author:
DENNIS, Justice. TATE, Justice, CHARLES A. MARVIN, Justice Ad Hoc.
     DENNIS, J., DENNIS, Justice,

text:
    BENTON CASING SERVICE, INC. v. AVEMCO INSURANCE COMPANY.
    No. 63946.
    Supreme Court of Louisiana.
    June 25, 1979.
    Rehearing Denied Nov. 1, 1979.

      Stanwood R. Duval, Jr., Duval, Arcen-eaux, Lewis & Funderburk, Houma, for plaintiff-applicant.
    Robert E. Peyton, Christovich & Kearney, New Orleans, for defendant-respondent.
   DENNIS, Justice.

Benton Casing Service, Inc. (Benton), a Louisiana corporation domiciled in Terre-bonne Parish, brought suit against its insurer, Avemco Insurance Company (Avemco), a foreign corporation' authorized to do business in Louisiana, to recover for the loss of an airplane. Avemco denied coverage on the ground that the pilot operating the aircraft at the time of the crash was not named by the policy as a pilot during whose operation the policy applied.

On September 1, 1976, Harry Roth, an employee of Benton, took off from Lafayette Airport in a Cessna 185 amphibian owned by Benton and insured by Avemco. Roth testified that the plane’s engine lost power during take-off, and that he was unable to return to the field before crashing. At the time of the crash Roth was not named as one of the pilots during whose operation of the plane the policy was applicable. Nevertheless, the trial court awarded the plaintiff recovery in the amount of $42,500, the value of the plane prior to the crash, less its salvage value, together with interest and costs. The court of appeal reversed the judgment of the trial court, holding that coverage was not afforded by the policy during Roth’s flight. In its opinion, the intermediate court treated the policy provision limiting coverage to flights by named pilots as a “warranty, representation or condition” within the meaning of the “anti-technical statute,” La.R.S. 22:692, see Rodriguez v. Northwestern National Insurance Co., 358 So.2d 1237 (La.1978), but nevertheless refused to apply the statute to permit recovery by the plaintiff on the policy.

We granted writ of certiorari to consider the appellate court’s opinion that La.R.S. 22:692, which prevents insurance companies from denying coverage because of a breach of a non-material “warranty, representation or condition,” applies only to losses by fire. Upon closer examination, however, we conclude that the court of appeal erred in tacitly treating the pertinent provision of the policy as a “warranty, representation or condition.” The policy provision in question is instead an enforceable exception to coverage or liability. Therefore, La.R.S. 22:692 is not applicable to the type of contractual provision involved herein, but the court of appeal nevertheless reached the correct result.

A warranty is a statement on the face of the insurance contract whereby'the insured expressly contracts as to the existence of certain facts, circumstances or conditions essential to the validity of the contract of insurance. See 12 G. Appleman, Insurance Law and Practice, §§ 7341-49, 7353-59 (1943); 7 G. Couch, Cyclopedia of Insurance, §§ 35:2, 36:1-8 (2d ed. R. Anderson 1961); 43 Am.Jur.2d, Insurance, § 744. A representation is an oral or written statement by the insured made prior to the completion of the insurance contract giving information as to some fact or state of facts with respect to the subject of the insurance, which is intended or necessary for the purpose of enabling the insurer to determine whether it will accept the risk, and at what premium. 12 G. Appleman, Insurance Law and Practice, .§§ 7291-93, 7341-49 (1943); 7 G. Couch, Cyclopedia of Insurance, § 35:2-3, 5-13 (2d ed. R. Anderson 1961); 43 Am. Jur.2d, Insurance, § 734. A condition precedent is one that must be performed before the contract becomes effective and calls for the happening of some event or the performance of some act after the terms of the contract have been agreed upon before the contract shall be binding on the parties. 12 G. Appleman, Insurance Law and Practice, § 7352 (1943); 7 G. Couch, Cyclopedia of Insurance, § 36:46-47 (2d ed. R. Anderson 1961); 43 Am.Jur.2d, Insurance, § 755. A condition subsequent presupposes an absolute obligation under the policy, and provides that the policy shall become void or its operation defeated or suspended, or the insurer relieved wholly or partially from liability, upon the happening of some event or the doing or omission of some act. 7 G. Couch, Cyclopedia of Insurance, § 36:48 (2d ed. R. Anderson 1961); 43 Am.Jur.2d, Insurance, § 755.

In denying coverage in the present case, Avemco relies on the following provision contained in the declarations section of the insurance policy:

“Item 7. PILOTS: This policy applies when the aircraft is in flight, only while being operated by one of the following pilots (indicated by HI below) who, (1) holds a valid and effective Pilot and Medical Certificate, (2) has a current biennial flight review and (3) if carrying passengers, has completed at least three Take-Offs and Landings within the preceding 90 days in an aircraft of the same make and model as the insured aircraft:
“H (a) SAMMY WHATLEY
“□ (b)
“LH (c) Any Commercial Pilot in the employ of an F.A.A. approved Aircraft Repair Station in connection with inspections or repairs to be or that have been performed on the insured aircraft or by any Federal Aviation Administration Inspector or any Certified Flight Instructor for the purpose of instructing anyone named in Item 7(a).”

This statement in 'the policy’s declarations is not a warranty, representation, condition precedent or condition subsequent. By this provision the insured did not warrant the existence of facts essential to the validity of the contract or represent prior to the contract information useful or necessary to the insurer in estimating the risk and setting the premium. Nor did the provision impose a condition precedent or subsequent, the happening of which would prevent the policy from coming into effect, on the one hand, or render it void on the other.

Rather, item 7 is an exception or exclusion of certain risks from coverage by the policy; it provides that the insurance provided by the policy will apply only when the aircraft is in flight and is being operated by the pilots designated.

Insurance companies have the right to limit coverage in any manner they desire, so long as the limitations are not in conflict with statutory provisions or public policy and so long as the limitations are unambiguous and easily understandable. Oceanonics, Inc. v. Petroleum Distributing Co., 292 So.2d 190 (La.1974); Muse v. Metropolitan Life Ins. Co., 193 La. 605, 192 So.2d 72 (1939). The provision at issue in the instant case is not ambiguous; nor does it violate any statute or public policy of the state. Because there are relatively few individuals qualified to safely operate an aircraft, and because of the enormous risk inherent in the improper operation of an aircraft, the insurer has a legitimate interest in knowing precisely who will be operating the insured aircraft in order that it may evaluate the qualifications of the proposed pilots and exclude risks which it will not insure. See National Insurance Underwriters v. Carter, 17 Cal.3d 380, 131 Cal.Rptr. 42, 551 P.2d 362 (1976). Moreover, the insurer has a legitimate interest in knowing how many pilots will be using the insured aircraft, and, in fact, an underwriter for Avemco testified that the addition of a pilot to the policy involved herein could increase the risk and the premium charged to the insured.-

It is true that the limitation stated in item 7 of the declarations does not appear in the section of the policy headed “exclusions.” However, the language used in the provision and its prominent location in the declarations section of the policy clearly apprised the insured that the policy would apply only when the aircraft was in flight and while being operated by one of the designated pilots. Courts in other jurisdictions have consistently given effect to unambiguous policy provisions which state that the aircraft will not be covered while being operated by a pilot not named in the policy, see, e. g., Smith v. Orion Insurance Co., 298 F.2d 528 (10th Cir. 1961); Roberts v. Underwriters at Lloyds London, 195 F.Supp. 168 (S.D.Idaho, 1961); National Insurance Underwriters v. Carter, supra, or by a pilot who does not have the qualifications specified in the policy, see, e. g., Be-quette v. National Insurance Underwriters, Inc., 429 F.2d 896 (9th Cir. 1970); Pacific Indemnity Co. v. Kohlhase, 9 Ariz.App. 595, 455 P.2d 277 (1969); Jim Hawk Chevrolet-Buick, Inc. v. Insurance Company of North America, 279 N.W.2d 466 (Iowa S.Ct. 1978); Des Marais v. Thomas, 147 N.Y.S.2d 223 (N.Y.Sup.Ct.1955). See also, Annot., 48 A.L.R.3d 1120, 1136-1143, §§ 6-9 (1973).

For the foregoing reasons, the judgment of the court of appeal is affirmed.

AFFIRMED.

TATE, J., dissents and assigns reasons.

DIXON and CALOGERO, JJ., dissent.

TATE, Justice,

dissenting.

I respectfully dissent.

Avemco’s policy, Item 7, provided that it applied only as to named pilots who met certain conditions (e. g., held a valid and effective pilot license and medical certificate, etc.). The pilot, Harry Roth, met these requirements. By a simple telephone call, the insured Benton could have added (or, rather, substituted) this employee’s name to the list, without any change in premium or change in the risk of Avemco.

In the past, substitution of pilots had been handled very informally, without any strict insistence by the insurer that it be informed each time an old pilot left the employment and a replacement pilot was hired or re-employed.

Under all of these circumstances, in my opinion, the trial court correctly held there was coverage.

It is essentially uncontroverted that the technical failure to telephone the insurer that its employee, Roth, would be the pilot of its plane, did not contribute to the loss and did not increase the moral or physical hazard under the policy — that a simple telephone call would have listed him substituted as the pilot, without any increase in premium.

The technical failure to list Roth as pilot occurred under the following conditions: The policy had been renewed November 19, 1975 through November 19,1976, with Sammy Whatley as the only listed pilot. On January 9, 1976, Benton wrote Avemco to state that Whatley was no longer affiliated but that Benton had temporarily employed a Mr. Billy Kirkpatrick. On September 1, 1976, the accident occurred while Roth was piloting the plane — and Roth was apparently the permanent replacement for Whatley and Kirkpatrick. He met all the qualifica-. tions, and the record does not indicate that there would have been an increase in premium because of his substitution for Whatley.

