author: WATSON, Justice. MARCUS, Justice BLANCHE, Justice PER CURIAM.

text:
    Roy HRYHORCHUK v. Roy M. SMITH et al. Roy HRYHORCHUK v. CALCASIEU PARISH POLICE JURY et al.
    Nos. 67014, 67021 and 67027.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    Rehearing Denied Dec. 5, 1980.

      John S. Bradford, Stockwell, Sievert, Vic-cellio, Clements & Shaddock, Lake Charles, for defendant-applicant in No. 67021; for defendant-respondent in Nos. 67014 and 67027.
    G. Michael Bourgeois, Camp, Carmouche, Palmer, Barsh & Hunter, Reid K. Hebert, Plauche, Smith, Hebert & Nieset, Frederick L. Cappel, Raggio, Cappel, Chozen & Bern-iard, J. Michael Veron, Scofield, Bergstedt, Gerard, Hackett & Mount, Lake Charles, Raymond Morgan Allen, Allen, Gooch & Bourgeois, Lafayette, Edmund F. Woodley, Woodley, Barnett, Cox, Williams & Fenet, Lake Charles, for defendants-respondents in all three cases.
    H. O. Lestage, III, Hall, Lestage & Les-tage, De Ridder, for defendant-applicant in No. 67027 and for respondent in 67014 and 67021.
    J. Clem Drewett, Robert W. Thomas, Drewett, Jacques & Thomas, Lake Charles, for plaintiff-applicant in No. 67014 and for respondent in Nos. 67021 and 67027.
   WATSON, Justice.

Plaintiff, C‘. B. Roy Hryhorchuk, a pedestrian, received severe personal injuries on April 28, 1976, at the scene of an automobile accident in Ward 5 of Calcasieu Parish. Intervening in the suit is his separated wife, Lawanda Hryhorchuk. Defendants are the following: (1) Constable Roy M. Smith and his liability insurer, State Farm Mutual Automobile Insurance Company; (2) the Calcasieu Parish Police Jury and its insurers, United States Fidelity & Guaranty Company, Houston General Insurance Company and Travelers Insurance Company; (3) the Calcasieu Parish Sheriff’s Department and its liability insurer, North River Insurance Company; (4) the State of Louisiana, through the Department of Public Safety, (5) the State of Louisiana, through the Department of Transportation and Development; (6) William Clifton and his liability insurer, Pennsylvania General Insurance Company; (7) State Farm Mutual Automobile Insurance Company, plaintiff’s uninsured motorist carrier.

At the conclusion of plaintiff’s evidence, the trial court gave a directed verdict, dismissing plaintiff’s demands against the Police Jury, the Sheriff’s Department, the State of Louisiana Through the Department of Public Safety, the State of Louisiana Through the Department of Transportation and their insurers. At the conclusion of trial, judgment was rendered in favor of plaintiff against defendants, Roy M. Smith, William Clifton, State Farm and Pennsylvania General, in solido, for $40,000, the limits of liability of the insurance policies. Judgment was also rendered in favor of plaintiff against Smith and Clifton in solido for $587,389.24.

The Court of Appeal, Third Circuit, affirmed the trial court judgment on the liability issues. The Court of Appeal reduced the award of $587,389.24 against Smith and Clifton personally to $50,000 on the basis of their inability to respond in damages. Hryhorchuk v. Smith, 379 So.2d 281 (La.App. 3 Cir. 1979).

The writ applications of plaintiff Hryhor-chuk, defendant Smith and his insurer, and plaintiff’s uninsured carrier, State Farm, were granted to review the judgment. 381 So.2d 1231, 381 So.2d 1225, 381 So.2d 1226 (La., 1980).

FACTS

These multiple accidents occurred on Louisiana Highway No. 12 three miles from the Texas border in the western part of Calcasieu Parish near Starks, Louisiana. Huey P. Thompson, who was intoxicated, ran off the road and onto the south guard rail of a bridge approach. His vehicle came to rest two to five feet clear of the road. A second minor accident, unconnected with Thompson’s caused congestion but also did not block the highway.

William Chapman, a civil service employee of the Department of Transportation, was on duty at the Starks weigh station, which is located one-half mile east of the bridge. The caution lights of the weigh station are visible at the bridge. Chapman and other weigh station employees testified that providing notification of accidents was something they were expected to do. They were instructed to cooperate with all law enforcement agencies. Chapman learned about the situation from a passing trucker, and contacted the Louisiana State Police Headquarters of Troop D in Lake Charles on a police band radio. He was asked to have someone stand by to flag traffic until a trooper could arrive, a standard practice in this rural area. It is forty miles from the Starks scales to Troop D Headquarters. Chapman called the Sheriff’s Department but no deputy was available so he asked Roy Smith, Constable of Ward 5, to go to the scene. Chapman said responding to accidents was expected of Smith as a Constable. Smith also testified that this was one of his duties as a peace officer serving the people of Ward 5.

