as a non-profit corporation may obtain inspection of corporate records in the absence of an existing property dispute.

1.

A voting member of a non-profit corporation has a right, at any reasonable time, to examine the records which the corporation is required to keep at its registered office. The Louisiana non-profit corporation law, La.R.S. 12:201, et seq., in pertinent part, provides:

§ 223. A. Every corporation shall keep at its registered office (1) records of the meetings of its members and directors, and of committees of the board, share and membership records giving the names and addresses of the members in alphabetical order by classes and series and the number of shares held by each, and records of its assets, liabilities, receipts, disbursements, gains, losses, capital and surplus; and (2) separate records of all trust funds held by it. Whenever membership is terminated, this fact shall be recorded in the share or membership record together with the date on which the membership ceased, and transfers of shares shall similarly be recorded.
* * * * * *
C. Every shareholder and voting member may examine in person, or by agent or attorney, at any reasonable time, the records of the corporation listed in subsection A of this section.

The absence of any prerequisite to an examination of the records, except that it must occur at a reasonable time, indicates a legislative aim to make the specified records available to a voting member upon his simple request.

2.

Regardless of whether the present case may be classified as a property dispute, the underlying First Amendment principles, which protect against entanglement of civil courts in questions of religious doctrine, polity or practice, are not offended by the judicial enforcement of a statute requiring a church, as a non-profit corporation, to keep at its registered office, corporate records for examination by its voting members.

The First Amendment severely circumscribes the role that civil courts may play in resolving church property disputes. Presbyterian Church v. Hull Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969). First Amendment values are plainly jeopar dized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. The First Amendment therefore commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine. Id. This principle applies with equal force to church disputes over church polity and church administration. Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976). See also, Jones v. Wolf, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979).

The role that a civil court is required to play in enforcing a voting member’s right to inspect the records that his non-profit church corporation is required by the nonprofit corporation law to keep at its registered office is severely circumscribed. The records which a voting member is entitled to examine are limited to records of members’ and directors’ meetings, lists of members, records of assets, liabilities and financial transactions, and records of trust funds. The court is called upon merely to order the non-profit corporation to allow an examination at a reasonable time and perhaps to determine whether the corporation has complied with its judgment.

First Amendment values are plainly not jeopardized by a civil court’s enforcement of a voting member’s right to examine these records. Cf. Synanon Foundation, Inc. v. California, 444 U.S. 1307, 100 S.Ct. 496, 62 L.Ed.2d 454 (Rehnquist, J. in chambers). No dispute arising in the course of the litigation requires the court to resolve an underlying controversy over religious doctrine. The proper judicial function in such a case presents no hazard to the free development of religious doctrine or of implicating secular interests in matters of purely ecclesiastical concern.

Accordingly, the judgments of the court of appeal and the trial court sustaining the exception of lack of jurisdiction are reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

       The Honorable Gerald P. Fedoroff participated in this decision as Associate Justice ad hoc.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Gardner TAYLOR
    No. 80-K-1816.
    Supreme Court of Louisiana.
    April 6, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Shelia C. Myers, and John Craft, Asst. Dist. Attys., for plaintiff-appellant.
    Alvin N. Taylor, New Orleans, for defendant-appellee.
   BLANCHE, Justice.

Gardner Taylor was charged with the crime of obliterating a serial number from a firearm in violation of R.S. 40:1788. The defendant filed a motion to quash the bill of information alleging that language contained in the statute imports an unconstitutional presumption. The trial court agreed and granted the motion. From this ruling, the state has appealed. La.Const. art. 5, § 5(D) 1974.

The statute in question reads as follows:

“A. Each manufacturer, importer, and dealer in any firearm shall identify it with a number or other identification mark approved by the department and shall mark or stamp or otherwise place the number or mark thereon in a manner approved by the department.
“B. No one shall obliterate, remove, change, or alter this number or mark. Whenever, in a trial for a violation of this Sub-section, the defendant is shown to have or to have had possession of any firearm upon which the number or mark was obliterated, removed, changed, or altered, that possession is sufficient evidence to authorize conviction unless the defendant explains it to the satisfaction of the court.”

At issue in this case is whether the second sentence of Section B, authorizing conviction upon mere proof of possession of a firearm with an obliterated serial number, relieves the state of establishing beyond a reasonable doubt the accused’s guilt for the act of obliterating. La.Const. art. 1, § 16; U.S.Const. Amend. 14; In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). We hold that it does.

Two of the most fundamental features of our criminal justice system are the presumption of innocence and the require-merit that the state prove each element of a crime beyond a reasonable doubt. Of course, proving the elements of the crime with evidentiary or “basic” facts often calls for the trier of fact to make an inferential “leap” between the facts presented to it and the element of the crime that must be proven. In order to facilitate this inferential leap, the legislature has, on occasion, passed legislation which provides that proof of an evidentiary fact can or must be construed as proof of an element of a crime. The effect of such legislation is the creation of a presumption that flows from the established evidentiary fact. See County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).

The constitutionality of a statutory presumption in a criminal statute depends “... on the strength of the connection between the particular basic and elemental facts involved and on the degree to which the device curtails the factfinder’s freedom to assess the evidence independently.” Ulster County, supra, 99 S.Ct. at 2224. Where a statute provides that proof of an evidentiary fact necessarily constitutes proof of an element of the crime, the statute creates a mandatory presumption that proof of the former is deemed proof of the latter.

In order for a mandatory presumption to adequately safeguard the “beyond a reasonable doubt” standard, the evidentiary fact must be sufficient to prove the elemental fact beyond a reasonable doubt because the factfinder is denied any discretion to assign its own weight to the proven eviden-tiary fact. Ulster County, supra; State v. McCoy, 395 So.2d 319 (La.1980); State v. Lollar, 389 So.2d 1315 (La.1980); State v. Daranda, 388 So.2d 759 (La.1980). If the mandatory presumption required by the statute does not meet this standard, the provision is constitutionally defective. To hold otherwise would sanction a shift of the burden of proof to the defendant by elevating proof of an evidentiary fact not constituting proof of an element of the crime beyond a reasonable doubt to the status of proof beyond a reasonable doubt. The defendant would be faced with either risking conviction upon proof of guilt not meeting the reasonable doubt test or is forced to go forward with evidence that he is not guilty in the absence of proof of guilt beyond a reasonable doubt.

In State v. McCoy, supra, this Court considered these principles in analyzing the propriety of a presumption contained in a statute that proscribed the taking or misappropriation of defined utility services without the consent of and with the intent to defraud the utility supplier. R.S. 14:67.6. The provision under attack provided that the presence of equipment or devices resulting in the diversion of the defined utility “... shall constitute prima facie evidence of knowledge of the person .. . having custody or control of the . .. structure . .. where such device ... is located, . .. and shall constitute prima facie evidence of the intention on the part of such person ... to defraud .. .”. R.S. 14:67.6(B). Because the statute expressly provided that proof of the evidentiary fact of diversion must be considered as proof of the elements of knowledge and specific intent to defraud, we held that it created a mandatory presumption. Ultimately the presumption was struck down as unconstitutional since it could not be said that “guilty knowledge” and “intent to defraud” were established beyond a reasonable doubt by a mere showing that diversion occurred to the defendant’s benefit. This was because there were “too many other explanations” for diversion than criminality on the part of the beneficiary. McCoy, supra, at p. 323.