The insurer contends that it only covered the plane when Whatley was piloting it, even though Whatley was no longer in the employ of Benton, its insured. It is unwilling to afford coverage to Roth, who was piloting the plane in replacement for What-ley, because Benton did not telephone Avemco and inform it of the identity of the pilot replacing Whatley, even though Roth met all the qualifications for coverage. In effect, the company wishes to collect its premium for affording protection, but to deny any protection whatsoever to the plane when piloted by Whatley’s replacement because of the technical failure to inform it of the name of his replacement— even though, due to the termination of Whatley’s employment, there would in effect be no coverage afforded.

It seems to me to be hypertechnical to hold that there is no coverage due to noncompliance with an incidental policy requirement, not strictly enforced in the past, where the insurer was subjected to no additional moral or physical hazard, and where indeed (under these facts) the enforcement of this policy provision serves no useful end but instead defeats the purpose of the policy for which the insurer collected premiums, namely to protect itself against the loss of its airplane. Cf. La.R.S. 22:692, Rodriguez v. Northwestern National Insurance Company, 358 So.2d 1237 (La.1978).

ON REHEARING

CHARLES A. MARVIN, Justice Ad Hoc.

After the initial consideration of this insurance coverage case on a writ of review directed to the 1st Circuit Court of Appeal, a rehearing was granted to allow for rear-gument before seven justices.

The issue is whether an aircraft policy covers damage sustained by plaintiff’s Cessna aircraft in a crash when it was piloted by an employee of plaintiff who was not named on the declarations page of the policy, but who was a properly certified and licensed pilot.

The insured aircraft, a 1973 Cessna 185 amphibian, FAA No. N51BC, crashed when taking off from the Lafayette airport in September 1976 while being flown by Harry Roth, plaintiff’s employee. Roth was not named as a pilot in the declarations page of the policy, but had the qualifications which the insurer required of a pilot who was named in the declarations.

Coverage C of the policy obligates the insurer

“to pay for all loss or damage to the aircraft while in flight . . . ”

but Item 7 of the declarations provides that

“This policy applies when the aircraft is in flight, only while being operated by one of the following pilots . . . who holds a valid and effective [FAA] . . . certificate . . . ”

Without assigning reasons, the trial court found coverage. The Court of Appeal found that Item 7 was not an exclusion of coverage, but a warranty, representation, or condition within the meaning of LRS 22:692, an “anti-technical statute” which is designed to preclude the insurer’s denying coverage by asserting defenses not materially related to the risk. Rodriguez v. Northwestern Nat. Ins. Co., 358 So.2d 1237 (La.1978). The Court of Appeal nonetheless reversed the trial court on the basis that LRS 22:692 applied only to fire losses and would not be extended to cover the crash loss in this instance.

On original hearing, this court was evenly divided on the question of whether Declarations Item 7 was an exclusion of coverage otherwise afforded by the policy. On rehearing, we find that Declarations Item 7 is not an exclusion, but is in the nature of a warranty or representation by the insured that the only pilot who would be flying the aircraft would be declared to the insurer and that all pilots so declared would have the required FAA certificates. We find that LRS 22:619(A) is also an anti-technical statute and that it is applicable to preclude the insurer’s denying of coverage in this instance because it has not been proved that the insured’s statement, however false, to the insurer about who would be piloting the aircraft, was made with the intent to deceive. Accordingly, we reverse the Court of Appeal and reinstate the judgment of the trial court.

FACTUAL BACKGROUND

The plaintiff-insured, a corporation servicing the oil and gas industry, first acquired an airplane in 1972. This plane was also a Cessna 185. The Cessna involved here (FAA No. N51BC), was acquired in 1973. The only application contained in this record is one which was signed by the insured for the defendant insurer, Avemco, dated December 3, 1975. This application refers to a Cessna 421 Airplane, FAA No. N1975G, and lists two pilots, Whatley and Acklen.

The policy in question here on the Cessna (N51BC) is for the year November 19, 1975, to November 19, 1976. It provides for $50,-000 in all risks coverage, called Coverage C, with $20,000 being shown as an encumbrance on the airplane with a loss payable clause to a Baton Rouge leasing corporation. Whatley was the only pilot named in Item 7 of the declarations page when this policy had its inception on November 19, 1975. Item 7 of the declarations page was later amended by endorsement.

By its letter of January 9, 1976, the insured informed Avemco of a “new” pilot, LaBruyere, and of a “temporary” pilot, Kirkpatrick. This letter did not refer to a policy number or to a particular airplane. The endorsement of this policy, made effective at 12:01 a. m. January 9, 1976, but dated more than a month later, amended Item 7 of the declarations page of the policy (which originally named Whatley), and named only Kirkpatrick as a pilot. La-Bruyere was not mentioned. This was the last endorsement of the policy before the accident in September 1976.

Mrs. Samaha, an employee before 1973, and since 1973, the office manager, of the corporation, testified that several pilots had flown the insured Cessna amphibian (N51BC) as well as the other aircraft owned by plaintiff. Henry McLaughlin and Jerry Acklen flew the first Cessna. Acklen was called back to the corporation to fly the new Cessna (N51BC) in 1973. Sammy Whatley flew the Golden Eagle, which we deduce was a larger and more expensive aircraft (FAA No. N1975G). Mrs. Samaha mentioned that Ken Vicknair and John La-Bruyere were strictly’ pilots and that other pilots also served as salesmen. She did not otherwise state which of these pilots flew what airplane or airplanes.

Mrs. Samaha had the responsibility of administering the insurance matters of the corporation, including motor vehicle and workmen’s compensation insurance. She assumed that the aircraft insurance coverage was similar to motor vehicle insurance. She stated that sometimes on the instruction of a pilot, she would telephone a Mr. Coble at Avemco (Avemco’s aviation underwriter, who also testified), to inform Avem-co of the fact that a particular pilot was flying the airplane. According to Mrs. Samaha, Coble would inquire of her as to the pilot’s qualifications and possession of the proper certification. Coble would then instruct her to follow up the telephone call with a written communication. Even though it appears that other qualified pilots besides Kirkpatrick were flying the aircraft after and probably before January 9, 1976, the only pilots formally named in the declarations page of the policy are Whatley (November 19, 1975, to January 9, 1976) and Kirkpatrick, after January 9, 1976. Even though LaBruyere’s name was sent to Avemco with Kirkpatrick’s name on January 9, 1976, there is no endorsement of the policy in question which names LaBruyere as a pilot. The insured corporation does not contend that Mrs. Samaha telephoned or wrote Avemco about Harry Roth piloting an airplane.

Avemco’s underwriter, Coble, generally corroborated Mrs. Samaha’s testimony about the telephone conversations and the procedures followed by Avemco. Harry Roth testified as to his certification by the FAA and the number of hours he had flown in this type airplane. His certificates are in the record. At an earlier time Roth had received a citation by the FAA for an accident, but his license or certificate had not been revoked or suspended.

The testimony of Coble is to the effect that if Mrs. Samaha had telephoned him about Harry Roth flying the insured aircraft, Harry Roth would have been named by endorsement to the policy, as a pilot. The naming of Roth perhaps could have resulted in an increased premium being charged to the insured. The coverage of an insurance policy is not affected, however, by a finding that additional premiums may be owed by the insured. See LeJeune v. State Farm Mutual Automobile Ins. Co., 107 So.2d 509 (La.App. 1st Cir. 1958); Couch on Insurance 2d, § 15:81.

THE INSURANCE CONTRACT

The insurance contract is to be construed as a whole. Labels and headings given to the respective sections of the contract and the placement of the sections of the contract are pertinent to the inquiry of coverage, but one section or its placement is not to be construed separately and at the expense of disregarding other sections or placements. See Harmon v. Lumbermens Mutual Casualty Company, 247 La. 263, 170 So.2d 646 (1965); Hemel v. State Farm Mut. Auto. Ins. Co., 211 La. 95, 29 So.2d 483 (1947); Rancatore v. Evans, 182 So.2d 102 (La.App. 4th Cir. 1966).

While the wording of Declarations Item 3 is not in itself ambiguous, its application as an exclusion of coverage afforded by the policy renders the whole contract ambiguous. “[W]here a limitation of coverage or an exclusion is not placed where it ought to be placed or where it would be expected by the reader, such placement alone may create ambiguity.” 13 Apple-man, Insurance Law and Practice, Section 7403, p. 323 (1976). Anti-technical statutes have been enacted to preclude the insurer from denying coverage by use of complex policy provisions concerning facts the untutored insured would find relevant to his coverage. Rodriguez, supra. See LRS 22:692, 619(A), discussed infra.

The contract of insurance consists of the declarations page, the endorsements, and the printed policy. The policy consists of four pages and contains four sections: Insuring Agreements, Exclusions, Definitions, and Conditions. The policy states that the declarations page, with endorsements attached to it, is to be inserted between pages two and three of the policy. Provisions of the insurance contract which are pertinent to the circumstances of this case are reproduced in an appendix to this opinion.

The policy states that it is issued in reliance upon the truth of the statements and representations made by the insured in the application and declarations (preamble to policy, Conditions, par. 22) and that, subject to the terms of the policy, the insurer obligates itself to pay for all loss or damage to the aircraft while in flight. (Coverage C).

Loss of either airworthiness of the aircraft or certification of the pilot are conditions which suspend the effect of the guaranteed renewable, AER — 1,- endorsement. Similarly, there is an express exclusion of any coverage if the aircraft, while in flight, is not then certified as airworthy. Exclusion (g)(1). There is no provision in the exclusions section of the policy which suspends coverage to a pilot whose certification has been revoked or suspended, as in the case of the AER — 1 endorsement mentioned.

“Insured” is defined in par. Ill of the Insuring Agreements with respect to liability, Coverage A, as including any person using or responsible for the use of the aircraft with the permission of the named insured. The “Insured” is not defined for Coverage C purposes. Coverage C states that the insurer obligates itself

“To pay for all loss of or damage to the aircraft (a) while not in flight and (b) if specified as ‘Including In Flight’ in the declarations, while in flight, including disappearance in the event the aircraft is not reported or located within sixty (60) days after take-off.”

When Coverage C is construed with Exclusions (f), (g), and (h), and Item 3 of the Declarations, and notwithstanding Item 7 of the Declarations page, it is clear that the aircraft is insured against loss or damage which occurs as a result of its being flown by a thief or a person, whether or not a properly licensed pilot, who does not have the permission of the named insured to fly the airplane, unless that person holds under a bailment, lease or similar undertaking.