Smith arrived at the accident site about 9:50 P.M. and parked next to the Thompson truck in the eastbound lane of traffic facing west. Several vehicles had safely passed in an eastbound direction prior to his arrival. The truck’s headlights were off. There were safer places available for Smith to park; the shoulders were approximately ten feet wide. He placed a small “Kojak” light on the top of his dark blue 1971 Plymouth and turned off the headlights, but left on his amber blinkers. The blinkers on this model car are quite low, on or near the bumper. The hood of the car was slightly raised to allow the engine to remain cool. Hryhorchuk, a friend of Thompson, was standing off the roadway in front of Thompson’s truck. Other automobiles and people were nearby. A good Samaritan, Harold Ellis, was standing a hundred feet west of the bridge swinging a.six volt hand lantern to alert approaching vehicles. During the thirty minute interval between Smith’s arrival at the accident scene and Hryhorchuk’s injuries, ten or fifteen automobiles passed in both directions. Clifton, who was coming from Texas, saw a blinking light while still a distance from the bridge. He was very familiar with the road and assumed that what he had seen was the caution lights at the weigh station. When he reached the bridge approach, Clifton was momentarily distracted by cars parked on the shoulder and the Ellis lantern. He struck the Smith vehicle without slowing, while traveling 50 to 55 miles per hour. Smith was, of course, parked squarely in Clifton’s lane of traffic. The head-on impact between the automobiles propelled the Smith car into Hryhorchuk, knocking him over the bridge embankment into a ravine below. This accident occurred about 10:30 P.M.

State Trooper Bert A. Bolt, Jr., arrived seconds after Hryhorchuk was injured. Roy Smith was on duty when Bolt arrived. A Sheriff’s unit was also present at one point. Bolt testified that it is customary in that part of the parish for deputies or constables to tend to injuries, secure the scene and direct the traffic at accidents pending a trooper’s arrival. In Bolt’s opinion, Constable Smith’s automobile was parked in a hazardous position. Bolt cited Clifton for not maintaining reasonable and proper control of his vehicle.

Constable Smith is an elected official. He was first elected as Constable for Ward 5 of Calcasieu Parish in 1972. The term is four years. At the time of the accident, Smith received either $60 or $150 per month from the Parish of Calcasieu. There was a raise at about that time. Constable Smith also had an honorary commission as a deputy sheriff for Calcasieu Parish, but he testified that he went to the accident scene in his capacity as a constable. An affidavit by Sheriff Henry A. Reid, Jr., attests to the fact that Roy M. Smith was not a regular deputy sheriff or a compensated employee of the Calcasieu Parish Sheriff’s Department at the time of the accident. Smith has never been formally advised of what a constable’s duties are. His office is bonded. He has assisted at other accidents and has made arrests for reckless driving. At the State Attorney General’s annual meetings for Justices of the Peace and Constables, Smith was instructed that his duty as a peace officer is to arrest anyone breaking the law. Smith understood his duties to include serving papers for the Justice of the Peace and general service to the residents of Ward 5.

An affidavit by Captain Clarence C. Barton, Captain of Troop D of the Louisiana State Police, a Division of the Louisiana Department of Public Safety, states that Roy M. Smith was not acting on behalf of the State Police of Troop D nor the Department of Public Safety at the time of the accident. The affidavit further states that the radio dispatcher at Troop D is not authorized to request assistance at the scene of an accident authorized by an executive officer or desk sergeant and that no request of that nature was made by a radio dispatcher as to the services of Constable Smith in this accident.

The trial court concluded that Hryhor-chuk is now a semi-invalid as a result of extensive damage to the issue, skin and bone of his right leg which required fourteen operations. His disability as a whole is estimated at twenty-five percent and he will suffer for the rest of his life from recurrent swelling, dormant osteomyelitis or bone infection, and pain. He can no longer work in his previous occupation as a welder where he would have earned approximately $15,000 during the year of the accident. The trial court stated in reasons for judgment that not only has Hryhor-chuk’s work and recreational life been completely disrupted, but that the accident has also contributed to the dissolution of his home. Hryhorchuk, thirty-four years old at the time of the accident, was awarded the discounted amount of his future lost earnings, or $471,209.93, together with $100,000 for pain and suffering and medical expenses of $24,249.56, plus $31,929.75 for loss of wages between accident and trial.

The first issue is the liability of Smith and Clifton.

The evidence amply supports the trial and appellate court’s conclusion that the actions of Smith and Clifton combined to cause Hryhorchuk’s injuries. The trial court found that Clifton breached his duty of care to the public by failing to slow as he approached the accident scene despite the presence of the “Kojak” light, Smith’s blinkers and the lantern waved by Ellis. In view of the activity at the scene, Clifton should have been able to stop or at least slow his automobile before the impact. The testimony was that there was no reduction in his speed and he violated his legal duty to the public in general and Hryhorchuk in particular. The trial court did not err in finding that Clifton’s behavior was negligent and substandard.

As to Smith, his commendable purpose was to alert people to the presence of the truck on the bridge railing. However, the truck was clear of the roadway. Smith, by parking his car squarely in the eastbound traffic lane facing west, created an additional hazard which combined with Clifton’s negligence to produce Hryhorchuk’s injuries. Although Smith had some blinkers and a small “Kojak” light on his automobile, he breached his duty to other motorists by parking on the roadway. Blocking the eastbound traffic lane in the dark was inherently dangerous and “unnecessary to the performance of the emergency function,” Hryhorchuk v. Smith, 379 So.2d 281 at 288. Compare Pierre v. Alistate Insurance Company, 257 La. 471, 242 So.2d 821 (1971) and Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962). Smith was negligent.