From the foregoing, it is clear that R.S. 40:1788(B) is equally susceptible to the same analysis as the presumption at issue in McCoy. The provision clearly prescribes the act of obliterating or altering a serial number, not mere possession of a firearm with an obliterated or altered serial number. State v. Burton, 382 So.2d 938 (La.1980). By its own terms, it instructs the trier of fact that proof of possession is sufficient proof of obliteration unless the defendant comes forward with an exculpatory explanation. Because the statute equates possession and obliteration, it requires conviction upon a showing by the state that a defendant possessed a “defaced” weapon at any time unless, of course, the defendant establishes his innocence. And since obliteration is the essence of the crime, possession of an unmarked firearm is deemed proof of guilt of the substantive offense rather than proof of a mere element. Thus, it creates a mandatory presumption since it totally curtails the factfinder’s ability to assign a particular weight to proof of possession. It must, therefore, stand or fall on the basis of the connexity between the basic and elemental facts.

The obliteration of a serial number from a firearm cannot be inferred, beyond a reasonable doubt, from a defendant’s status as a past or present possessor of a firearm with an obliterated serial number. This is because firearms are easily transferred in this as well as other states and there is always the substantial possibility that the person in possession of the offending firearm received it from a third person who was the obliterator or transferee of an ob-literator, or that the weapon was altered after it left a possessor’s hands.

For the reason that the second sentence of R.S. 14:1788(B) establishes a mandatory presumption that does not meet the “beyond a reasonable doubt” standard, it literally throws the burden upon a defendant to establish his innocence once the prosecution proves the evidentiary fact of possession. Therefore, it is unconstitutional.

The unconstitutionality of one portion of a statute, however, does not necessarily render the entire statute unenforceable. If the remaining portion of the statute is severable from the offending portion, this Court often strikes only the offending portion and leaves the remainder intact. State v. McCoy, supra; State v. Brown, 389 So.2d 48 (La.1980). We find in the present case that the remainder of the statute can stand.

In the first place, the legislature provided a severability clause in the original enactment of the statute in question which provides that the invalidity of any portion of the act shall not affect the validity of the other portions. Acts 1935,4th Ex.Sess., No. 17, § 15. Second, the remaining portions of 1788 have meaning and can still accomplish. the purpose the legislature sought to accomplish even without the aid of the unconstitutional presumption. The marking requirement of § 1788(A), not at issue here, is totally unaffected and obliteration or alteration proscribed by § 1788(B) can still be proven in the same manner any other crime may be proven even without the aid of a presumption.

Although we have declared the second sentence of R.S. 40:1788(B) unconstitutional, the trial court erred in quashing the information against defendant. Because the offensive provision can be severed from the remainder of the statute, the defendant may still be charged with the crime of obliterating a serial number. Thus, we remand this case to the trial court for further proceedings consistent with the views expressed herein.

REVERSED AND REMANDED.

       Judges Grover L. Covington, Remy Chiasson and Elmo E. Lear of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Associate Justices Calogero, Marcus, Dennis and Blanche.


text:
    STATE of Louisiana v. Lawrence JAMES.
    No. 80-KA-2089.
    Supreme Court of Louisiana.
    April 6, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, & Joseph Giarrusso, Asst. Dist. Attys., for plaintiff-appellee.
    Charles Z. Ranel, Roberson & Ranel, Baton Rouge, for defendant-appellant.
   BLANCHE, Justice.

Lawrence James was charged in Count I with unlawful distribution of heroin and in Count II with unlawful possession of heroin with intent to distribute. La.R.S. 40:966(A). The two counts were severed on motion of the defense. In separate trial proceedings, the defendant was found guilty of possession of heroin on the first count and guilty as charged on the second count. He was sentenced to 10 years at hard labor on count one and life without parole, probation or suspension of sentence on count two. By this appeal, the defendant urges three assignments of error as grounds for reversal of conviction and sentence on counts one and two, and two additional assignments pertaining solely to count two.

The two drug transactions involved were virtually identical. The first offense took place on November 10, 1977 and the second on November 15, 1977. A confidential informant put Agent Ernest Steim of the Drug Enforcement Administration in touch with James for the purpose of purchasing heroin. In each case, the defendant and Agent Steim met in Houma and made arrangements for the purchase and discussed prices. As arranged, Steim and the confidential informant then drove the defendant to New Orleans to meet with an individual named Truck. Upon arrival in New Orleans, the defendant was paid in advance. He was dropped off at a designated street intersection and picked up some time later at or near the same corner after the defendant presumably obtained the drugs from “Truck”. The defendant then allegedly delivered heroin to Agent Steim. At the end of the transaction involved in count one, Steim allegedly gave the defendant more money upon their return to Houma. Defendant was convicted on both counts as set forth above and urges the following assignments on appeal as grounds for reversal of his conviction.

COUNT I

Assignment of Error Number 1

By this assignment the defendant urges that the trial court erred in not ordering the state to divulge the name of the confidential informer involved in the drug transaction. The defense had requested the name of the informant through a bill of particulars and the state had replied that the defense was not entitled to that information.

As a general rule, the state is permitted to withhold the identity of an informer from an accused. This is a privilege founded upon public policy and seeks to further and protect the public interest and law enforcement by encouraging persons to supply information to the police without fear of reprisal by the person to whom the information pertains. Thus, the identity of an informer should be made known to the accused only when a defendant’s right to prepare his defense outweighs the need for protection of the flow of information. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); State v. Williams, 347 So.2d 184 (La.1977); State v. Dabon, 337 So.2d 502 (La.1976); State v. Dotson, 260 La. 471, 256 So.2d 594 (La.1971), U.S. cert. den. 409 U.S. 913, 93 S.Ct. 242, 34 L.Ed.2d 173 (1972).

To gain disclosure, the defendant bears the burden of demonstrating exceptional circumstances pertaining to his defense, and the trial court is accorded great discretion in making such a determination. State v. Williams, supra; State v. de la Beckwith, 344 So.2d 360 (La.1977); State v. Dotson, supra; State v. Greenbaum, 257 La. 917, 244 So.2d 832 (1971). For example:

“_the state might properly be required to disclose the identity of the confidential informant, if it intends to introduce evidence at the merit-trial of an incident at which the informant was present or in which the informant set up or participated in the crime.” State v. Diliberto, 362 So.2d 566 (La.1978).

The rationale of this rule is founded on the assumption that knowledge of the informer’s identity in such case may be highly relevant or helpful to the defense of an accused or to a fair determination of some issue before the court. Roviaro v. United States, supra; State v. Dotson, supra. On the other hand, general allegations of “frame” or “entrapment” are generally insufficient demonstrations of exceptional circumstances to warrant disclosure. See State v. Dotson, supra, n.l.

Although in the present case the testimony was to the effect that the informer introduced Steim to the defendant and accompanied them when the defendant acquired the drugs and gave them to Steim, these actions alone did not amount to participation in the offense of distributing heroin or “setting up” the defendant to be something which he was not predisposed to do from the start.

Furthermore, the mere presence of the informer in the vehicle during the journey to acquire the drugs did not, in this case, warrant pre-trial disclosure. In the first place, the defendant did not inform the trial court of any particular reason why or how pre-trial identity of the informant would aid him in his defense. His pre-trial motion for disclosure does nothing more than allege conclusions that the informer entrapped the defendant and participated in the alleged transaction. Second, the record on appeal undercuts the defendant’s claim of prejudice because it establishes that although the defendant may not have known which person was the informant before trial, he did know the name of the informant and his role in the sequence of events prior to trial.