The policy itself states that it is intended to conform to state law. Conditions, par. 21. See CC Arts. 1945-1967; LRS 22:619(A), 654. See Rodriguez, supra.

Briefly stated, the law is to the effect that the insurer is required to clearly express exclusions to its insuring obligations and that any doubt or ambiguity is to be resolved against the insurer, against forfeiture, and in favor of what reason and probability dictate was intended by the parties with respect to coverage.

Whether a statement made by the insured in the negotiation of an insurance contract (in the application or in the declarations page) is labeled as a representation or as a warranty, the falsity of such a statement shall not be deemed material and shall not defeat coverage, unless it is shown that the false statement was made with the intent to deceive. LRS 22:619(A). The burden of proving this rests with the insurer. See Weeser v. Provident Mutual Life Insurance Co., 322 So.2d 230 (La.App. 4th Cir. 1975), writ refused.

In Indiana Lumbermens Mutual Insurance Co. v. Russell, 243 La. 189, 142 So.2d 391 (1962), it was contended that because a second automobile owned by the named insured was not described in the declarations page which had an entry blank for a second automobile and that because no entries were made in the premium column on the declarations page showing that a premium was payable on a second automobile, coverage — otherwise clearly provided in the policy provisions — should be limited to the one automobile described in the declarations which was the only vehicle the insured intended to insure and paid a premium to insure. This court answered:

“The flaw in counsel’s contention, we think, is that it would require that we amend the coverage clause of the contract to conform with the representations or declarations of the insured so as to supply the true intent of the parties. But, in the absence of fraud, we are not permitted to give this relief. For the insuring clause, being free from any ambiguity, is the law between the parties and must be enforced as written. The fact that the declaration of the insured is in conflict with the coverage clause does not, of itself, lessen the coverage given under the policy or justify modification by the Court. Nor is the policy to be voided by reason of a misrepresentation on the part of the insured for, under R.S. 22:619 subd. A, it is provided ‘ * * * no oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or avoid the contract or prevent it from attaching, unless the misrepresentation or warranty is made with the intent to deceive.’ (Italics ours).” 142 So.2d at p. 394 (Emphasis supplied)
In Rodriguez, supra, this court observed:
“Due to the increasing complexity of insurance policies and to the greater danger of overreaching by insurers — ‘their gaining an unconscionable advantage by the use of complex policy provisions concerning facts that the untutored purchaser would be surprised to find relevant to his insurance coverage,’ — many states, including Louisiana, enacted ‘anti-technical’ statutes designed to preclude denial of coverage through the assertion of defenses not materially related to the risk.” 358 So.2d at p. 1240

LRS 22:692, which relates to policies of fire insurance, is not the only statute expressive of the policy of this state against forfeiture of insurance coverage. The provisions of LRS 22:619(A) and (B) also express this policy and should be categorized with section 692 as anti-technical statutes. This Court has not been hesitant in implementing this statutory policy and has liberally applied these statutes in many cases to benefit the insured. For instance, in Rodriguez, section 692 was extended to apply to a policy other than strictly a fire policy which covered a fire loss. See also Lee v. Travelers Fire Ins. Co., 219 La. 587, 53 So.2d 692 (1951) and Taylor v. Audubon Ins. Co., 357 So.2d 912 (La.App. 4th Cir. 1978), writ refused.

With the exception of a 3” line marked “company use only” which contains about 25 numbers and three letters, the declarations page attached to the policy contains in the largest part, information which could only have been obtained from the named insured, who is the insured, the aircraft, the pilot, the lienholder, and the purpose for which the aircraft will be used. Some policy provisions directly relate to some declarations. Besides those mentioned, compare Declarations Item 6 with Insuring Agreement par. VIII. Coverage C relates directly to Item 3 of the Declarations. Nothing, however, in the policy itself, affording and excluding Coverage C, directly relates to Item 7 of the Declarations. The definition of insured for Coverage A relates to Item 7, but does not exclude coverage to a qualified certified pilot who flies the aircraft with the permission of the named insured.

The direct relationship or the absence of direct relationship of these pertinent provisions of the policy become obvious:

DECLARATIONS:

INSURING AGREEMENTS:

I Coverage A — Liability (Including or Excluding Occupants) — Bodily Injury and Property Damage. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including mental anguish or death resulting therefrom, sustained by any person, excluding any occupant unless specified as “including occupants” in the declarations, or injury to or destruction of property, including the loss of use thereof, caused by an occurrence and arising out of the ownership, maintenance or use of the aircraft.
Ill Definition of Insured. With respect to the insurance for Coverage A the unqualified word “insured” includes the named insured and also includes any person while using the aircraft and any person or organization legally responsible for the use thereof, provided the actual use of the aircraft is by the named insured or with his permission. The insurance with respect to any person or organization other than the named insured does not apply:
(a) to any person or organization, or to any agent or employee thereof, engaged in the manufacturing of aircraft, aircraft engines or aircraft accessories, or operating an aircraft repair shop, airport, hangar or aircraft sales agency, with respect to any occurrence arising out of the manufacture or the operation thereof;
(b) to any employee with respect to bodily injury, sickness, disease or death of another employee of the same employer, injured in the course of such employment;
(c) with respect to bodily injury, sickness, disease or death of (1) a spouse, parent or child of such person or (2) a named insured;
(d) to any person receiving instruction, either dual or solo, unless specified in Item 7(a) of the declarations. Coverage C — All Risks (Including or Excluding In Flight). To pay for all loss of or damage to the aircraft (a) while not in flight and (b) if specified as “Including In Flight” in the declarations, while in flight, including disappearance in the event the aircraft is not reported or located within sixty (60) days after take-off.

DEFINITIONS:

3. In Flight. The term “in flight” means the time commencing when the aircraft moves forward in attempting to take-off and continuing thereafter until it has completed its landing run.

EXCLUSIONS:

This policy does not apply:

(f) Under Coverage C to loss or damage (3) due to conversion, embezzlement or secretion by any person in possession of the aircraft under a bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance;
(g) Under Coverages A, B and C to any aircraft, while in flight,
(1) not bearing a valid and currently effective “Standard” Airworthiness Category Certificate issued by the Federal Aviation Agency, or
(2) operated by a Student Pilot carrying passenger(s):

CONDITIONS:

22. Declarations — All Coverages
By acceptance of this policy the named insured agrees that the statements in the application and declarations are his representations and agreements, that this policy is issued in reliance upon the truth of such representations and that this policy embodies all agreements existing between himself and the company or any of its representatives relating to this insurance.

The term approved pilot does not appear anywhere in the policy as limiting coverage. It only appears as a heading to Declarations Item 7. If it be assumed that Item 7 is an exclusion, the language of Item 7 does not limit its effect to excluding Coverage C crash loss, but to all other coverages A and C when the loss, whether fire, theft, personal injury to a passenger or whatever, occurs when the aircraft is being piloted by someone not named in the declarations. At best, when Item 7 is construed as an exclusion with the whole of the contract, the contract becomes extremely ambiguous.

In the light of the principles mentioned and of the established state policy, we find that Item 7 of the declarations is not an exclusion, but is a statement by the insured made in the negotiation of the contract, that the only pilot who would be flying the aircraft was Kirkpatrick and that he possessed the proper FAA certification. This statement, however false it may have been, is not to be considered material to the risk and is not to a void the coverage afforded, unless it was made with the intent to deceive. LRS 22:619(A).

This record indicates not only no deceptive intent on the part of the insured, but establishes to the contrary, that the business insureds who own aircraft, as in this particular experience of the insurer, do change or add pilot-employees during the policy period. Avemco’s underwriter testified that businesses who own airplanes and their respective pilots were an impatient lot and usually used the telephone to inform him (the insurer) of who was flying what airplane.

Even assuming then that the insured’s declaration that only Kirkpatrick would be flying the aircraft is material to the risk the insurer accepted, the contract expressly and impliedly contemplates that as the hazard might increase, the insured or lienholder-loss payee would pay additional premiums. See AEE-11 endorsement. Section 619(A) states, however, that such a statement shall not be deemed material and shall not avoid the policy unless the statement is made with intent to deceive.

Coverage in these circumstances is clearly provided in Coverage C of the policy. The aircraft is insured against loss or damage while in flight. This coverage was obtained by the insured and agreed to by the insurer upon the insured declaring that the aircraft would be piloted by a named pilot who had the qualifications contemplated by both parties. It is shown that in practice, the named pilot was changed or that other pilots were named from time to time. In each instance, according to our understanding of the insurer’s experience, the crucial question by the insurer was the pilot’s qualifications, and not his or her name. The question was not from the insured to the insurer, “Will you allow this pilot to fly the aircraft?”, but from the insurer to the insured, “Does the man have the proper certificates to fly the aircraft?” Neither the inadvertent failure of the insured to notify the insurer before the crash that Harry Roth was flying the aircraft, nor the additional fact that Harry Roth had received a much earlier citation for a crash, avoids coverage under the circumstances. Harry Roth had the proper qualifications. The effect of the insured’s failure to declare a risk during the term of the policy is similar to the effect of the insured’s failure to declare a risk during negotiation. It is legally unimportant and not material to the risk unless the failure to declare was done with the intent to deceive. LRS 22:619(A). The fact that a declaration of the insured is in conflict with the coverage clause of the policy does not, of itself, lessen the coverage given under the policy. Russeli, supra. The fact that additional premiums might be owed by the insured does not affect coverage. See LeJeune, Couch, supra.

The judgment of the Court of Appeal is reversed and the judgment of the District Court is reinstated and is made the judgment of this court at the cost of respondent.

SUMMERS, C. J., dissents for the reasons assigned by DENNIS, J.

MARCUS, J., dissents, adhering to the original opinion of this court.

DENNIS, J.,

dissents and assigns reasons.