There is no evidence to establish that Hryhorchuk was contributorily negligent in being at the accident scene trying to render assistance to his friend Thompson. Hryhorchuk was off the road and had no reason to anticipate the sequence of events which occurred.

As to the plaintiff and the two individual defendants, the trial and appellate courts correctly decided the liability issues.

The next question is whether a directed verdict should have been granted in favor of any or all of the other defendants.

The Court of Appeal correctly found that Smith was not acting as an employee or agent of the Calcasieu Parish Police Jury or the Calcasieu Parish Sheriff. Neither the Police Jury nor the Sheriff exercised any supervision over his activities, the most important element in determining employee status. Part of Smith’s salary was paid by the Parish. LSA-R.S. 13:2589. However, the Parish had no right to control his activities or to dismiss him. Further, the evidence does not establish that Smith was acting as an agent or direct representative of the Sheriff’s Office or the Parish. Smith went to the scene of the accident in his capacity as Constable of Ward 5 of Calca-sieu Parish, an elected office. Compare Chaudoin v. Fuller, 67 Ariz. 144, 192 P.2d 243 (1948). There is no liability on the part of the Parish of Calcasieu or the Sheriff of Calcasieu Parish.

A state office is one created by the Constitution or state statute. The Court of Appeal stated:

“It is well settled that a ‘state office’ is one created by the constitution or state statute. State v. Dark, 195 La. 139, 196 So. 47 (La.1940); State v. Titus, 152 La. 1011, 95 So. 106 (La.1922); Chappuis v. Reggie, 222 La. 35, 62 So.2d 92 (La.1952). The office of Constable is a creature of the legislature. LSA-R.S. 13:2581.” 379 So.2d at 290.

A constable is an elected officer whose duties are similar to those of a sheriff, although his powers are much less and his jurisdiction smaller. LSA-R.S. 13:2581.2. Like sheriffs and deputy sheriffs, constables are state officers. Williams v. Guerre, 182 La. 745, 162 So. 609 (1935); State v. Jones, 181 La. 390, 159 So. 594 (1935); State v. Titus, supra; Foster v. Hampton, 352 So.2d 197 (La., 1977). Constables perform public functions with authority derived from the State by legislative enactment. As such, a constable is a public officer who exercises a delegated portion of the sovereign power of the State of Louisiana. State v. Dark, supra. Constables have civil duties but have also always been recognized as peace officers. Among the duties given to constables by statute are returns on service, LSA-R.S. 15:30; preserving the peace, LSA-R.S. 13:2586.1; the report of crimes, LSA-R.S. 15:578; and the seizure and sale of property, LSA-R.S. 13:2585. Smith reported to the scene of this accident in his official capacity as an elected official of the State of Louisiana. He was not there as a private citizen.

When a constable is acting in his capacity as a public officer, the State of Louisiana is liable for a tort resulting from his negligent performance of an official duty. Constable Smith was at the scene of this accident in discharge of the duties of his office. Therefore, the State of Louisiana is liable for the negligence of Smith in the course of his employment. Foster v. Hampton, 381 So.2d 789 (La., 1980).

Although the State of Louisiana was named as a defendant “Through the Department of Transportation and Development” and “Through the Department of Public Safety”, this is sufficient to make the State of Louisiana a proper party defendant. The two departments named as defendants are both agencies of the executive branch of the State of Louisana. LSA-R.S. 36:4. Any judgment rendered can only be paid by appropriation of the Legislature. LSA-Const. art. 12, § 10. The State of Louisiana is the real party at interest. See Usry v. Louisiana Dept. of Highways, 459 F.Supp. 56 (1978) and Dagnall v. Department of Highways, State of La., 466 F.Supp. 245 (1979).

The Court of Appeal erred in affirming the directed verdict in favor of the State of Louisiana Through the Department of Public Safety and Through the Department of Transportation and Development. While it is true that the two departments were sued, the State is before the court and the trial court must proceed to determine its liability subject to our holding that the State is liable for the negligence of Smith in the course of his employment as constable. This pretermits consideration of whether Smith was acting as agent of the two departments.

There is no abuse of discretion in the quantum awarded by the trier of fact. The reduction in quantum by the Court of Appeal must, of course, be vacated pending further trial and the judgment of the trial court reinstated.

For the foregoing reasons, the judgment of the Court of Appeal is affirmed in favor of the Calcasieu Parish Police Jury and the Calcasieu Parish Sheriff’s Department and their insurers. The judgment of the Court of Appeal is reversed insofar as it affirmed the directed verdicts in favor of the State of Louisiana, Through the Department of Public Safety, and the State of Louisiana, Through the Department of Transportation and Development. The judgment of the Court of Appeal reducing the quantum of damages is vacated and set aside. The judgment of the trial court in favor of plaintiff against Smith and Clifton and their insurers is affirmed but it is ordered that there be further trial on the issue of the liability of the State of Louisiana. The question of the liability of State Farm in its capacity as Hryhorchuk’s uninsured motorist carrier remains open pending further disposition in the trial court.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

MARCUS, J., concurs in part and dissents in part and assigns reasons.