Agent Steim testified that a confidential informant introduced him to the defendant for the purpose of buying narcotics. He further testified that during the journey to acquire the drugs, the unnamed informant was in the car with the defendant, himself, and a Mr. Coleman, an associate of the defendant. When the defendant took the stand at trial, he readily identified all parties involved in the journey, naming Coleman, Steim and Kenny Pellegrin, whom the state now in brief admits to be the informant. The defendant further stated that he had known Kenny Pellegrin for 7 years. Thus, the defendant was well acquainted with both the informant and his role in the transaction and had his testimony in any way aided the defendant, he could have been called by the defendant as a witness. In short, the issue may be described as “much ado about nothing”, because the defendant well knew the identity of the informant and the state’s interest in protecting the informant’s confidentiality was under the circumstances non-existent.

As defendant has shown no prejudice from the court’s failure to order pre-trial disclosure of this information, this assignment is without merit.

Assignment of Error Number 3

By this assignment the defendant urges that the trial court erred in not ordering the state to properly answer paragraph IV of the motion for oyer requesting the “Substance of any oral statements which the State intends to offer in evidence at the trial of defendants, or Third Party, whether before or after arrest.” The state replied that the defendant was not entitled to this information. A hearing was held and the court ruled in favor of the state. At trial the defendant objected to the admission of the testimony of Agent Steim concerning his dealings with the defendant relating to the purchase of drugs. C.Cr.P. arts. 716, 729.5. We find no error in the ruling of the trial court.

The only testimony regarding statements made by defendant were those statements of defendant which were paraphrased by Agent Steim, and which dealt with the negotiations between Steim and the defendant concerning the purchase of drugs, including instructions given to Steim by the defendant concerning the “pickup” of the drugs, the exchange of the drugs and the payment to the defendant for his role in the transaction. Most of the statements were made prior to the alleged offense of distribution and all described the immediate transaction involved from start to finish.

Although the defendant now contends in brief that his aforementioned request entitled him to notice of the existence of statements intended for use at trial, his request was phrased in terms of a request for the substance of any such statements. C.Cr.P. art. 716(C), dealing with discovery of the substance of a defendant’s statements, provides as follows:

“Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the substance of any oral statement which the state intends to offer in evidence made by the defendant, whether before or after arrest, in response to interrogation by any person then known to the defendant to be a law enforcement officer.”

This article is clearly inapplicable since the testimony given at trial clearly indicates that the statements upon which this assignment is based were not given in response to interrogation by a person known to the defendant to be a law enforcement officer. To the contrary, Agent Steim was “undercover” posing as an acquaintance of the informer in order to gain access to the defendant. And when the defendant took the stand, his own recollection of the events was that Steim was supposed to have been Kenny’s (the informer’s) friend who had some money to invest after receiving a settlement from a lawsuit.

This assignment is without merit.

Assignment of Error Number 12

By this assignment the defendant claims that the trial court erred in failing to order the state to produce evidence for inspection and in admitting heroin into evidence.

Counsel for defense filed a pre-trial motion for discovery and inspection under C.Cr.P. art. 718 requesting, in pertinent part, the district attorney to allow defendant to inspect, examine or test evidence in the custody of the state which the state intended to use at trial, which was obtained from or belonged to the defendant or which was exculpatory. The record reveals that the state originally answered that it had none and then changed the answer to read “The State will comply to the extent that it is in possession of any such evidence.” The record contains no other pleadings or private letters which indicate any other attempt on the part of the defendant to gain access to the evidence sought.

At trial, Agent Steim identified a packet of a substance purported to be heroin which he had purchased from the defendant. When the state sought to have the evidence introduced, defense counsel objected, urging that the state had failed to properly inform the defendant of its possession of the evidence and failed to make the evidence available for inspection. The objection was overruled.

The defense sought the remedy of exclusion under C.Cr.P. art. 729.5(A), which provides:

“If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal as may be appropriate.”

Because these sanctions are to be applied in the discretion of the trial court, the defendant must show prejudice resulting from an adverse ruling before this Court can reverse his conviction. See State v. Kimble, 375 So.2d 924 (La.1979); State v. Qualls, 353 So.2d 978 (La.1977).

The indictment informed the defendant that he had been charged with the distribution of heroin. In response to the defendant’s application for a bill of particulars, the state responded that it was in possession of evidence obtained from the defendant, although not mentioning heroin by name. When the foregoing information is coupled with the defendant’s admission from the witness stand that he gave Agent Steim four bags of heroin, it becomes quite clear that the defendant had actual knowledge that the state was in possession of the same physical evidence involved in this assignment. Thus, the defendant is in no position on appeal to claim prejudicial surprise or inability to prepare a defense from the introduction of the evidence.

Furthermore, the defense made no claim that it had arranged for any independent testing of the evidence or that independent testing may have established that the substance was not heroin. In fact, the defendant testified that he used some of the heroin to make sure it was good, and the absence of any complaint on his part indicates that the substance was actually heroin. Nor did the defense, in spite of its knowledge that the state possessed the evidence, allege that it attempted to prod the state to make good in its commitment to comply with the inspection request.

Because the defendant has failed to demonstrate that any prejudice resulted from the inability to inspect the heroin introduced at trial, this assignment is without merit.

COUNT II

In challenging Count II the defendant urges the same arguments as those asserted for Count I, plus two additional grounds. However, in light of our decision that the conviction for Count II must be reversed, we need only consider the assignment complaining of the reversible error.

Assignment of Error Number 18

By this assignment the defendant urges that the trial court erred in allowing reference to count one of the indictment during the trial on the merits of count two.

Prior to the trial on the second count, the state notified the court of its intention to introduce evidence of similar acts of the defendant and submitted a memorandum in support thereof. A hearing on this issue was held before trial and the defense objected to any reference by the state to the first offense of which the defendant had already been convicted. The trial court ruled that such evidence could be admitted at trial. The state presented the evidence of the crime charged in count one at the trial of count two in its case in chief over objection by defense counsel.

“Because introduction of evidence of other acts of misconduct involves substantial risk of prejudice to a defendant, evidence of crimes related to the offense with which a defendant is charged is inadmissible except under special exceptions. State v. Prieur, supra. The general rule is that the prosecution may not introduce evidence of other crimes unless the evidence is substantially relevant for some purpose other than to show a possibility that defendant committed the crime with which he is charged because he is a man of general criminal character. State v. Sutfield, 354 So.2d 1334 (La.1978). Aside from related offenses admissible as part of the res gestae and convictions admissible for impeachment purposes, Louisiana statutes provide for only three exceptions — acts relevant to show intent, knowledge, or system. R.S. 15:445, 446. Admission of another crime committed by the same “system” as the offense charged might also be relevant to show the identity of the defendant as the offender. See State v. Waddles, 336 So.2d 810 (La.1976).” State v. Harris, 383 So.2d 1, 8 (La.1980).

In order for the events relative to count one to constitute res gestae vis-a-vis count two, as the state contends, “.; . the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.” R.S. 15:448. See also R.S. 15:447. The two offenses involved in the case at bar appear to be totally separate transactions occurring five days apart. Though the offenses involved the same parties under almost identical circumstances, they do not form one continuous transaction, but two distinct transactions. Thus, they do not fall within the res gestae exception to the prohibition against other crimes evidence.

Alternatively, the state argues in brief that the two incidents are so similar in modus operandi as to render the evidence of the first transaction admissible at trial of the second. R.S. 15:445, 446; State v. Prieur, 277 So.2d 126 (La.1973). However, in order for evidence of system to be admissible, it must be shown that (1) the other crime is so distinctively similar in system that one must logically say that both crimes are the work of the same person, i. e. signature crimes; (2) proof of the other crime is relevant to prove a matter at issue, such as identity; and (3) the probative value of the evidence outweighs and prejudicial effect. State v, Davis, 389 So.2d 71 (La.1980); State v. Jackson, 367 So.2d 353 (La.1979); State v. Showers, 359 So.2d 104 (La.1978). Concerning the second requirement “.. . the ‘matter at issue’ must be real and genuine, and not one which the prosecution conceives to be at issue merely because of the plea of not guilty.” State v. Moore, 278 So.2d 781, 785 (La.1973); See also State v. Davis, supra.