APPENDIX

“AIRCRAFT POLICY

“[Avemco] agrees with the insured . in consideration of the payment of the premium and in reliance upon the statements in the declarations and subject to all of the terms of this policy:

“INSURING AGREEMENTS

“I Coverage A — Liability . . . Bodily Injury and Property Damage. * *

“Coverage B — Medical Payments. * *

"Coverage C — All Risks ... To pay for all loss of or damage to the aircraft . . . while in flight, including disappearance in the event the aircraft is not reported or located within sixty (60) days after take-off.

“II Defense, Settlement, Supplementary Payments. * * *

“HI Definition of Insured. With respect to the insurance for coverage A, the unqualified word ‘insured’ includes the named insured and also includes any person while using the aircraft and any person or organization legally responsible for the use thereof, proyided the actual use of the aircraft is by the named insured or with [the named insured’s] permission. * * *

“IV Use of Other Aircraft. * * *

“V Temporary Use of Substitute Aircraft.

“VI Automatic Insurance for Newly Acquired Aircraft. If the named insured who is owner of the aircraft, shall acquire ownership of another fixed wing aircraft and so notifies the company within thirty (30) days following the date of its delivery to him and if the company insures all aircraft owned by the named insured at such delivery date, such insurance as is afforded by this policy also applies to such other aircraft as of such delivery date . . . with respect to Coverage C, only to the extent of the actual cost of the aircraft to the named insured, but not exceeding the highest limit of liability provided for any described aircraft.

“In the event a particular coverage is not provided for any other owned aircraft, the company shall not be deemed to insure all aircraft owned by the named insured in respect to said coverage. The insurance with respect to the newly acquired aircraft does not apply to any loss against which the named insured has other valid and collectible insurance. The named insured shall pay any additional premium required because of the application of the insurance to such newly acquired aircraft.

“VII Two Or More Aircraft. * * *

“VIII Policy Period, Territory, Purpose of Use. * * *

“EXCLUSIONS

‘This policy does not apply: * * *

‘(f) Under Coverage C, to loss or damage

“(1) to the aircraft which is due and confined to wear and tear, deterioration, freezing, mechanical or electrical breakdown or failure, unless such loss or damage is the result of other loss or damage covered by this policy,

“(2) while the aircraft is subject to any bailment lease, conditional sale, mortgage or other encumbrance not • specifically declared and described in this policy, or if the interest of the named insured becomes other than owner, or as stated in the declarations,

“(3) due to conversion, embezzlement or secretion by any person in possession of the aircraft under a bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance;

‘(g) Under Coverages A, B and C to any aircraft, while in flight, (1) not bearing a valid and currently effective ‘Standard’ Airworthiness Category Certificate issued by the Federal Aviation Agency, or (2) operated by a Student Pilot carrying passenger(s);

‘(h) Under Coverages A, B and C to occurrences, accidents or losses due to (1) capture, seizure, arrest, restraint or detention, or the consequences thereof or any attempt thereat, or any taking of the aircraft or any loss or damage thereof by any Government or governmental authority or agent (whether secret or otherwise) or by any military, navel, or usurped power, .

“DEFINITIONS

* * * * * *

‘3. In Flight. The term ‘in flight’ means the time commencing when the aircraft moves forward in attempting to take-off and continuing thereafter until it has completed its landing run.

“DECLARATIONS

“Item 1. Named Insured and Address * *

“Item 2. Policy Period: * * *

“Item 3. The insurance afforded is only with respect to such and so many of the following coverages as are indicated by specific premium charge or charges. The limit of the company’s liability against each such coverage shall be as stated herein, subject to all of the terms of the policy having reference thereto.

Liability . . . Bodily Injury & Property Damage . . . [premium shown]

“B Medical Payments . . . [premium not shown]

“C All Risks (including In Flight) . . . [premium shown]

“ENDORSEMENTS AER-1, AEE-11 . . . [premium shown]

“Item 4. The named insured is a (n) *() whose business is *(1) Individual, (C) Corpo- • ration, (P) Partnership, (0) Other

“Item 5. AIRCRAFT * * * [described]

“Item 6. PURPOSES: This policy applies to any use of the aircraft except (a) instruction of any person not specified in Item 7(a) below or (b) any use for which a charge is made to others or while the aircraft is rented or leased for a consideration.

“Item 7. [quoted in body of opinion]

“Item 8. Any loss under Coverage C is payable as interest may appear to the named insured and [lienholder named] * *

“Item 9. * * *

“[AER-1] ENDORSEMENT

“GUARANTEED RENEWABLE ***** *

“This guarantee, however, terminates in the event that

“A. The Named Insured fails to discharge when due any of his obligations in connection with the payment of premium for this policy or any installment thereof

“B. (1) The insured aircraft does not maintain a standard airworthiness certificate;

“(2) During the guarantee period, any pilot named in the policy,

“(a) Receives any Pilot’s Certificate suspension or revocation;

“(b) Does not maintain a valid Medical Certificate;

“(c) Who is a Student Pilot, does not obtain, a Private Pilot’s Certificate within one year after being named in the policy.

******

“[AEE-11] BREACH OF WARRANTY ENDORSEMENT ******

“Provided also, that the lienholder shall notify the company of any change of ownership or increase of hazard which shall come to the knowledge of said lienholder and, unless permitted by this policy, it shall be noted thereon and the lienholder shall, on demand, pay the premium for this increased hazard for the term of the use thereof; otherwise this policy shall be null and void.

******

“CONDITIONS

“1. Limits of Liability — Coverage A * * “Coverage B * * *

“2. Severability of Interest — Coverage A

“3. Action Against Company — Coverage A * * * “Coverage B * * *

“4. Financial Responsibility Laws — Coverage A * * *

“5. Assault and Battery — Coverage A* *

“6. Medical Reports’ Proof and Payment of Claim — Coverage B * * *

“7. Limit of Liability; Settlement Options; No Abandonment — Coverage C

“The limit of the company’s liability for loss shall not exceed the applicable limit of liability stated in the declarations, or,, in the case of partial loss or damage to the aircraft, what it would cost to repair the aircraft or replace parts thereof with others of like kind and quality. * * *

“8. Insured’s Duties When Loss Occurs— Coverage C * * *

“9. Appraisal — Coverage Q * * *

“10. Payment for Loss; Action Against Company — Coverage C * * *

“11. Rights Against Third Parties — Coverage C * * *

“12. Automatic Reinstatement — Coverage

Q * * *

“13. Assistance and Cooperation of the Insured — Coverages A and C * * *

“14. Subrogation — Coverages A and C

“15. Other Insurance — Coverages A and C * * * Coverage B * * *

“16. Notice — All Coverages

“In the event of an accident, occurrence or loss, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect. to the time, place and circumstances thereof, . . . shall be given by or for the insured to the company ... as soon as practicable. * * *

“17. Changes — All Coverages

“Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change in any part of this policy or estop the company from asserting any right under the terms of this policy; nor shall the terms of this poli; cy be waived or changed, except by endorsement issued to form a part of this policy, signed by a duly authorized representative of the company.

“18. Assignment — All Coverages

“Assignment of interest under this policy shall not bind the company until its consent is endorsed hereon; if, however, the named insured shall die, this policy shall cover (a) his legal representative as named insured . and (b) any person having proper temporary custody of the aircraft, as an insured, until the appointment and qualification of such legal representative; .

“19. Cancellation — All Coverages * * *

“20. Cancellation for Non-Payment of Installment Premium — All Coverages

“21. Terms of Policy Conformed to Statute — All Coverages * * *

“22. Declarations — All Coverages

“By acceptance of this policy the named insured agrees that the statements in the application and declarations are his representations and agreements, that this policy is issued in reliance upon the truth of such representations and that this policy embodies all agreements existing between himself and the company or any of its representatives relating to this insurance.

*******

DENNIS, Justice,

dissenting.

I respectfully dissent from the majority opinion on rehearing, because it is based on two erroneous premises.

The exclusion which provides that the policy applies when the aircraft is in flight, only while being operated by one of the named pilots, cannot be a warranty or a representation, as the majority asserts. In addition to the reasons stated in our original opinion, the provision cannot be a representation or a warranty because it is insusceptible of being a false statement. The provision simply says that the policy applies only while being operated by one of the named pilots.

There is no ambiguity in the provisions of the policy insofar as they are relevant or material to this case.

In the declarations contained on the first page of the policy, the parties agreed that the policy “applies when the aircraft is in flight, only while being operated by one of the” named pilots. On the second page, the parties agreed that the company would “pay for all loss or damage to the aircraft (a) while not in flight and (b) if specified as ‘Including In-Flight’ in the declarations, while in flight, . . . .” On the last page of the policy the parties agreed as follows:

“By acceptance of this policy the named insured agrees that the statements in the application and declarations are his representations and agreements, that this policy is issued in reliance upon the truth of such representations and that this policy embodies all agreements existing between himself and the company or any of its representatives relating to this insurance.”

Thus, the parties clearly and unambiguously agreed that the property damage coverage of the policy would be in effect during flight only if the plane was piloted by a named operator. The parties also specifically agreed to be bound by their agreements contained in the declarations.

If I understand the majority opinion on rehearing correctly, it ultimately depends upon an arguable ambiguity when the named pilot exclusion is construed with the liability coverage provisions of the policy. However, this suit is not based upon the liability coverage of the policy. It does not seem to me to be fair, just or proper contractual interpretation, therefore, to decide the case on the basis of an ambiguity that is not relevant to a genuine issue in the litigation.

      . The court of appeal also found that Avemco was not estopped from raising the policy provision in defense to plaintiffs suit. Although this was not the reason we granted writ of certiora-ri in this case, we have reviewed the record and find that the factual determination made by the court of appeal on this issue was correct.

      . Although Roth possessed the minimum qualifications of a pilot under the terms of the policy provision at issue, at trial Roth testified that he had been issued an F.A.A. citation in connection with a prior plane crash, and that he was unable to remember the ground for the citation. Wes Coble, an underwriter for Avemco, testified that Avemco would not accept pilots who had committed certain F.A.A. violations, and that, even if accepted, a higher premium might be charged.