BLANCHE, J., dissents and hands down reasons.

LEMMON, J., dissents in part as to dismissal of Parish of Calcasieu.

MARCUS, Justice

(concurring in part and dissenting in part).

I agree with all the findings of the majority except the conclusion that a constable is a state officer for whom the state would be liable for damages resulting from the negligent performance of his duties. Accordingly, I concur in part and dissent in part.

BLANCHE, Justice

(dissenting).

I respectfully dissent. The evidence indicates that upon his arrival, Smith noted that there were two accidents — one on either side of the road. After surveying the situation, he decided to divert traffic around the Thompson truck, fearing that east-bound traffic would, upon seeing the truck sitting on the edge of the road, tend to “flinch from that truck” and run into the west-bound traffic. This conclusion is far from being a mere “figment of one’s imagination”. The second accident occurred due to an emergency created by an automobile travelling normally in the east-bound traffic lane suddenly and without warning putting on its brakes and swerving on the highway at the point where the truck was straddling the bridge railing.

Although, upon after-the-fact reflection by the trial judge, in chambers, Smith’s efforts to divert traffic may not have been necessary nor, in his opinion, the best course of action, negligence is not proved simply because a subsequent review of the facts would suggest a better and safer course of action. Hickman v. So. Pacific Transport Co., 262 La. 102, 262 So.2d 385 (1972). But hindsight is always blessed with 20/20 vision. The law simply requires that one act reasonably and prudently under the circumstances, not that one take the best course of action. Therefore, in light of the circumstances surrounding the two accidents and the duty placed on Constable Smith to protect the safety of other motorists using the highway, I would conclude that his on-the-spot decision to block and re-route traffic was reasonable.

Smith’s actions, however, did create an obstacle, and he did owe a duty to warn passing motorists of the obstruction on the highway. See La.R.S. 32:141(C). The evidence adduced at trial showed that Smith turned on his emergency blinking lights, placed a flashing red “Kojak” light atop his car and used a flashlight to flag down traffic. Mr. Ellis was positioned further down the road waving down traffic with a 6-volt lantern. Considering the various signalling devices employed by Smith, we conclude that he properly discharged his duty to warn oncoming traffic of the obstacle. See Stevenson v. Delahaye, 310 So.2d 651 (La.App. 1st Cir. 1975); Rowe v. Travelers Ins. Co., 253 La. 659, 219 So.2d 486 (1969).

For these reasons, this writer is unable to find that Roy Smith should be found liable for the accident. Beyond a shadow of a doubt, it was Clifton’s negligence that was the sole and only cause of the accident. As all admit, he failed to observe the warning lights, the activities on the bridge, the activities of Ellis in attempting to flag him down with a lantern, the congestion of the cars on the shoulder of the road, and failed to bring his vehicle under such control as was necessary to avoid the accident. Clifton just failed to see what he could and should have seen, and he was the sole cause of plaintiff’s injuries.

ON APPLICATION FOR REHEARING

PER CURIAM.

In applying for rehearing, the State of Louisiana, through the Attorney General and through the State agencies, has argued that this court should order plaintiff to amend to name the State of Louisiana as party defendant. The opinion of this court held that the State of Louisiana was and is a party defendant. This resulted from plaintiff suing the two State agencies. However, there is nothing to preclude the Attorney General making an appearance on behalf of the State.

The defendants, Roy M. Smith and State Farm Mutual Automobile Insurance Company, have applied for rehearing contending that their third party demands against the State of Louisiana should be remanded to the trial court for consideration. Since Smith was negligent, he and his insurer are precluded from recovery on their third party demands and there is no occasion to remand. The trial court judgment dismissing the third party demand of Smith and State Farm is affirmed.

The applications for rehearing are otherwise denied.

MARCUS, BLANCHE and LEMMON, JJ., would grant as to the issue of the responsibility of the state for the acts of the constable; BLANCHE, J., would also grant as to the liability of the constable.

      . The Department of Public Safety is allegedly insured by Travelers Insurance Company, but the trial court refused to allow a supplemental petition to make Travelers a defendant in that capacity.

      . In Smith’s 1972 election as Constable, he defeated incumbent Huey P. Thompson.

      . Prior to the effective date of Act 722 of 1979.

      . The trial court observed that the disparity here between damages and ability to pay is so great that the two cannot be meaningfully reconciled:
      “The court finds that the ‘inability to pay’ rule is functional only when there is a common ground which can be reached between the damages due a claimant and the financial abilities of the defendant. * * * For these reasons the inability of the defendants to respond in damages is not considered to be applicable and will not be used by the court to reduce the amount of the award.” (Tr. 545)

      . This judgment is, like that of the trial court, “subject to the rights of the intervenor Lawanda Hryhorchuk, if any”. (Tr. 551).


source: Caselaw Access Project

author: WATSON, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Lee Arthur SIMMONS.
    No. 67244.
    Supreme Court of Louisiana.
    Nov. 10, 1980.

      Sam N. Gregorio, Gregorio & Frazier, Shreveport, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., James C. McMiehael, William B. Faust, III, James F. McKay, III, Asst. Dist. Attys., for plaintiff-respondent.
   WATSON, Justice.