Without scrutinizing the distinctive similarity between the “other crime” and the one charged in count two, we note that there is no genuine issue for which the other crime is relevant to the resolution. Agent Steim related the details of the alleged transaction and identified the defendant as the perpetrator. The defendant never took the stand to dispute his participation in the events described nor did he call any alibi witnesses. Thus, defendant’s identity was not a genuine issue, and the evidence of the other crime could serve no other purpose but to create a substantial risk of prejudice to the defendant by cumulating the testimony of the state’s main witness with evidence of defendant’s bad character, thereby bolstering the former. For this reason, defendants conviction of count two must be reversed and remanded for a new trial.

DECREE

For the foregoing reasons, the conviction of defendant for count one is affirmed and the conviction for count two is reversed and remanded for retrial consistent with the principles herein expressed.

       Judges Grover L. Covington, Remy Chiasson and Elmo E. Lear of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Associate Justices Calogero, Marcus, Dennis and Blanche.

      . The defense application for a Bill of Particulars contains the following question:
      “5.
      “Was any physical evidence obtained from the defendant and if so, by whom and at what locations?”
      The state’s Bill of Particulars contains the following answer:
      “5.
      “Yes. From S/A Ernie Stein (sic)...”

      . Initially, counts one and two were joined in the indictment and the trial court denied a motion to sever the two counts. However, upon application by the defendant, this Court granted a supervisory writ and ordered the trial court to reconsider its ruling in light of the principles espoused in State v. Slayton, 338 , So.2d 694 (La.1976). The trial court then severed the two offenses. State v. James, 369 So.2d 456 (La.1979).


text:
    STATE of Louisiana v. Daryl P. GALLIANO.
    No. 80-K-2615.
    Supreme Court of Louisiana.
    April 6, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns and Madeline M. Slaughter, Asst. Dist. Attys., for plaintiff-relator.
    Ralph S. Whalen, Jr., New Orleans, for defendant-respondent.
   BLANCHE, Justice.

Daryl P. Galliano was charged by bill of information with aggravated burglary and aggravated crime against nature. R.S. 14:60; R.S. 14:89.1. At arraignment, he pleaded guilty as charged to both counts after a colloquy involving the judge, prosecutor, defense attorney and himself. He also signed a written waiver of constitutional rights. After a pre-sentence psychiatric examination, he was sentenced to serve thirty (30) years on the aggravated burglary charge and fifteen (15) years on the crime against nature charge. Two months after sentencing, Galliano, through counsel, filed a written motion to vacate the sentence and plea on the charge of crime against nature. After a hearing, the trial judge who had accepted Galliano’s plea and sentenced him vacated the plea and sentence, concurring in counsel’s assertion that the plea was not voluntary and intelligent. From this ruling, the state sought a writ of certiorari, which was granted.

The controversy which forms the basis of this case arose during the acceptance of the plea of guilt on the crime against nature charge. The trial judge informed Galliano of the maximum potential penalty but also informed him that there was no minimum sentence which had to be imposed on the charge and that the sentence was subject to suspension. However, the crime with which he was charged was allegedly committed on October 4, 1979, approximately one month after an amendment to the penalty provision of the crime against nature statute. This amendment created a minimum mandatory penalty of three years jail time, to be without benefit of suspension of sentence, probation or parole. Although adverting to the new amendment during the plea colloquy, the judge misstated its content.

At the hearing on the motion to vacate the sentence and withdraw the plea, the judge admitted the mistake in the law cited, determined that he misled Galliano at the time he accepted the guilty plea, and granted the motion.

Code of Criminal Procedure art. 559 provides, in pertinent part, that “[t]he court may permit a plea of guilty to be withdrawn at any time before sentence.” In this case, however, the court permitted withdrawal of the plea after sentencing. Thus, it is first necessary to discuss whether article 559 stood as an absolute bar to the judge’s actions.

Notwithstanding the language of article 559, this Court has stated that a constitutionally infirm guilty plea may be withdrawn after sentence is imposed in the same manner that any illegal sentence may be attacked, namely, appeal, or writs of certiorari or habeas corpus. C.Cr.P. art. 882; State v. Banks, 383 So.2d 1009 (La.1980); State ex rel. Clark v. Marullo, 352 So.2d 223 (La.1977). The reason for this exception in the context of guilty pleas was to insure that no person was deprived of his liberty merely because he failed to challenge the voluntariness of his plea within the limited period of time between the plea and sentencing.

The vehicle by which Galliano sought to attack his guilty plea was a pleading entitled “Motion to Vacate Sentence and Withdraw Plea”. It alleged, in substance, that the plea was entered at a time when he understood that his sentence could be suspended. Regardless of the motion’s caption or style, it requested relief within the lower court’s habeas corpus power. In such a case, this Court can construe the pleading to do substantial justice and treat it as a-request for habeas corpus postconviction relief. State v. Banks, supra; State ex rel. Clark v. Marullo, supra. It is in this posture that the propriety of the actions of the trial judge must be viewed.

The remaining problem springs from Gal-liano’s contention at the hearing on his motion that the guilty plea was constitutionally infirm when entered because the mistake as to the minimum sentence prevented him from making a voluntary and intelligent plea. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709,23 L.Ed.2d 274 (1969); McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).

Because a plea of guilty waives an accused’s fundamental right to a jury trial, right to confront his accusers and privilege against self incrimination, due process requires as a prerequisite to its validity that the plea be a voluntary and intelligent relinquishment of known rights. McCarthy v. United States, supra. The record of the plea must show that the defendant was informed of these three basic rights and then knowingly and voluntarily waived them. State v. LaFleur, 391 So.2d 445 (La. 1980).

Since the plea colloquy is but an objective method of ascertaining and preserving an accused’s state of mind, however, judicial inquiry need not focus solely upon the clarity of the words used. For this reason, a court, when called upon to do so through a recognized procedural vehicle, has the power, notwithstanding a record waiver of constitutional rights, to determine whether other factors present at the time of a guilty plea, whether inside or outside the plea colloquy record, were sufficient to render the plea involuntary or unintelligent. See Blackledge v. Allison, 431 U.S. 63,97 S.Ct. 1621,52 L.Ed.2d 136 (1977).

The state in brief argues the applicability of state and federal cases in which failure of trial judges to properly or fully inform defendants of particular facts at the time of their pleas were held not to render the underlying pleas of guilty involuntary or unintelligent. State v. MacDonald, 390 So.2d 1276 (La.1980); State v. Langendor-fer, 389 So.2d 1271 (La.1980); Turner v. United States, 320 F.Supp. 1204 (E.D.La. 1970). In MacDonald, this Court hinted that the failure of a trial court to inform a defendant of a minimum sentence does not require the reversal of a plea if the plea contains a record waiver of constitutional rights. In Langendorfer, this Court allowed the use of an out of state guilty plea to multiple bill a defendant even though the predicate plea colloquy contained a misstatement of law as to the maximum penalty. And in Turner, the district court determined that a guilty plea was not involuntary merely because the defendant was not informed that he could have received a more lenient sentence than the maximum permitted by law.