      . It is not clear from the record who was authorized by Benton to pilot the insured plane. Mrs. Samaha, Benton’s representative, testified that Billy Kirkpatrick was hired as a pilot in January, 1978, and she indicated that he was still employed as a pilot at the time of the trial. There is nothing to indicate that Roth, a salesman, was employed to replace Kirkpatrick, who was, in Mrs. Samaha’s words “strictly a pilot.” It is clear that Mrs. Samaha did not realize that it was necessary to list each person who was operating the aircraft; and it appears likely that several individuals may have been operating the aircraft from time to time even though they were not listed in the policy.

      . Justice Fred A. Blanche, Jr., who was on the panel of the 1st Circuit Court of Appeal when the appeal of this case was decided, did not participate in these proceedings. Judge Charles A. Marvin, of the 2d Circuit Court of Appeal, was assigned as Justice Ad Hoc on rehearing.

      . LRS 22:619(A) reads:
      “Except as provided in Sub-section B of this Section and R.S. 22:692, no oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or avoid the contract or prevent it attaching, unless the misrepresentation or warranty is made with the intent to deceive.”

      . Coble:
      “. . . [T]he addition or deletion of a pilot or another type change could increase the risk . . . and therefore involve an additional premium . .
      “[If] Mr. Roth had come to us with the same kind of experience as the preceding pilot . . . and everything else being equal, there wouldn’t have been any increased premium . . ”
      “. . . [I]t would have to be a pretty bad situation for us not to accept a man
      Roth’s prior accident did not result in his license being suspended or revoked. Whether Roth would have been an additional pilot or a substitute pilot is of no moment. Under either situation, an increased premium might have resulted. The insurance contract does not refer to pilots as being additional pilots or as being substitute pilots. It simply refers to pilots and student pilots (Item 7(A) declarations), and to persons (Insuring Agreement III) and to the aircraft as being insured (Insuring Agreement I, Coverage C).

      . The Coverages A and C directly relate to Item 3 of the declarations quoted infra and in the appendix.


source: Caselaw Access Project

author:
DIXON, Justice.
     CALOGERO, Justice, DENNIS, Justice, DENNIS, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Dalton PREJEAN.
    No. 64813.
    Supreme Court of Louisiana.
    Nov. 29, 1979.
    Concurring Opinion Jan. 28, 1980.
    Dissenting Opinion on Denial of Rehearing Jan. 28, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., for plaintiff-appel-lee.
    Thomas E. Guilbeau, Lafayette, for defendant-appellant.
   DIXON, Justice.

At about five o’clock in the morning of July 2, 1977 the defendant, his brother Joseph, Michael George and Michael Brous-sard left Roger’s Nite Club in Lafayette Parish. The four had spent the night drinking in various lounges in the vicinity. They left Roger’s Nite Club in a 1966 Chevrolet driven by the defendant, with his brother in the front seat and the other two in the back. The car’s taillights were not working, and within a few hundred feet of the lounge, State Trooper Donald Cleveland, who was on his way to work driving his police vehicle, signaled the Chevrolet to stop. The defendant and his brother attempted to switch places in the front seat because the defendant had been driving without a license. The officer noticed the switch and ordered the occupants out of the car. He told Michael George and Michael Broussard to get back in, however, and began to search Joseph Prejean. Dalton Prejean, back in the car, stated, “I don’t like the way he’s doing my brother.” (This was a reaction to the trooper’s pushing Joseph against the car, over Joseph’s protest). Defendant then took a .38 caliber revolver from under the car seat, got out of the car and approached the officer with the gun hidden against his leg. As he neared the trooper he fired without warning. Trooper Cleveland was struck by two bullets and was killed. The defendant and his companions fled the scene but were apprehended several hours later.

Dalton Prejean was charged by grand jury indictment with first degree murder in violation of R.S. 14:30. The trial was transferred from Lafayette Parish to Ouachita Parish because of pretrial publicity. After a three day bifurcated trial beginning on May 1, 1978 a jury of twelve persons found the defendant guilty as charged and unanimously recommended that the death penalty be imposed. The defendant now appeals the verdict and sentence, relying on eleven assignments of error.

Assignments of Error Nos. 1 and 2

In his first assignment the defendant urges as error the challenges for cause granted by the court against jurors voicing an inability to impose the death penalty. By his second assignment the defendant contends that his counsel at trial was incompetent and erred in not objecting to the challenges for cause and in failing to traverse the testimony of witnesses that they would not vote for the death penalty.

C.Cr.P. 798(2) provides:

“It is good cause for challenge on the part of the state, but not on the part of the defendant, that:
(2) The juror tendered in a capital case who has conscientious scruples against the infliction of capital punishment and makes it unmistakably clear (a) that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (b) that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant’s guilt.”

In Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the United States Supreme Court held that a sentence of death cannot be carried out if the jury that recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. The defendant asserts that the exclusion of prospective juror Ertha Taylor was contrary to the standard of Witherspoon.

The prospective jurors were examined in panels. Twelve were selected for the initial panel and new jurors were led in to replace those excluded during the voir dire. The jurors were asked to raise their hands in response to questions asked of them. In response to an inquiry by the prosecuting attorney as to whether any of the jurors had scruples against capital punishment to the point where he would under no circumstances be able to impose that penalty, even if it were justified by the facts, Ms. Taylor raised her hand. Ms. Taylor further stated, “I don’t believe I could do it.” The prosecutor responded, “Not at all?” to which Ms. Taylor answered, “No sir.” The counsel for the defendant was asked if he wished to traverse, but he declined to do so.

No objection was made to the challenge for cause of Ms. Taylor. In the absence of a contemporaneous objection, an alleged error or irregularity in the proceedings cannot be availed of by the defendant after the verdict is rendered. C.Cr.P. 841; State v. Mitchell, 356 So.2d 974 (La.1978); State v. Williams, 343 So.2d 1026 (La.1977). In any event the record indicates clearly that Ms. Taylor was properly excused for cause. Ms. Taylor did more than voice a general objection or conscientious or religious scruples against the death penalty. She stated her honest opinion that she could under no circumstances impose that penalty. Therefore, she was properly excused under C.Cr.P. 798(2) and Witherspoon.

The defendant in brief assérts that the defense counsel’s failure to object to the exclusion of Ms. Taylor amounted to ineffective and incompetent assistance of counsel. This contention is without merit. The record indicates that defense counsel was experienced in the practice of criminal law. As noted above, the exclusion of Ms. Taylor was proper. Trial counsel cannot be said to be incompetent for failing to object to what was not objectionable. Nor does counsel’s failure to traverse or seek to rehabilitate the excluded witness amount to incompetence. When asked if he wished to question the nine prospective jurors excluded under. C.Cr.P. 798(2), defense counsel typically replied that he was in complete agreement with the sentiments expressed by the excluded jurors. In all other respects his voir dire was competent and able. The defense counsel apparently chose to forego rehabilitation of the excluded jurors in the hope of impressing upon the remaining jurors the moral scruples some members of society have against imposition of the death penalty. The purpose of post-trial review of the effectiveness of counsel is not to second guess the tactical decisions of trial counsel.

These assignments are without merit.

Assignments of Error Nos. 3 and 4

By these assignments the defendant, who is black, urges error in the denial of his motion to quash the petit jury panel on the grounds that the prosecutor deliberately exercised his peremptory challenges so as to exclude members of the defendant’s race from the petit jury. Defendant also assigns error in the trial court’s denial of a continuance to permit him to gather information to establish an historical pattern of discrimination.

Immediately after the selection of twelve white jurors, the defendant moved to quash the panel. He contended four out of the nine peremptory challenges exercised by the state were against blacks. Arguments were made on the motion the following morning, at which time the defendant’s counsel stated that the records as to persons challenged by the prosecuting attorney were in Lafayette Parish, and, therefore, the only evidence he had to support his motion was the fact that the state had exercised four of its nine peremptory challenges against blacks. The defendant asked to introduce evidence from those records at a later date. The court stated that it could not simply leave the door open for the defendant to introduce that evidence at any time. The trial court then denied the motion to quash the petit jury panel. The defendant did not urge discrimination. in the use of the state’s peremptory challenges in his motion for a new trial, in which he could have introduced any evidence obtainable from the Lafayette Parish records.

The excellent per curiam notes of the trial judge discuss the habitual thorough preparation of defense counsel, and that his active criminal practice would have given him knowledge of any racial discrimination by the district attorney. To this the trial judge added that, to his knowledge, there was no systematic exclusion of blacks in the Fifteenth Judicial District, by any means.

As noted in State v. Washington, 375 So.2d 1162 (La.1979) and State v. Brown, 371 So.2d 751 (La.1979), this court has held that a defendant is not denied equal protection by the state’s use of peremptory challenges against blacks unless there is a systematic exclusion of blacks over a period of time. In so doing, we adhered to the principle of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), in which the United States Supreme Court held that a showing that peremptory challenges were used to exclude blacks in a particular case did not establish a violation of equal protection under the Fourteenth Amendment of the United States Constitution. Rather, a showing of a systematic exclusion over a period of time is required to present a constitutional issue. In the present case, the defendant introduced no evidence to show that exclusion of blacks by peremptory challenge had occurred over a period of time. Therefore, his motion to quash the petit jury panel was properly denied.

These assignments are without merit.

Assignment of Error No. 5

At the beginning of the trial the prosecutor asked the widow of the victim how many children she had. Defense counsel objected to that question but only after the witness’ response was entered in the record. The court ordered the jury removed while argument was made on the defense objection. The court sustained the objection on the grounds that the number of the witness’ children was irrelevant. The jury was brought back in and examination of the witness continued.

The defendant now assigns as error the action of the trial court in sustaining the objection. His reasons for doing so are unclear. The argument in the defense brief merely repeats the language of the assignment. The defendant apparently objects to the fact that the court’s ruling was made out of the presence of the jury. That fact does not warrant reversal. Defense counsel made the objection only after the question had been answered. The trial court ruled on the objection at the instance of the defendant, and after the defense counsel requested that the jury be removed. Defense counsel made no request that the court repeat its ruling to the jury. Counsel likewise made no objection to the court’s failure to do so. The defendant cannot therefore avail himself of any error in the court’s ruling out of the presence of the jury.