Defendant, Lee Arthur Simmons, was convicted on June 16, 1977, at a bench trial of aggravated battery, in violation of LSA-R.S. 14:34. He was sentenced to ten years at hard labor. No appeal was taken by defendant’s counsel from the conviction and sentence, and Simmons now contends that he did not waive his right to appeal.

More than one year after trial, on August 22, 1978, Simmons applied for a transcript so that he could appeal his conviction. The trial court was ordered to furnish the transcript upon payment of costs in advance, but it was discovered that the recordings had been destroyed in a fire at the court reporter’s home on January 31, 1978. Simmons commenced habeas corpus proceedings, contending that he had been denied effective assistance of counsel and that the unavailability of the trial record constituted a denial of his right to appeal. The trial court held that defendant had waived his right to appeal, relying primarily on an affidavit by Simmons’ trial attorney.

William Lowe, Simmons’ court appointed attorney, executed an affidavit on August 15, 1979, two years after trial. The affidavit states that Lowe advised Simmons of his right to appeal on the date of sentencing but Simmons did not request an appeal. Lowe was later contacted by Jeanetta Lewis, Simmons’ “common law wife”, who advised him in three telephone conversations that another attorney had been hired.

An evidentiary hearing was ordered and held. The trial court found that defendant had waived his right to appeal, and denied his request for an out of time appeal. A writ was granted to review that decision.

The issue is whether Simmons intelligently and knowingly waived his right to appeal.

Simmons was aware that appeal was a possibility. He testified that he told his lawyer to appeal immediately after he was sentenced. According to Simmons, his lawyer replied that he would talk to him upstairs in the parish jail, but Simmons never saw him again. Simmons was then placed in maximum security in the Caddo Correctional Institute and did not have access to a telephone.

At the hearing on March 20, 1980, three years after trial, attorney Lowe in effect testified contrary to his earlier affidavit stating:

“I don’t remember ever directly having a conversation with him about the appeal. I’m not saying that I did not do so.... I don’t remember ever discussing it with him directly, after the sentencing for sure, .. . I’m sure that there was some delay between trial and sentencing, but after the sentencing, I certainly did not. I never discussed it with him. . . . ” (Emphasis added.)
* * * * * *
“I don’t remember any contact with him after the trial, before sentencing or during sentencing or after sentencing where we discussed appeal. I don’t remember any contact with him about that.”

Since the affidavit was not a contemporaneous record, there is no reason to give it greater weight than the later testimony. At the hearing, Lowe candidly admitted that it was possible Simmons had mentioned an appeal to him at the sentencing. Lowe was of the opinion that an appeal from a bench trial would be fruitless. Simmons’ testimony that he asked for an appeal is uncontradicted.

The testimony of Simmons’ mother, sister and former paramour was that he repeatedly asked them about his appeal after he was incarcerated. Jeanetta Lewis, married in the interim to a Mr. Perkins, said she had the impression from Lowe that Simmons’ case would be appealed.

Simmons first asked for a trial transcript in August of 1978. The court reporter’s affidavit that the record was destroyed by fire is dated April 16, 1979. Although the fire took place on January 31,1978, there is no evidence that Simmons knew about it prior to the date of the affidavit. The trial transcript request cannot be characterized as resulting from the fire.

The Louisiana Constitution of 1974 provides in Article 1, § 19, for the right to judicial review:

“No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. This right may be intelligently waived. The cost of transcribing the record shall be paid as provided by law.”

There is a constitutional right in Louisiana to an appeal. This right can only be waived by the defendant himself. State v. Marcell, 320 So.2d 195 (La., 1975). Any waiver of right to appeal must be an informed one. Arrastia v. United States, 455 F.2d 736 (5 Cir. 1972); Flanagan v. Henderson, 496 F.2d 1274 (5 Cir. 1974). It is apparent that Simmons was not offered an appeal by his attorney. Lowe admitted that he did not contact Simmons after the sentencing about his right to an appeal. An attorney must advise his client of his appellate rights. Lumpkin v. Smith, 439 F.2d 1084 (5 Cir. 1971); Riser v. Craven, 501 F.2d 381 (9 Cir. 1974).

As stated by the well-known authority on judicial process, Judge Ruggero J. Aldisert:

“... a state’s obligation to furnish counsel is not discharged when the verdict is read and sentence is imposed. The equal protection clause and the due process incorporation of the sixth amendment require that an indigent be afforded the assistance of legal counsel at every critical stage throughout the criminal process. And to insure the effectiveness of such assistance, the appointed trial attorney has been charged with the duty of respecting his client’s desire to file an appeal, even if in his best professional judgment the appeal is utterly without merit.” United States ex rel O’Brien v. Maroney, 423 F.2d 865 at 868 (3 Cir. 1970).

Lowe was apparently misled by Jeanetta Lewis, but her intercession did not relieve him of his obligation to his client. Kent v. United States, 423 F.2d 1050 (5 Cir. 1970). The evidence is that Simmons wanted an appeal, and there is no proof that he waived that right.

For the foregoing reasons, the ruling of the trial court herein is reversed and the trial court is ordered to grant defendant an out of time appeal.