Regardless of the results of these particular cases, they do not require us to reverse the lower court in the case at bar. In fact, the courts were actively engaging in the subjective analysis of which we now speak. In Turner, the judge ruled that the guilty plea was voluntary and intelligent after considering the objective evidence in the record as well as later testimony taken at an evidentiary hearing on the voluntariness issue. In MacDonald and Langendorfer, this Court likewise looked beyond the record waiver of constitutional rights in order to determine voluntariness and intelligence from the totality of the record before it. In MacDonald this included a review of a plea bargain arrangement and in Langendorfer this included a review of testimony taken at the multiple offender hearing.

In the case at bar, the transcript of the plea colloquy contains an unambiguous explanation by the judge to Galliano concerning the privilege against self incrimination, the right to a jury trial, and the right to confront his accusers, and the effect of a guilty plea upon them. Galliano responded affirmatively to each question concerning his awareness and understanding of these rights. Thus, the record contains objective evidence of a voluntary and intelligent waiver of known constitutional rights.

On the other hand, the colloquy also contains statements in support of Galliano’s claim on the motion to withdraw the plea. The judge informed Galliano that he had discussed the case in chambers with Galli-ano’s attorney, and had decided to forego a presentence investigation but to order a psychiatric examination upon entry of the plea. This, when coupled with the belief on the part of all persons involved in the colloquy that a suspended sentence on the crime against nature charge was available, supports Galliano’s • claim that the plea was entered on that charge primarily because of the possibility of a suspended sentence upon the issuance of a favorable psychiatric examination.

At the hearing on the motion to withdraw the plea, the judge who had accepted the plea made a determination that he misled Galliano when taking the plea. Since he was in the best position to determine the initial voluntariness and intelligence of the plea and the effect of the mistake upon Galliano, we decline to upset his determination. See State v. Muller, 351 So.2d 143 (La.1977).

In light of the facts presented in this case, the writ issued to review the ruling of the lower court was improvidently granted and is hereby recalled.

GARRISON, J., ad hoc, dissented.

       Judges Jim Garrison, Lawrence Chehardy and Denis A. Barry of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Associate Justices, Calogero, Marcus, Blanche and Lemmon.

      .The written motion in the record only dealt with the crime against nature charge. At the hearing on the motion, counsel for the defendant argued that there was error as to both pleas. However, the motion, even if properly before the court, was orally withdrawn as to the burglary charge.

      . Acts 1979, No. 125, § 1. The amendment became effective on September 7, 1979. See La.Const. Art. 3, § 19.

      . Because of the time at which this case arose, we need not consider the recent enactment of C.Cr.P. art. 924 et seq. or amendment of C.Cr.P. art. 351 et seq.

      . A suspended sentence was possible on the aggravated burglary charge. C.Cr.P. art. 893.


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Curtis JACKSON.
    No. 80-KA-1983.
    Supreme Court of Louisiana.
    April 6, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Cornelius Regan, Louise Korns, Asst. Dist. Attys., for plaintiff-ap-pellee.
    William J. O’Hara, III and Ernie L. Val-lery, New Orleans, of Loyola Law School Clinic, for defendant-appellant.
   LEMMON, Justice.

The principal issues in this appeal relate to the trial judge’s refusal to accept a stipulation offered in lieu of the testimony of a defense witness and to allegedly prejudicial remarks made by a witness for the prosecution.

On September 14, 1978 two persons observed defendant in the act of breaking into the residence of one of their neighbors. The witnesses saw defendant force the door open with a crowbar and enter the dwelling, and they eventually saw him leave with various items.

When the police arrived at the scene in response to a call from the occupant of the dwelling who had returned home and discovered the burglary, the witnesses reported their observations to the investigating officers. Both witnesses had known defendant for several years and positively identified him as the burglar.

Defendant, a felon on probation, was arrested, prosecuted and convicted of simple burglary. After being adjudicated a habitual offender pursuant to R.S. 15:529.1, he was sentenced to serve ten years imprisonment.

At trial the state presented the testimony of the two eyewitnesses, who related defendant’s actions that they observed from the front porch of their apartment building, which was located across the street from the victim’s residence. Using photographs taken from both sides of the street, defense counsel extensively cross-examined both witnesses as to their ability to observe from their location the burglar’s point of entry, which was a door facing a sidewalk in a narrow side yard of the victim’s apartment.

Following the state’s case in chief, defense counsel offered a stipulation to the effect that a certain deputy sheriff, who lived in the neighborhood where the burglary occurred, would testify that in the deputy’s opinion the state’s witnesses from their stated vantage point could not have seen what they claimed to have seen. Although the state did not object, the trial court refused to allow defendant to present the stipulated testimony to the jury.

The trial court did not abuse .its discretion in refusing to allow this stipulation, as stated, to be presented to the jury. One witness’ opinion as to the accuracy of another witness’ testimony generally will not be helpful to the jury. Under some circumstances the testimony of a non-expert witness in the form of an opinion or inference may be admitted when the testimony is “rationally based upon the perception of the witness” and is “helpful to a clear understanding of his testimony or the determination of a fact in issue”. See F.R.Ev. 701. This exception applies when its difficult for the witness to express himself without venturing an opinion. The defense witness in this case could have testified concerning the physical attributes of the place of the offense and of the various obstructions to view located there, or could have stated that he had attempted to view the burglar’s point of entry from the eyewitnesses’ porch and was unable to do so. However, the stipulation of testimony was offered in the form of an opinion as to the accuracy of testimony given by other witnesses, and the trial judge properly refused to accept the stipulation in the form in which it was offered. Moreover, defense counsel did not attempt to call the witness for testimony as to facts within his knowledge or to reformulate the stipulation in factual and non-objectionable terms.

Finally, inadmissible evidence, even when not objected to by a party, may be excluded. A trial judge is more than a mere umpire and has an obligation to see that the jury is only presented with evidence that will aid in its search for the truth. State v. Baldwin, 388 So.2d 679 (La.1980).

Defendant’s other assessment of error is that the trial court should have granted his motions for a mistrial and for a new trial.

Mrs. Sallie Stevenson, a state witness, testified on direct that she saw defendant break into and enter the victim’s residence. When defense counsel questioned her at length about whether she had actually been able to view the scene of the offense from her apartment, the following exchange occurred:

“... Just walk back in there and see what you can see. Now, don’t ask me all those crazy questions because it’s nonsense.
“Q. All I’m asking, Miss Stevenson, is how far_
“A. You know one thing, I think the state done spent about Fifty Thousand Dollars since this case been on. Now, I’m going to tell you just what I think. The Probation Office should have put him in school when I told him. It didn’t take all of this_”

Defendant then objected and moved for a mistrial based on the witness’ unsolicited response. The trial judge denied the motion without stating a reason.

Later during cross-examination, the following exchange occurred:

“Q. So, you knew Curtis didn’t go to the funeral with her, but you still thought Curtis might be opening the door for her.
“A. Well, I thought maybe she had come back from the funeral, and left her keys in the house, and he was opening the door for her.
“Q. One hour.
“A. Yeah. They tried to get my son to break in that brick house, and I told him he better get his tail from across that street.”

Defendant again moved for a mistrial, and the trial court denied the motion.

Defendant asserts .that his motions should have been granted because the witness’ remarks were impermissible and prejudicial references to other crimes.

The state may not introduce evidence of other criminal acts of the accused, unless the evidence is substantially relevant for some other purpose than to show a probability that the accused has committed the charged offense or that he is a man of bad character. State v. Gann, 392 So.2d 381 (La.1980). Further, when a direct or indirect reference to another crime committed or alleged to have been committed by defendant, as to which evidence would not be admissible, is made within the hearing of the jury by the judge, district attorney or a court official, C.Cr.P. art. 770(2) requires a mistrial on motion of defendant.