This assignment is without merit.

Assignment of Error No. 6

By this assignment defendant urges error in the trial court’s decision to admit two allegedly gruesome photographs.

During the testimony of State Trooper Tommy Legendre the state sought to introduce into evidence photographs of the victim taken at the scene of the crime. The two 3l/2" X 5" pictures of the victim show the chest and jaw wounds suffered by the victim, along with a certain amount of blood. The photographs are unpleasant, but are not excessively gruesome. Defense counsel objected to the admission of the photographs, but the trial court overruled the objection.

In State v. George, 346 So.2d 694 at 702-3 (La.1977), this court stated:

“It is well established that the test of admissibility of allegedly gruesome photographs is whether their probative value outweighs the possible prejudice that may result from their display to the jury. State v. Williams, No. 58,679, 343 So.2d 1026 (La.1977); State v. Cooper, 334 So.2d 211 (La.1976); State v. Smith, 327 So.2d 355 (La.1975). Generally, photographs are admissible which illustrate any fact or which shed light on an issue, or are relevant to describe the person, place or thing involved. State v. Hollingsworth, 337 So.2d 461 (La.1976). More particularly, photographs of the body of a deceased victim depicting fatal wounds have generally been held relevant to prove the corpus delicti; to corroborate other evidence of the manner in which death occurred; to establish the location, severity and number of wounds; and to establish the 0 identity of the victim. State v. Cooper, supra; State v. Beach, 320 So.2d 142 (La.1975).”

The photographs in question here are relevant to prove corpus delicti and to show the number and nature of the wounds inflicted on the victim. Since the probative value of the photographs outweighs their prejudicial effect, the trial court did not abuse its discretion in admitting them.

■ The defendant contends, however, that in light of the stipulation he offered as to the circumstances of the case the pictures had no probative value whatsoever. In State v. Gilmore, 332 So.2d 789 (La.1976), we discussed the proposition that where a defendant stipulated to all the facts to which allegedly gruesome photographs would be relevant, the trial court would act properly in excluding the photographs from evidence. We noted that it would be for the trial court to determine whether the proffered stipulation was so complete as to render the photographs wholly needless, considering the legitimate moral force which photographs may have in favor of the state. See State v. Harvey, 358 So.2d 1224 (La.1978).

In the present case the stipulation was offered by the defendant far in advance of the state’s effort to introduce the photographs, and it was offered for a purpose unrelated to them. In addition, the stipulation fails to give all of the information contained in the pictures. The pictures were relevant to show the number and nature of the wounds. The offered stipulation contained no reverence to those facts. There was no error in the ruling of the trial judge.

Assignment of Error No. 7

The defendant contends that the trial court erred in allowing the state to present evidence out of order in the sentencing phase of the trial.

Following the jury’s verdict of guilty, the trial court moved into the sentencing phase. The second witness called by the state, Officer Joseph Cormier of the Lafayette City Police Department, testified, over defense objection, that when arrested the defendant did not appear to be intoxicated. The defendant argues that when the state opens the sentencing phase of the trial, it should be restricted to presenting evidence of aggravating circumstances, and should not be allowed to introduce evidence relating to mitigating circumstances until after the defense attempts to establish' that such circumstances exist. That argument, however, is based on a misinterpretation of the Code of Criminal Procedure articles relating to the sentencing hearing.

C.Cr.P. 905.2 provides:

“The sentencing hearing shall focus on the circumstances of the offense and the character and propensities of the offender. The hearing shall be conducted according to the rules of evidence. Evidence relative to aggravating or mitigating circumstances shall be relevant irrespective of whether the defendant places his character at issue. Insofar as applicable, the procedure shall be the same as that provided for trial in the Code of Criminal Procedure. The jury may consider any evidence offered at the trial on the issue of guilt. The defendant may testify in his own behalf. In the event of retrial the defendant’s testimony shall not be admissible except for purposes of impeachment.”

That article clearly states that evidence as to mitigating circumstances shall be relevant. It does not limit the introduction of such evidence to the defense. In addition, during the guilt determination stage of the trial the state had established one aggravating circumstance — the killing of a law enforcement officer engaged in his lawful duties. The defense had sought to show that the defendant had been intoxicated as a defense to the crime charged. Since the jury is authorized by C.Cr.P. 905.2 to consider evidence offered at the trial on the issue of guilt, the issue of whether the defendant was intoxicated was already before the jury. It was therefore proper for the state to offer evidence on that issue when it opened the sentencing phase of the trial.

This assignment lacks merit.

Assignments of Error Nos. 8 and 9

The defendant asserts that the trial erred in refusing to grant his motion for a new trial, based on the alleged failure of juror David Howell to disclose during voir dire his relationship with law enforcement officers. The defendant also claims that the trial court erred in denying him time before sentencing to substantiate his claims.

On voir dire, defense counsel asked Mr. Howell if he “had any friends in law enforcement,” and if he had any “ties” to someone in law enforcement. Mr. Howell answered that he did not, and was accepted as a member of the jury at a time when defendant had three peremptory challenges remaining. On May 11, 1978, the day set for sentencing, defense counsel filed a written motion for a new trial, alleging that “it is understood that” Mr. Howell was actually a personal friend of an employee of the Louisiana State Police. Defense counsel claims that, even if that were not grounds to challenge Mr. Howell for cause, he would have exercised one of his remaining peremptory challenges against him. Defense counsel also filed an oral motion for a delay in sentencing to allow him to produce witnesses to substantiate his allegations that Mr. Howell had answered falsely on voir dire. The court was told that a third person, an attorney, had provided defense counsel with the information as to the jur- or’s ties with law enforcement, but that defense counsel had not been able to corroborate the information. The court denied the motion for a delay and the motion for a new trial.

The motion for a new trial was made under C.Cr.P. 851(4) which provides that a new trial shall be granted if the defendant discovers, after the verdict, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of due diligence by the defendant, was not discovered before the verdict. Even if the false testimony of a juror, depriving the defendant of the effective use of his peremptory challenges, is an error or defect cognizable under C.Cr.P. 851, the motion for a new trial was properly denied. The defendant introduced no testimony whatsoever to support his contention that the juror had falsely answered on voir dire. In the absence of such evidence the trial court acted properly in denying the motion.

The defendant asserts, however, that the trial court erred in not allowing a delay for the defendant to seek and produce evidence to support his allegations in the motion for a new trial. C.Cr.P. 853 provides that a trial court, for good cause shown, may postpone- imposition of sentence in order to give the defendant time to prepare and file a motion for a new trial. There is considerable question as to whether that article was meant to apply where the motion for a new trial has already been made and the defendant merely seeks time to gather evidence in support of that motion. In any event the defendant did not at the hearing on the motion show good cause for a delay. He did not allege that he had only had a short period of time to prepare his motion. He merely stated that he had not yet been able to corroborate his factual allegations. In addition, there was no showing that the defendant took any measures to bring any witnesses into court to support his motion. The defendant did not offer to produce any witnesses. In short, the defendant failed to show good cause why a delay should have been granted.

These assignments lack merit.

Assignments of Error Nos. 10 and 11

By these assignments the defendant urges error in the trial court’s concurrence with the death sentence recommended by the jury. These assignments are specified but not argued in brief.

C.Cr.P. 905.8 provides that “the court shall sentence the defendant in accordance with the recommendation of the jury.” The trial court therefore had no option as to the sentence to be imposed.

Sentence Review

This court reviews every death sentence to determine if it is excessive. Art. 1, § 20, La.Const.; C.Cr.P. 905.9. In deciding whether a death sentence is excessive we must consider whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; whether the evidence supports the jury’s finding of a statutory aggravating circumstance; and whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

A. Aggravating Circumstance

There is ample evidence to support a finding by the jury that the victim of the crime was a peace officer engaged in his lawful duties, an aggravating circumstance to the crime of first degree murder under C.Cr.P. 905.4. Mrs. Cleveland testified that her husband left for work about five fifteen in the morning of July 2, 1977. A witness testified that the defendant’s car had no taillights, and that Trooper Cleveland followed the defendant’s car for several hundred feet, and then signaled for it to stop. Captain Clifton Cabell of the Louisiana State Police testified that his officers are always on call, and are considered on duty when they first climb into their units to go to work. The evidence therefore provided the jury with a basis to find that the victim was a peace officer engaged in his lawful duties.

B. Passion, Prejudice or Other Arbitrary Factors

The murder was committed in Lafayette Parish. Although an initial motion for a change of venue was denied, the difficulty encountered in selecting jurors unbiased by journalistic accounts of the case caused the court in Lafayette Parish to grant the motion when it was reurged. Venue was accordingly shifted to Ouachita Parish, where a jury was selected relatively easily.

The jury chosen in Ouachita Parish was composed of twelve white persons. There is no evidence, however, that the prosecutor purposely sought to exclude blacks from the jury. There is no indication that the prosecutor made any appeal to racial prejudice which influenced the jury in making its recommendation that the death penalty be imposed. Therefore, we cannot say that the jury’s decision was made arbitrarily because of racial prejudice.

The testimony and presence in the court room of the victim’s widow cannot be said to be an arbitrary factor influencing the jury’s decision. Although the sight of Mrs. Cleveland may have had an effect on the jury, her testimony was relevant to the issues, and there is no evidence that her appearance as a witness caused the jury to act unreasonably or capriciously.

Nor can it be said that an inference of arbitrariness arises from the jury’s recommendation of death in light of the mitigating circumstances presented to the jury. In the sentencing phase of the trial, defense counsel argues, as mitigation, that the defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired as a result of the defendant’s natural mental condition, aggravated by intoxication at the time of the offense. The defense also argued that the defendant’s youth militated against the recommendation of the death penalty. Those factors, although significant, are not so numerous and persuasive as to clearly outweigh the aggravating circumstance of the case, and are discussed in greater detail below.