REVERSED AND REMANDED.

      . Author of Aldisert, The Judicial Process, West, 1976.

      . Since an out of time appeal cannot be perfected because of the record’s destruction, it appears a new trial will be necessary. State v. Bizette, 334 So.2d 392 (La., 1976). However, that determination must await further proceedings.


author: DIXON, Chief Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Perry T. CURRY, Sr.
    No. 67429.
    Supreme Court of Louisiana.
    Nov. 10, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
    Walter J. Rothschild, Oestreicher, Whalen & Rothschild, New Orleans, for defendant-appellant.
   DIXON, Chief Justice.

At approximately midnight on March 27, 1979, Albert Johnson was driving down Bienville Street when he noticed two men struggling on the sidewalk. One man was straddled over the other, slashing the victim’s face with a butcher knife. Johnson drove past as slow as he could, then stopped at the corner and watched for about five minutes. He immediately notified the police, who arrived moments later. The victim was dead and there were bloody tennis shoe prints leading away from the body. Perry Curry, who lived in an apartment adjacent to where the murder occurred, soon emerged from the alley leading to his apartment. He asked what was going on. One of the policemen noticed that Curry was wearing tennis shoes, and asked Curry to lift his feet. On the bottom of Curry’s left shoe was blood. When Johnson saw Curry, he rapped on the window of the police car in which he was sitting and shouted that this was the man he had seen.

Curry has been convicted of first degree murder and sentenced to life imprisonment. He has appealed, relying on two assignments of error. We affirm his conviction and sentence.

Assignment of Error No. 1

The defendant contends that the trial judge erred in overruling his motion to suppress the tennis shoes. The thrust of his argument is that Curry’s initial detention was unlawful because not supported by reasonable suspicion as required by C.Cr.P. 215.1. Under the facts of this case, article 215.1 is inapplicable. The officers arrived at the scene of a brutal murder only moments after it had occurred. The defendant suddenly emerged from a dark alley adjacent to where the murder happened. According to the defendant’s own testimony, he approached the scene and inquired what was going on. He voluntarily stood by the other observers when told to do so by the police. He voluntarily responded to the officer’s inquiries. As this court recently stated in State v. Neyrey, 383 So.2d 1222, 1224 (La.1979):

“However, the articulable suspicion requirement of C.Cr.P. art 215.1(A), Article 1, Section 5 of the Louisiana Constitution of 1974, and the Fourth Amendment of the United States Constitution is necessary only where the stop is forcible. See Terry v. Ohio [392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)]; State v. Saia, 302 So.2d 869, (La.1974). Police officers do not need probable cause to arrest, or reasonable cause to detain, in order to converse with citizens. State v. Shy [373 So.2d 145, 147 (La.1979)]. The fact that police approach a citizen and address him does not compel the citizen to respond to the officer. The citizen has the legal right to walk away from the encounter, or simply not to respond. State v. Shy, supra; State v. Brown, 370 So.2d 547 (La.1979)....”

This assignment of error lacks merit.

Assignment of Error No. 2

In this assignment of error, the defendant contends that the trial judge erred in denying his motion for mistrial. The defendant’s theory is that the prosecutor violated C.Cr.P. 770(2) by making references to another crime committed by the defendant. We find that the unfortunate incident that occurred during Curry’s trial does not constitute a violation of C.Cr.P. 770(2).

The state’s case hinged on Johnson’s identification of Curry. Johnson testified that at the time of the murder Curry was wearing a white, short-sleeved T-shirt, but that at the time of his arrest he was wearing a flowered shirt. The clothing that Curry was wearing at the time of his arrest was taken from him by Richard Stricks, an attorney who visited Curry eighteen hours after the arrest.

The prosecutor in this case had a booking photograph of Curry which he erroneously believed to have been taken in connection with the instant arrest. During cross-examination of Stricks, the picture was shown to the witness. Through questioning of the witness, it was brought out that this was a booking photograph and that Curry was wearing a light colored sleeveless tank top. During redirect examination, Stricks was asked by defense counsel whether the photograph indicated when it was taken. The witness responded, “It looks like March 31, 1978.” The defendant was arrested for the instant murder on March 27, 1979. At this point, defense counsel unsuccessfully sought a mistrial, urging that the above incident constituted a violation of article 770(2), which provides:

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

We note at the outset that article 770’s mandatory mistrial remedy is available for both direct and indirect comments. Inasmuch as the prosecutor in this case never directly referred to any other crimes committed by Curry, any violation would have had to have been by an indirect reference. It is ofttimes difficult to distinguish between such indirect references, and other innominate types of prosecutorial blunders. This court, in a recent interpretation of article 770(3), dealing with comments on the defendant’s failure to take the stand, discussed the test to be applied in determining whether an indirect reference was made:

“The purpose behind the rule embodied in article 770(3) is to prevent attention from being drawn to the fact that the defendant has not testified in his own behalf. When the remark directly points out that the defendant has not testified, it is irrelevant whether the prosecutor intended the jury to draw unfavorable inferences from defendant’s silence. See State v. Johnson, 345 So.2d 14 (La.1977). Nor is this court allowed to speculate on the effect that the remark had on the jury. State v. Hall, 297 So.2d 413 (La.1974). When a remark directly refers to the defendant’s failure to take the stand, the statute mandates that the defendant be granted a mistrial if he requests one. State v. Marcello, 375 So.2d 94 (La.1979). This court will inquire into the intended effect on the jury only to distinguish between indirect references to the defendant’s failure to testify and statements that the prosecution’s case is unre-butted. State ex rel. Clark v. Marullo, 352 So.2d 223 (La.1977); State v. Frank, 344 So.2d 1039 (La.1977); State v. Reed, 284 So.2d 574 (La.1973); State v. Bentley, 219 La. 893, 54 So.2d 137 (1951); State v. Antoine, 189 La. 619, 180 So. 465 (1938). The latter reference is generally permissible. If, however, the defendant is the only one who can dispute the testimony, then ‘a reference to the testimony as uncontroverted focuses the jury’s attention on the defendant’s failure to testify....’ State v. Perkins, 374 So.2d 1234, 1237 (La.1979).” State v. Fullilove, 389 So.2d 1282 (La.1980).

In the instant case, the jury was never shown the photograph. Stricks’ testimony was equivocal in that he merely stated that the photo looks like a booking photograph. Furthermore, the prosecutor’s error in this case was an innocent one and not one done purposefully to draw attention to prior crimes committed by the defendant. The only way that the jury could have realized that this photograph was from a prior arrest was if they remembered the exact date of this crime, then noted that the date on the photograph was different. The connection was never spelled out for them. It is plausible that the jury still believed this photograph to be the one from the instant case. Had this photograph been from the instant case, such a fact would have been favorable to the defendant. The suggestion had already been made at trial that the defendant could have been wearing the T-shirt underneath his flowered shirt. Such a theory would have been weakened.if, instead of a T-shirt, he was wearing a tank top.

Of course, we can only speculate what inferences the jurors drew from the incident. Unless the inference is plain that the prosecutor commented on other crimes committed by the defendant, article 770 is inapplicable. We hold, therefore, that the action of the prosecutor in this case, albeit a blunder, did not constitute an indirect reference to other crimes committed by the defendant.

This assignment of error lacks merit.

The conviction and sentence are affirmed.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I respectfully concur in the result. There was no need, however, for the majority’s continued exposition of the fictional “freedom to walk away.” See State v. Shy, 373 So.2d 145, 148 (La.1979) (dissenting opinion). As the majority opinion itself indicates, the officers did not approach the defendant under circumstances in which detention seemed imminent. Moreover, the approach of defendant wearing tennis shoes from the alley into which the assailant’s bloody footprints led justified a detention for questioning.


text:
    STATE of Louisiana v. John Paul TOLBERT.
    No. 67504.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    Robert L. Kennedy, Thomas G. Wilson, Colfax, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Billy G. Lutes, Dist. Atty., Joseph P. Beck, II, Asst. Dist. Atty., counsel for plaintiff-appellee.
   WATSON, Justice.

Defendant, John Paul Tolbert, indicted for second degree murder, was convicted of manslaughter, in violation of LSA-R.S. 14:31, by a ten to two jury vote. He was sentenced to eighteen years at hard labor and has appealed, assigning four errors in the trial court.

FACTS

On July 17, 1976, Tolbert shot and killed Hildred Phillips in a barroom known as McKinney’s Cafe or Jake’s Place. Richard McKinney, the proprietor of the barroom, was involved in a dispute with Virginia Aaron Jenkins. Tolbert undertook the defense of Virginia, and Phillips took up the quarrel on behalf of his cousin McKinney. Phillips and Tolbert had not had any prior differences, although they had known each other for many years. The two had words and Tolbert pushed Phillips to the floor. Tolbert then reached for his gun, but dropped it. Tolbert put his feet over the gun, then picked it up, and fired one shot at Phillips before leaving the scene. The bullet pierced Phillips’ aorta and he bled to death. Tolbert fled the jurisdiction and visited the states of Washington and Alaska before being apprehended by the FBI in New Orleans in the fall of 1979. Tolbert testified that he thought Phillips was reaching for a gun, and he shot in self-defense. Most of the witnesses indicated that Phillips had given up the quarrel and was lying cravenly on the floor. Phillips had been armed on another occasion but was without a weapon when he was shot.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the trial court erred in allowing the prosecutor to read LSA-R.S. 14:20(3) to a prospective jur- or in the presence of other jurors and misinform them about the duty to retreat. LSA-R.S. 14:20(3) states:

“A homicide is justifiable when committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or place of business while committing or attempting to commit a burglary of such dwelling or business. The homicide shall be justifiable even though the person does not retreat from the encounter.”