Since the witness was not a court official, C.Cr.P. art. 770 does not apply. The applicable provision is C.Cr.P. art. 771, which provides in pertinent part:

“In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
* * * * * *
“(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
“In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.”

It does not appear, nor does defendant claim, that the remark made by Mrs. Stevenson was deliberately planned by the prosecution to prejudice the rights of defendant. Her answer and remarks appear to have been volunteered, unsolicited and not designed by her to prejudice the accused. Unsolicited and unresponsive testimony is not chargeable against the state to provide a ground for reversal of a conviction. State v. Kimble, 375 So.2d 924 (La.1979); State v. Lewis, 353 So.2d 703 (La. 1977); State v. Hutto, 349 So.2d 318 (La.1977); State v. Hardy, 344 So.2d 1018 (La.1977).

, Furthermore, Mrs. Stevenson’s remarks were cryptic, obscure references to other crimes made without explanation or elaboration, and there was no discussion by the counsel or the court to call further attention to the statements. Even if these remarks were within the contemplation of art. 771(2), it does not follow that a mistrial should have been granted since, in the absence of clear prejudice, the defense is only entitled to have the trial judge admonish the jury to disregard the objectionable remark. State v. Lewis, 315 So.2d 626 (La. 1975). The jury was instructed to disregard the witness’ statements. Defendant’s motions were properly denied.

The conviction and sentence are affirmed.

DENNIS, J., concurs.

      . The stipulation in its entirety, as offered by defendant, was as follows:
      “Your Honor, at this time, we would proffer that if Sgt. Wellington DeJoie of the Orleans Parish Criminal Sheriffs Office were called, he would testify that he’s lived in this neighborhood for over thirty years. He knows all the people involved. He is very familiar with the houses involved, and that he would testify that, in his opinion, the two state’s witnesses, Miss Stevenson and Mr. Williams, could not have seen down the alley from their front porch, and where they say they saw, and that he knows of their testimony because he was assigned to the Magistrate Court session during the preliminary hearing of this matter.”

      . In brief the state contends that an objection was raised. However the record reveals the state’s acquiescence in the stipulation. The state, of course, refused to stipulate the truth of the testimony, but only agreed that the deputy would, in fact, have ventured such an opinion if called as a witness.

      . For example, a lay witness might have difficulty in describing, without stating conclusions, a person who appeared to be “sleepy” or “angry”.

      . See State ex rel Fields v. Maggio, 368 So.2d 1016 (La.1979), where this court found no error in the trial court’s refusal to permit the parties to offer polygraph evidence even by stipulation.


author: GULOTTA, Justice Ad Hoc.

text:
    STATE of Louisiana v. Reginald GATLIN.
    No. 80-KA-1882.
    Supreme Court of Louisiana.
    April 6, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Ralph Roy, and Wiley Dial, Asst. Dist. Attys., for plaintiff-appellee.
    M. Michele Fournet, Asst. Public Defender, for defendant-appellant.
   GULOTTA, Justice Ad Hoc.

Defendant appeals from a guilty verdict of aggravated battery arising out of a fight at a park with Charles Ray Carter in East Baton Rouge Parish. In the course of the fight, Carter was struck on the head with a pistol and was shot once in the leg. After the shooting incident, Gatlin left the scene in his sister’s car. The defendant was sentenced to six years imprisonment in the custody of the Department of Corrections.

Defendant raises three assignments of error: (1) that the trial judge erred when he refused to permit defendant an opportunity to offer surrebuttal testimony to new issues raised by the State on rebuttal; (2) that the rebuttal evidence was inadmissible as hearsay; and, (3) that the State’s rebuttal witnesses violated the sequestration order by discussing their testimony while sequestered. Finding no merit in any of the assignments of error, we affirm the jury verdict.

The theory of the State’s case was that after an initial exchange of harsh words with Charles Ray Carter, the defendant went to a car, retrieved a pistol, and returned to strike and shoot Carter. On the other hand, the defense contended that Carter had produced a pistol during the argument and in the ensuing struggle it had accidentally gone off, striking Carter in the thigh.

ASSIGNMENT OF ERROR NO. 4

The first assignment of error on appeal relates to the testimony of the defendant’s sister, Terry Gatlin, who testified on behalf of the defense. She stated that she had driven defendant to the park on the day of the incident, had gone home, but had later returned to the park where she remained seated in her vehicle for some time. Upon being told that her brother was involved in a fight, she then went to the scene where she heard gunfire and saw the victim leaving the vicinity. This witness denied that her brother had come to the car to retrieve a gun and also denied seeing her brother shoot Carter. On cross examination, she was questioned about events preceding the fight and issues collateral to it.

Robin Bell stated in her testimony in chief on behalf of the State that she had seen the fight and had observed Gatlin produce a pistol and shoot Carter. Called on rebuttal by the State after Terry Gatlin had testified, Bell stated that immediately after the shooting she had seen Gatlin’s sister crying and heard her say that the defendant “had shot him, or something.” The sister had told the defendant “to come on.” When questioned on cross examination during rebuttal, Bell revealed that she had first told the assistant district attorney of Terry Gatlin’s statements about “five, ten minutes” before testifying on rebuttal. She did not remember telling the police of Terry’s statements or so testifying at defendant’s first trial. Bell stated further that she had discussed the statements made on rebuttal by her with two witnesses who were seated in the hall awaiting the conclusion of defendant’s case. Such conversation was in violation of the trial court’s admonition not to discuss the testimony.

Patsy Payne, the State’s other rebuttal witness, made no reference to defendant’s sister when she testified for the State in chief. On rebuttal, however, she remembered that defendant’s sister had stated that defendant “shot Charles Ray Carter.” She denied discussing her rebuttal testimony with Bell.

Thereafter, defendant moved to be allowed to rebut Bell and Payne’s rebuttal testimony regarding statements allegedly made by Terry Gatlin. Upon being informed by defense counsel that in surrebut-tal Terry Gatlin would simply deny making the statements testified to by Bell and Payne, the trial judge denied defendant’s request. The judge felt that any such further denials by Terry Gatlin would not be “additional evidence” and would present nothing that had not already been testified to before the jury.

The rule regarding rebuttal testimony was set forth by this Court in State v. Turner, 337 So.2d 455, 458 (La.1976) as follows:

“The state may not reserve part of its case-in-chief for rebuttal testimony, after the defense has put on its case and when it can no longer present evidence to rebut the state’s case. This is contrary to statute, to ancient jurisprudence, and to rules of fair play. La.R.S. 15:282, State v. Snoddy, 332 So.2d 800 (La.1976); State v. Campbell, 263 La. 1058, 270 So.2d 506 (1972); State v. Davis, 246 La. 383, 164 So.2d 589 (1964); 2 Marr’s Criminal Jurisprudence of Louisiana, Section 633 (1923). In State v. Monroe, 205 La. 285, 17 So.2d 331, 332 (1944), we noted: ‘Rebutting evidence is that which is offered to explain, repel, counteract, or disprove facts given in evidence by the adverse party.’ (Italics ours.) Again, in State v. Smith, 120 La. 530, 532, 45 So. 415 (1908), we noted that rebuttal evidence is ‘evidence which has become relevant or important only as an effect of some evidence introduced by the other side’.”

In the instant case, the State sought to prove that defendant had retrieved a pistol from his car and shot Carter, whereas the defendant sought to show Carter had been shot in a struggle over his own weapon. The State’s rebuttal evidence sought to prove that defendant’s sister had made statements supporting the State’s position as well as suggesting that the sister had witnessed the shooting.