C.Proportionality of the Sentence

Dalton Prejean was born in December, 1959, the second of four children. When he was two weeks old his parents sent him from their home in Lafayette to live with his aunt and uncle in Houston, Texas. Dalton was unaware of his true parentage until the age of eleven. When Dalton’s father left his mother and moved to Houston, the aunt decided that Dalton had to be told that he was not her child. About this time he began creating problems of an unknown nature, and was sent to live with his mother in Lafayette.

Dalton began skipping his school classes following his return to Lafayette. In March of 1972 he was committed- to the Louisiana Training Institute for truancy at the instance of his mother. Released only seven months later, he soon came into conflict with the authorities on charges of burglary, theft and “false firearms.” In March of 1974 he was committed to the Lafayette Juvenile Youth Authority, a residential program for delinquents. He ran away from that facility after a month; upon his return his commitment was terminated and he was released on probation to his mother.

In June of 1974 Dalton was arrested for the killing of John Doucet, a taxi driver. Dalton admitted the killing and was committed once again to the Louisiana Training Institute. In a later statement about the incident Dalton stated that he and two friends called a cab with the intention of robbing the driver. One of his companions was carrying a gun. The three directed the driver to a quiet part of town and persuaded him to stop while they searched for an address. Dalton insisted on taking the-gun from his companion because the other youth appeared to be nervous. Dalton approached the driver, and believing that the driver was reaching for a gun of his own, fired twice and began running. While fleeing he told a passerby to call an ambulance because someone had been shot. Dalton later turned himself in to the police and admitted that he had killed the driver.

Dr. Patrick Dowling conducted a psychiatric evaluation of Dalton Prejean in 1974. He found the defendant to be intellectually limited and to have very poor judgment. In his opinion Dalton was a borderline mental retardate, and it was questionable if he knew the difference between right and wrong. He considered the boy to be “a definite danger to himself and others, and his dream content suggests that it is a matter of accident that the cab driver was killed rather than the boy being killed. He is equally likely to get himself killed in the near future.” Dr. Dowling therefore recommended a lengthy confinement, followed by transfer to permanent facilities. The juvenile courts had jurisdiction over the defendant until he was twenty-one. R.S. 13:1572, now Article 89 of the Code of Juvenile Procedure. Dr. Dowling’s recommendation would have served to keep the defendant confined until December, 1980.

In 1976, however, another doctor conducted a psychiatric evaluation of the defendant and recommended that he be discharged. He concluded that the defendant’s values had changed, but cautioned that “suitable conditions [should be] imposed to be sure he had adequate supervision and is going to live in a fairly stable environment.” That doctor also suggested that fairly rigid probation requirements be imposed. On December 10, 1976 Dalton Prejean was released to the custody of his aunt in Houston, apparently without any probation requirements. Within seven months Dalton was once more under arrest for killing a human being. He had lived in the relatively stable environment of his aunt’s house for only three months before returning to Lafayette to live with his mother and her common law spouse. He worked offshore for a period of time but was discharged when it was discovered that he was only seventeen. Dalton was unemployed at the time of the killing of Trooper Cleveland.

Dalton was once again given psychological tests during pretrial confinement. On the basis of the Wechsler Intelligence Scale, the Stanford Binet Vocabulary Subtest and the Bender-Gestalt Test, Dr. William Hawkins determined that the defendant functioned at the dull normal level in the verbal area but in the borderline mental retardate area in the performance area. He had a verbal I.Q. of 82 and a performance I.Q. of 72. His full scale I.Q. is 76, with a full scale mental age of thirteen years and six months.

Evidence was presented to the jury that intoxication would cause a change in the behavior of such a “borderline” retardate, and would reduce his inhibitions, making it more likely that he might “act out his inner feelings.”

Whether this evidence was considered mitigative by the jury is questionable. Voluntary intoxication does not excuse. The combination of dull mentality, alcohol and handguns could reasonably be said to increase the probability of tragic repetition.

The actual degree of intoxication suffered by the defendant is not without some doubt. He had drunk beer and a glass of wine over an entire night. He retained sufficient control of his physical functions to drive, shoot and escape.

The record will not support a conclusion that defendant’s capacity to appreciate the criminality of his conduct was so impaired because of his mental condition and intoxication that the death sentence was, for that reason, excessive. Nor does a comparison with similar eases in the district establish that the sentence was disproportionate, considering both the crime and the defendant. The conviction and sentence are affirmed.

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

CALOGERO, Justice,

concurring.

I concur in the affirmance of defendant’s conviction and sentence. However, I believe that if defendant seeks a writ of habe-as corpus, he is entitled to attempt to prove the systematic exclusion of blacks from his jury.

While defendant argued that blacks were excluded from the jury, he presented no evidence of the exclusion as required by our decisions in State v. Washington, 375 So.2d 1162 (La.1979) and State v. Brown, 371 So.2d 751 (La.1979). And although he requested a twenty-four hour continuance in order to obtain evidence his request was denied. Because this assignment presents a possible violation of defendant’s constitutional rights, and although he has a difficult burden of proof under Washington and Brown, defendant is entitled to make a showing of the systematic exclusion.

DENNIS, Justice,

concurring (in majority opinion on original hearing).

I respectfully concur. I continue to disagree, however, with the majority of this Court in its insistence upon following the federal jurisprudential rule in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), instead of Article 1, § 3 of the Louisiana Constitution in determining whether a defendant has been denied equal protection by the state’s use of peremptory challenges on the basis of race. See State v. Eames, 365 So.2d 1361, 1364 (La.1979) (Dennis, J., concurring); State v. Kelly, 362 So.2d 1071, 1079 (La.1978) (Dennis, J., concurring). Nevertheless, the trial court ruling in this case did not violate our state constitution because a prima facie case of racially discriminatory peremptory challenges was not established.

DIXON, CALOGERO and DENNIS, JJ., would grant a rehearing on the penalty portion only.

ON APPLICATION FOR REHEARING

DENNIS, Justice,

dissenting from denial of rehearing.

I respectfully dissent from the majority’s refusal to grant a rehearing in this case with respect to the death penalty.

In his application for rehearing the defendant has pointed out a fatal constitutional flaw in our scheme for imposing the death sentence. The statute mandating review of every sentence to determine if it is excessive, La.C.Cr.P. art. 905.9, and the rule of this Court establishing procedures for such review, La.Sup.Ct. Rule 28, do not provide for a review of the proportionality of each sentence in comparison with sentences in similar cases throughout the state. In fact, at present, this Court does not have the capability of this type of review, because it merely requires that the district attorney in each death case reviewed file a synopsis of each first degree murder case in his district (comprised usually of one or two Parishes) in which sentence was imposed after January 1, 1976. Furthermore, a majority of this Court has today adamantly refused to expand the basis of its proportionality review by either granting a rehearing in this case or by amending its rule to require annual reporting of capital sentence proceedings results throughout the state. Apparently, a majority of this Court is of the opinion that state-wide proportionality review is not required as part of a constitutional capital punishment scheme. In my opinion, my fellow members of the Court have fallen into error which could ultimately require the United States Supreme Court to set aside the death penalty in this and many other cases.

Louisiana’s first degree murder statute was adopted in the wake of the United States Supreme Court decisions in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), and Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Each of the statutes at issue in those cases provided a varying degree of appellate review of sentencing decisions.

The Texas scheme appears to have been the least detailed. The United States Supreme Court was nevertheless satisfied that,

“By providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law.” Jurek v. Texas, 428 U.S. at 276, 96 S.Ct. at 2958 [emphasis supplied].

Apparently, the Supreme Court regarded as important the moderating and evening effect that an appellate court with state-wide jurisdiction would have in ensuring the fair administration of the death penalty. In Florida, though the state statute was apparently silent on sentence review, the state courts had assumed jurisprudentially an obligation to review sentences and to ensure the even-handed application of the death penalty. Describing the sentencing review framework, the Supreme Court said:

“The statute provides for automatic review by the Supreme Court of Florida of all cases in which a death sentence has been imposed. . . . The law differs from that of Georgia in that it does not require the court to conduct any specific form of review. Since, however, the trial judge, must justify the imposition of a death sentence with written findings, meaningful appellate review of each such sentence is made possible and the Supreme Court of Florida like its Georgia counterpart considers its function to be to ‘(guarantee) that the (aggravating and mitigating) reasons present in one case will reach a similar result to that reached under similar circumstances in another case. . . .’” Proffitt v. Florida, 428 U.S. at 250-251, 96 S.Ct. at 2966.

By far the most detailed of the appellate review schemes was that provided by the Georgia statute. The Supreme Court described the Georgia statute as follows:

“In addition to the conventional appellate process available in all criminal cases, provision is made for special expedited direct review by the Supreme Court of Georgia of the appropriateness of imposing the sentence of death in the particular case. The court is directed to consider ‘the punishment as well as any errors enumerated by way of appeal’ and to determine:
‘(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and
‘(2) Whether, in cases other than treason or aircraft highjacking, the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance . . . and
‘(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.’ .
“If the court affirms a death sentence, it is required to include in its decision reference to similar cases that it has taken into consideration. .
“A transcript and complete record of the trial, as well as a separate report by the trial judge, are transmitted to the court for its use in reviewing the sentence. . The report is in the form of a 6V2-page questionnaire, designed to elicit information about the defendant, the crime, and the circumstances of the trial. It requires the trial judge to characterize the trial in several ways designed to test for arbitrariness and disproportionality of sentence.” Gregg v. Georgia, 428 U.S. at 166-167, 96 S.Ct. at 2922.

Upon a state constitutional provision that in any event already provided for excessiveness review, this state by both statute and rule has adopted a death penalty review framework that is almost identical to the one described in Gregg v. Georgia, supra. La.C.Cr.P. art. 905.9 enjoins this Court to “review every sentence of death to determine if it is excessive” and directs the Court to “establish such procedures as are necessary to satisfy constitutional criteria for review.” Acting pursuant to that direction, this Court adopted Rule 28, § 1 of which places upon this Court the same burden and manner of review imposed upon the Georgia Supreme Court by statute. The language of Section 1, virtually identical to the Georgia statute, provides:

“Every sentence of death shall be reviewed by this court to determine if it is excessive. In determining whether the sentence is excessive the court shall determine:
“(a) [Wjhether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors, and
“(b) [Wjhether the evidence supports the jury’s finding of a statutory aggravating circumstance, and
“(c) [Wjhether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” Rule 28, § 1; Rule 905.9.1.