The rebuttal testimony attempted to impeach the credibility of the sister. However, because defendant’s sister had not been asked upon cross examination whether she had made the statements attributed to her by the State’s rebuttal witnesses, rebuttal evidence of prior inconsistent statements was not admissible for impeachment on rebuttal. See LSA-R.S. 15:493. We are not impressed with the State’s claim that the prosecutor was not aware of the contradiction at the time Terry Gatlin’s testimony was offered in chief.

To the extent that the rebuttal testimony produced statements linking defendant to the crime, that testimony did not offer evidence that had become relevant “only as an effect of some evidence introduced by the other side.” State v. Smith, 120 La. 530, 532, 45 So. 415 (1908). Indeed, the statements made by defendant’s sister appeared to be clearly relevant to Gatlin’s guilt and those statements should have been produced as part of the evidence in chief. See State v. Smith, supra.

In this connection, this court has noted two kinds of prejudice sustained by an accused through the admission of state rebuttal evidence that should have been introduced during the State’s case in chief. In State v. Turner, supra, we pointed out:

“(1) Since in Louisiana ‘the defendant is without right to rebut the prosecutor’s rebuttal’, La.R.S. 15:282, the defendant may be prejudiced by the denial to him of an opportunity to defend against new issues; and
(2) The production of strong prosecution evidence in chief after the defendant rests his case may unfairly emphasize the prosecution’s ‘rebuttal’ evidence, contrary to the legislatively intended order of proof, La.C.Cr.P. art. 765(5), designed from ancient experience to assure fairness in our criminal trials.”

The first type of prejudice may be cured by permitting the defendant to introduce, on surrebuttal, additional evidence to defend against the new issue. Whether or not harmless or reversible error resulted depends upon the nature of the evidence offered by the State for the first time in rebuttal. Where the rebuttal evidence injects an entirely new issue that should have been a part of the State’s case in chief, or where it unfairly emphasizes a part of the State’s evidence that should have been introduced in the case in chief, it cannot be regarded as harmless. State v. Turner, supra.

In any event, the effect of the rebuttal evidence must be considered in connection with the surrebuttal evidence that the defendant intended to offer and the other evidence offered by the State in its case in chief. As hereinbefore pointed out, according to defendant, Terry Gatlin would deny making the statement attributed to her by Bell and Payne. Her testimony on surre-buttal, according to defense counsel would only be a reaffirmation of what she had said before. Furthermore, the State offered evidence in its case in chief from two independent witnesses, Sharon Rogers and Patsy Payne, both of whom testified that they had witnessed Gatlin shoot Carter in the leg while the two combatants were separated and standing away from each other. Their testimony corroborated that of the victim, Carter. Carter testified that he was shot in the leg when he and Gatlin were approximately ten feet apart.

When considering the nature of the surrebuttal testimony intended to be elicited by the defendant, together with the State’s evidence when it presented its case in chief, we conclude that the trial judge’s refusal to permit the defendant the opportunity to offer surrebuttal testimony was not an abuse of the trial court’s broad discretion and, in the context of the surrounding circumstances, was not reversible error. See State v. Snoddy, supra.

ASSIGNMENT OF ERROR NO. 5

In the second assignment of error on appeal, defendant complains that the rebuttal evidence was otherwise inadmissible as hearsay. We find no merit to defendant’s claim. The ruling of the trial court admitting the evidence over defendant’s objection was correct. The statements attributed to defendant’s sister qualified as excited utterances admissible despite the bar against hearsay. See LSA-R.S. 15:434; State v. Henderson, 362 So.2d 1358 (La.1978).

ASSIGNMENT OF ERROR NO. 6

Likewise, we find no merit to defendant’s argument that since the witnesses failed to adhere to the trial court’s admonition not to discuss their testimony with each other, the rebuttal evidence was inadmissible. We note that defendant did not contemporaneously object to Bell’s testifying but later requested that the court give a special charge to the effect that if the jury found that the witness had violated sequestration, then the jury could conclude that the violation had influenced the witnesses’ testimony. The trial judge properly rejected this special charge as an improper statement of the law. Furthermore, the violation of sequestration did not appear to otherwise warrant remedial action by the trial judge. There was no evidence that the violation influenced Bell’s testimony. See LSA-C.Cr.P. Art. 764; State v. Edsall, 385 So.2d 207 (La.1980).

Having concluded that any error in denying defendant’s motion to permit surrebuttal testimony was not reversible, we affirm the jury verdict.

SCHOTT, J. ad hoc, concurs in the result.

       Judges James C. Gulotta, John C. Boutall and Patrick M. Schott of the Court of Appeal, Fourth Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice John A. Dixon, Jr. and Associate Justices Pascal F. Calogero, Jr., James L. Dennis and Jack Crozier Watson.

      . Defendant was initially charged with attempted first-degree murder in violation of LSA-R.S. 14:27 and 14:30. This trial before a jury of twelve resulted in a mistrial. The questions on appeal before this court result from defendant’s retrial and conviction of aggravated battery.


author: BOUTALL, Justice ad hoc.

text:
    STATE of Louisiana v. Clyde B. PROVO
    No. 80-KA-2035.
    Supreme Court of Louisiana.
    April 6, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Samuel C. Ca-shio, Dist. Atty., Houston C. Gascon, III, Jack Marionneaux, Asst. Dist. Attys., counsel for plaintiff-appellee.
    John E. Bride, and C. Jerome D’Aquila, New Roads, of Indigent Defender Office, counsel for defendant-appellant.
   BOUTALL, Justice ad hoc.

Clyde Provo was convicted of the crime of simple burglary in violation of LRS 14:62 and was sentenced to serve nine years imprisonment with the Department 'of Corrections. He appeals giving two assignments of error, each having to do with the admissibility of statements made by other alleged participants in the crime.

The general facts are that on January 11, 1980, at some time between 8:00 A.M. and 12 noon, the residence of T. N. Patin in the City of Plaquemine was forceably burglarized and a number of his possessions were stolen, including those most relevant to this trial, a color television set, a shot gun and a Safari lantern. The burglary was alleged to have been done by the defendant, Clyde B. Provo in concert with Ernest Mitchell and Roy McKnight pursuant to a plan to steal some readily salable object and obtain some money. At trial the State called Ernest Mitchell, who testified that he and the defendant, Clyde Provo and a third man, Roy McKnight were riding around in Mitchell’s car when suddenly McKnight told Mitchell to let him and Provo out in front of a certain house on Millie Street. McKnight told Mitchell to drive around the block to return to pick them up. When Mitchell returned some five minutes later, he saw the stolen objects in the driveway of the premises and Provo directed him to back the car into the driveway in order that the objects may be loaded into Mitchell’s car.

The three men loaded the articles into the car and then immediately drove to the house of an acquaintance named “Goose” whom they thought to be a customer to purchase the television set. During the course of these negotiations, Mitchell made certain statements which were objected to by defense counsel and formed the basis of the first assignment of error. Unable to sell the television set to “Goose” they were referred to Paul Nelson and turned over the set to him for sale. Several days later the police investigation turned up information which led to the issuance of search warrants for the residences of these three men, leading to the arrest of defendant Clyde Provo on January 28, 1980. His trial and conviction followed.