In State v. Sonnier, 379 So.2d 1336 (La.1979), this Court recognized that, “This is the same procedure for review authorized by Georgia statute approved by the United States Supreme Court in Gregg v. Georgia, supra." This Court having been directed to adopt constitutional criteria for sentencing review, and having chosen those criteria used in Georgia and approved by the United States Supreme Court, it is appropriate to refer to the Georgia framework to divine the full nature of this Court’s obligation under its adopted rule. The Supreme Court in Gregg v. Georgia, supra, described how the Georgia system operated and approved it.

“In performing its sentence-review function, the Georgia court has held that ‘if the death penalty is only rarely imposed for an act or it is substantially out of line with sentences imposed for other acts it will be set aside as excessive.’ Coley v. State, 231 Ga. [829], at 834, 204 S.E.2d [612], at 616. The court on another occasion stated that ‘we view it to be our duty under the similarity standard to assure that no death sentence is affirmed unless in similar cases throughout the state the death penalty has been imposed generally .’ Moore v. State, 233 Ga. 861, 864, 213 S.E.2d 829, 832 (1975). See also Jarrell v. State, supra, 234 Ga. [410] at 425, 216 S.E.2d [258], at 270 (standard is whether ‘juries generally throughout the state have imposed the death penalty’); Smith v. State, 236 Ga. 12, 24, 222 S.E.2d 308, 318 (1976) (found a ‘clear pattern’ of jury behavior).
“It is apparent that the Supreme Court of Georgia has taken its review responsibilities seriously. In Coley, it held that ‘[t]he prior cases indicate that the past practice among juries faced with similar factual situations and like aggravating circumstances has been to impose only the sentence of life imprisonment for the offense of rape, rather than death.’ 231 Ga., at 835, 204 S.E.2d, at 617. It thereupon reduced Coley’s sentence from death to life imprisonment. Similarly, although armed robbery is a capital offense under Georgia law, § 26-1902 (1972), the Georgia court concluded that the death sentences imposed in this case for that crime were ‘unusual in that they are rarely imposed for (armed robbery). Thus, under the test provided by statute, . they must be considered to be excessive or disproportionate to the penalties imposed in similar cases.’ 233 Ga., at 127, 210 S.E.2d, at 667. The court therefore vacated Gregg’s death sentences for armed robbery and has followed a similar course in every other armed robbery death penalty case to come before it .
“The provision for appellate review in the Georgia capital-sentencing system serves as a check against the random or arbitrary imposition of the death penalty. In particular, the proportionality review substantially eliminates the possibility that a person will be sentenced to die by the action of an aberrant jury. If a time comes when juries generally do not impose the death sentence in a certain kind of murder case, the appellate review procedures assure that no defendant convicted under such circumstances will suffer a sentence of death.” Gregg v. Georgia, 428 U.S. at 204-206, 96 S.Ct. at 2940. [emphasis supplied]

Plainly, the Georgia Supreme Court has interpreted its statute, identical to our rule, as requiring it to compare any case before it with all “similar cases” not simply those from one particular court but those from throughout the state, Additionally, the Georgia Supreme Court considers not only those murder cases in which a capital conviction was obtained but also those murder cases in which life imprisonment was recommended. Gregg v. Georgia, supra, 428 U.S. 204, 96 S.Ct. 2909. The Georgia scheme, premised upon the same language as the Louisiana scheme, is one that provides for state-wide comparisons with all “similar cases,” whether or not death was recommended, and it is this scheme, and this scheme alone, that was approved by the United States Supreme Court in Gregg v. Georgia as providing a sufficient format for appellate review of jury sentencing decisions.

As I read Gregg, Jurek and Proffitt, this Court must give the same meaning to its rule as the Georgia court gave to its statute; this Court should, accordingly, judge the proportionality of each death penalty by comparing it with all “similar cases” throughout the state, both those in which death was recommended and those in which life was recommended. The language of the rule itself, the policies underlying that rule, and thé aberrations that would flow from any other interpretation require such a result.

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

      . See State v. Daniel, 378 So.2d 1361 (La.1979), which held that where the juror’s inaccurate testimony was the result of misunderstanding and the juror’s relationship to the case was not a necessary grounds for a challenge for cause, there were no grounds for reversal. Cf. State v. Square, 257 La. 743, 244 So.2d 200 (1971), which suggested that discovery of the fact that a juror had lied or supplied erroneous information on voir dire would be grounds for a new trial. See also State v. Buggage, 351 So.2d 95 (La.1977).

      . In State v. Passman, 345 So.2d 874 (La.1977), the court used the standard for determining if a continuance should have been granted under C.Cr.P. 709 to decide if the trial court properly denied defendant a delay based on the absence of witnesses. A continuance is granted at the sound discretion of the trial court. It is clear that the defendant in the instant case moved for a delay under C.Cr.P. 853 rather than a continuance under C.Cr.P. 709.

      . Since January 1, 1976 there have been two first degree murder verdicts rendered in the Fifteenth Judicial District, where the crime was committed. Gloria Aucoin, a twenty-six year old married woman, was convicted of the first degree murder of her eight year old daughter. The state argued as an aggravating circumstance that the killing had been committed in a heinous, atrocious and cruel manner. The defendant claimed that she had acted as a result of mental disease or defect and drug addiction resulting from prior medical treatment. The jury recommended a sentence of life imprisonment. This court affirmed the conviction and sentence in State v. Aucoin, 362 So.2d 503 (La.1978). Theresa Thibeaux was convicted of the first degree murder of her husband. Prior to the killing the couple had quarreled and the husband had struck Mrs. Thibeaux several times. No evidence of aggravating circumstances was offered and the defendant was sentenced to life imprisonment. This court reversed the conviction because of errors committed by the trial court as to the admissibility of evidence of prior physical abuse of the defendant by her husband. State v. Thibeaux, 366 So.2d 1314 (La.1978).
      In the Fourth Judicial District, where the defendant was tried, there has been only one first degree murder verdict rendered since January 1, 1976. Charlie Lee Carter shot Alfred C. Carter several times with a .38 caliber revolver. On the recommendation of the jury Carter was sentenced to serve life imprisonment.


author: PER CURIAM. SUMMERS, Chief Justice

text:
    STATE of Louisiana v. Don RIPTOE.
    No. 66290.
    Supreme Court of Louisiana.
    Dec. 20, 1979.
    Dissenting Opinion Feb. 4, 1980.
    Donald R. Minor, Indigent Defender Office, Shreveport, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., Charles W. Kelly, IV, Asst. Dist. Atty., Shreveport, for plaintiff-respondent.
   PER CURIAM.

The ruling of the trial court is reversed. No probable cause having been established at the preliminary examination, the defendant is ordered released from custody immediately without bond.

SUMMERS, C. J., dissents and assigns reasons.

SUMMERS, Chief Justice

(dissenting).

I am of the opinion that the trial judge properly found at the preliminary hearing that probable cause existed to hold defendant on a charge of attempted illegal use of weapons, a rifle, where it was foreseeable that it might result in death and great bodily harm to humans.

Apparently defendant Don Riptoe and his wife had not been getting along too well. His wife was employed at Jiminique’s Restaurant by James Casin, Jr., the proprietor. When distraught she had on occasions, prior to October 19, 1979, visited Casin and his wife at their residence to talk to them .about her marital troubles.

About three o’clock on the afternoon of October 19, 1979 Riptoe entered the restaurant and threatened Casin a number of times. Casin had never seen Riptoe before and could assign no reason for the threats. Riptoe’s threats were manifested by pointing his finger at Casin in the manner of a pistol; Riptoe resorted to these gestures because he was unable to speak. A speech impediment resulting from a tracheotomy about a year earlier made communication otherwise difficult. These threats were in full view of the restaurant employees and customers.

Riptoe then left the restaurant. A later investigation established that at some time that afternoon he purchased a .22 caliber rifle.

Then, about 9 o’clock that evening he returned to the restaurant, stalked to the bar area in an apparent state of anger. When he appeared to be headed toward the kitchen where his wife was at work, Casin importuned, “Don, talk to your wife later. I want you to get out of here now,” or words to that effect. At that time Casin had a pistol in his possession, having been urged to beware of Riptoe by those who witnessed the threats by Riptoe that afternoon at 3 o’clock.

Riptoe left in a hurry, and seconds later re-entered at the door leading to the parking area. He was carrying a package wrapped in brown paper and tore the paper from the enclosed object as he headed for Casin. As he advanced it became apparent that the object he carried was a rifle, whereupon the customers scattered, running from the restaurant into the street via the front door. As Riptoe advanced into the bar area of the restaurant Casin drew his pistol and shot Riptoe in the chest. Rip-toe’s rifle was not loaded and he had no shells in his possession.

Riptoe was transported to a hospital where he recovered and was released in two weeks; whereupon he was arrested, charged and released on bond.

The crime charged here is the attempted illegal use of a rifle where it was foreseeable that it might result in death or great bodily harm to a human being as set forth in Article 94 of the Criminal Code. I agree with the trial judge that the requisite elements of the crime have been satisfied.

When Riptoe entered the restaurant carrying the wrapped gun and proceeded toward Casin tearing the wrapping from the gun as he approached, he was attempting to use the gun to threaten Casin. This notwithstanding the fact that he had been driven from the restaurant earlier that day by Casin who was armed with a pistol.

It could hardly be expected that Casin would not defend himself against such an advance. He had been threatened earlier that day by Riptoe and Riptoe’s angry approach with a weapon not only justified the defensive shot by Casin but, as could be foreseen, all of the spectators fled to a place of refuge upon seeing Riptoe tearing the wrapping from the weapon. “Great bodily harm” to a human being did in fact “fore-seeably” result from the “criminally negligent use of the article” (rifle).

I respectfully dissent.