The first assignment of error is directed to hearsay testimony given by Ernest Mitchell when testifying as a state witness concerning statements allegedly made by Roy McKnight to the prospective purchaser of the television set, “Goose” shortly after the victim’s house had been broken into and the set taken. Mitchell testified that after the three men had loaded the stolen articles into the back of his car they went directly to “Goose’s” house and Roy McKnight asked “Goose” if he wanted a television set. The importance of this statement is to help show that both Provo and McKnight had knowledge of and participated in the plan to steal such a set and sell it to “Goose”. It is the contention of both McKnight and Provo that Mitchell had the television in the trunk of his car, and they knew nothing about it, simply going for a ride with Mitchell.

The State concedes that this testimony constitutes hearsay which is generally inadmissible under LRS 15:434, but argues that this particular statement falls within the res gestae exception, LRS 15:447, which reads:

“Res Gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of - the res gestae is always admissible in evidence.”

The defense argues that McKnight’s statement to “Goose” did not arise from the immediate pressure of the crime, that the five to ten minute interval between the actual fact of burglary and the offer to sell the television removes that offer from the res gestae.

LRS 15:448 further defines res gestae as follows:

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

The definition of “concomitant” found in Webster’s Third New International Dictionary reads “accompanying or attending esp. in a subordinate or incidental way.” We point out that the crime of burglary is not simply the unauthorized entering of the dwelling, but must also demonstrate an intent to commit a felony or any theft therein. The evidence shows that this burglary and theft was perpetrated for the purpose of obtaining a television set which could be sold immediately, and that the perpetrators in concert and together loaded the set in an automobile and drove without stopping or separating in any way to attempt to sell it. The definition thus precisely defines the relationship which the offer to sell the television bears to the burglary, and accordingly the testimony falls with the definition of res gestae. The statement was properly admitted.

At the same time we also point out that the statement made falls within the statutory exception to the hearsay rule provided in LRS 15:455:

“Each coconspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his codefendant. But to have this effect a prima facie case of conspiracy must have been established.”

In State v. Dupree, 377 So.2d 328, 330 (La.1979), this court observed:

“Before a co-conspirator’s declaration may be introduced under this exception, a prima facie case of conspiracy must have been established and it must be shown that the declaration was made in furtherance of the common enterprise and during its continuation.”

At the time of the objection the State had established a prima facie case of conspiracy through Mitchell’s testimony. According to him, the three had decided to raise some money and went through with the burglary and subsequent attempts to dispose of the stolen property. The facts testified to by Mitchell show a conspiracy as defined by LRS 14:26, and the subsequent evidence of other witnesses and the disposition of the stolen property reinforces that testimony.

The second assignment of error pertains to the trial court allowing detective Edward N. Engolia, Jr. of the Iberville Sheriff’s office to give a summary of an oral statement made by Roy McKnight after his arrest on February 9, 1980. The statement was objected to on the ground that it was hearsay evidence, and no prima facie case of conspiracy had been established to permit its introduction as an exception thereto. This same basis of objection is argued to us on appeal.

As we noted in our ruling on the previous assignment of error, a prima facie case of evidence had been established at the time of the introduction of a prior statement during the testimony of Mitchell. After introduction of that statement several other witnesses had testified reinforcing the testimony of Mitchell, and the existence of a conspiracy and concert of action is even more firmly established. Accordingly, we conclude that the trial judge was correct in his ruling upon the basis of the objection.

Assuming, but not deciding, that some other ground of objection to the introduction of the statement may exist, we feel no need to reach other issues which were neither raised in objection at trial nor argued in brief before us. We refer to the rule set out in Code of Criminal Procedure 841 as follows:

“An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.”

This court has frequently stated that the defendant must state the basis for his objection when he makes it, so that the trial judge has the opportunity to rule on it and prevent an error or cure an error. State v. Dupar, 353 So.2d 272 (La.1977). When objecting, counsel must point out to the trial court the specific error which the court is making. State v. Powell, 325 So.2d 791, 794 (La.1976). Had a valid objection been made at trial, the court would have had an opportunity to consider the matter and thus have an opportunity either to not make the error or correct it. Similarly, we would have had some basis in the record for a consideration as to the effect of the ruling upon the defendant’s rights. Accordingly, in this case, we restrict our ruling to the issue as presented to us.

For the reasons expressed, the conviction and sentence are affirmed.

SCHOTT, Justice ad hoc, concurs in the result.

CALOGERO, J., dissents and assigns reasons.

      . Judges Gulotta, Boutall and Schott of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon, Justices Caloge-ro, Dennis and Watson.


text:
    STATE of Louisiana v. Ricky FARBE.
    No. 80 K 2464.
    Supreme Court of Louisiana.
    April 6, 1981.
    Michael J. Johnson, Cottonport, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Eddie Knoll, Dist. Atty., Cliff E. Laborde, III, Asst. Dist. Atty., for plaintiff-respondent.
   BOUTALL, Justice ad hoc.

Ricky Farbe was convicted of violating Louisiana Revised Statute 14:74, Criminal Neglect of Family, i. e., his wife and two year old son. He was given a suspended sentence and placed on probation conditioned upon paying $100 a month support for his wife and $100 for his child. The sole issue is the sufficiency of the evidence to sustain the conviction.

The Louisiana Constitution of 1974, Article 5, § 5(C) provides that in criminal matters this court’s appellate jurisdiction extends only to questions of law. In a series of recent cases, this court has adopted the rule applied by the U.S. Supreme Court in its consideration of Federal Constitutional habeas corpus application from state convictions as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State v. Hartman, 388 So.2d 688 (La.1980); State v. Harveston, 389 So.2d 63 (La.1980); State v. Morgan, 389 So.2d 364 (La.1980); and especially applicable here, State v. Guillot, 389 So.2d 68 (La.1980). In Jackson v. Virginia, the court stated, 99 S.Ct. 2789, the following:

“ * * * Instead the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. 356, 362, 92 S.Ct. 1620, 1624, 32 L.Ed.2d 152” * * * *

The court expressed its holding at page 2792:

“[10] We hold that in a challenge to a state criminal conviction brought under 28 J.S.C. § 2254 — if the settled procedural pre-requisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”

Farbe was charged with criminal neglect of his wife and child on or about August 17, 1980 and since. The only witness produced by the State was Eileen Farbe, his wife. She testified that she and defendant were married on February 9,1979, had one child, Jerami, now two years old, that the three of them lived with her father at his house, that Farbe left on August 17,1980, that he had never given them anything for support ever since, a period in excess of 30 days. Since the time Farbe left, she and her child were compelled to live on the generosity of her father who continued to give them food and shelter, and who paid for some medical expenses. She acknowledged that her father would not let them starve, nor would he turn them out of his home, but that he could not provide additional expenses such as clothing and medical expenses. At that time the child needed medical treatment, and her father had paid in excess of $100, and the bills were continuing to mount, and she felt that she could not continue to require her father to bear such heavy burdens. She had no other assets or income, or means of support.

We conclude that these facts are sufficient to meet the requirements oí Jackson v. Virginia, supra. The law does not require that the wife and child be reduced to begging from relatives and friends for continued existence. The evidence shows that this defendant was gainfully employed and could furnish support for his wife and child. His attempt to shoulder that responsibility was only to offer to provide an account of some sort at a grocery store to permit them to buy groceries of an unknown amount, and to offer to reimburse some of the medical bills. We are unable to ascertain from the record, nor should we be required to ascertain on this examination how much weight the judge assigned to these items in his consideration of the evidence. The test is satisfied if any rational trier of fact, viewing the evidence in the light most favorable to the prosecution could have found the necessary proof of guilt.

The conviction and sentence are affirmed.

DIXON, C. J., and CALOGERO and DENNIS, JJ., dissent.

      . Judges Gulotta, Boutall and Schott of the Court of Appeal, Fourth Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon, Justices Caloge-ro, Dennis and Watson.