The prosecutor told a prospective juror, Mrs. Soja N. Collins, that one who can retreat and end a conflict is required to do so unless in his own home or place of business, reading from LSA-R.S. 14:20(3). The jury was instructed at that point that the lawyer’s arguments about the law were not to be taken as evidence and that the judge would tell them the law. Later, during her voir dire examination, Mrs. Collins and the other jurors present were instructed by the judge that:

“. .. A homicide is justifiable if committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
******
“... The danger need not have been real as long as the defendant reasonably believes that he was in actual danger.
******
“... some factors you should consider in determining whether the defendant had a reasonable belief that the killing was necessary are one, the possibility of avoiding the necessity of taking of human life by retreat.
******
“. .. Two, the excitement and confusion of the occasion.
******
“Three, the possibility of preventing the danger to himself by using force less than killing.
******
“... And the other, the defendant’s knowledge of his assailant’s dangerous character.
“... and those are ... some of the reasons you would have to take into consideration.” (Tr., pp. 448-450)

The jurors were told that the feasibility of retreat is only one factor in assessing a defendant’s guilt. The erroneous implication by the prosecutor that there is a categorical duty to retreat was clarified both at voir dire and in the later charge to the jury. The prosecutor’s misstatement of the law did not prejudice the defendant. State v. Burge, 362 So.2d 1371 (La.,1978). Moreover, on the evidence presented, the jury could not reasonably have believed that Tol-bert acted in self-defense.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends that the trial court erred in not charging the jury with requested special charge number three, a lengthy explanation of self-defense. The substance of special charge number three was included in the general charge and the special charge was superfluous. LSA-C. Cr.P. art. 807.

This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NUMBER THREE AND FOUR

Defendant requested two jury charges to the effect that lack of motive is a circumstance favorable to the accused and may be considered as mitigating against specific intent. State v. Mart, 352 So.2d 678 (La.,1977) held that a defendant was entitled to those charges to modify a general charge on motive. The trial judge here correctly concluded that the two charges were not pertinent because there was no general charge on motive and no significant evidence of lack of motive.

These assignments of error lack merit.

For the foregoing reasons, the conviction and sentence of defendant, John Paul Tol-bert, are affirmed.

AFFIRMED.

      . Special requested charges 4 and 5 read as follows:
      “SPECIAL CHARGE REQUESTED CHARGE NUMBER 4
      “While it is true that crimes are committed without any apparent motive and while proof of motive is never essential to conviction, the failure on the part of the prosecution to prove any fact calculated to have produced this condition of mind in the accused to commit the crime is a circumstance favorable to the accused.
      “SPECIAL CHARGE REQUESTED CHARGE NUMBER 5
      “The law considers that no man does any act without a motive for doing it ... it is not necessary to establish a motive to warrant a conviction; however, you as jurors, should be instructed that a lack of motive may properly be considered as a circumstance mitigating against specific intent.”


author: MARCUS, Justice.

text:
    James BUCKLEY et al. v. EXXON CORPORATION et al.
    No. 67532.
    Supreme Court of Louisiana.
    Nov. 10, 1980.

      C. Allen Bradley, Jr., Evans, Bradley & Wallace, DeRidder, for plaintiff s-applicants.
    Richard A. Chopin, Nelson W. Wagar, III, New Orleans; William E. Hall, Jr., Hall, Lestage & Lestage, DeRidder, for defendants-respondents.
   MARCUS, Justice.

James and Earline Buckley, individually and on behalf of their minor child, Joel Buckley, instituted this action to recover damages sustained as a result of an accident involving a tractor-trailer truck driven by Gilbert L. Royer. Named defendants were Gilbert L. Royer and Exxon Corporation, his employer. After a trial by jury, a special verdict was returned finding that Royer was not negligent, or if he was, his negligence was not a proximate cause of the accident. The trial judge rendered judgment in accordance with the verdict in favor of defendants and against plaintiffs dismissing plaintiffs’ suit at their cost. The court of appeal affirmed in an opinion not designated for publication. On plaintiffs’ application, we granted certiorari to review the correctness of that decision.

The evidence adduced at trial established the following facts. On Saturday morning, April 2, 1977 Gilbert L. Royer, an employee of Exxon acting within the course and scope of his employment, was driving a truck owned by Exxon on Mahlon Street, one of the main thoroughfares in DeRidder, Louisiana. Traffic moves one way in a westerly direction on the street which contains two traveling lanes and a parking lane on the north side of the road. The weather was clear and dry at the time. The truck driven by Royer was an 18-wheel tractor-trailer truck measuring fifty feet in length and weighing about 80,000 pounds because of its load of diesel fuel. Royer was on his way to deliver fuel to Hyde’s Bulk Exxon Plant which is located on the south side of Mahlon Street. It was Royer’s practice on Saturdays to park his truck in the parking lane and then walk across Mahlon Street to unlock the plant’s entrance gate which was always locked on weekends.

At approximately 9:30 a. m., Joel Buckley, the seven-year-old son of Earline Buckley, was riding his bicycle accompanied by his older sister, Scherrell Lewis, age 10, and his older brother, Purvis Lewis, age 9. Joel was small for his age, weighing only about 32 pounds. He was an inexperienced poor bike rider. The children left their home on Mahlon Street to ride around the block. As they approached the corner of Mahlon and Branch Streets, they stopped briefly. At this location, Mahlon Street is slightly downgrade as one heads westward. Scherrell began riding her bike in a westerly direction on the unpaved dirt and grass footpath located two to three feet from the curb adjacent to the parking lane on the north side of Mahlon Street. Purvis got off his bike and pushed Joel and his bike to help get his younger brother going. Joel initially wobbled and had trouble reaching the pedals with his feet but soon straightened up and headed down the footpath behind his sister. The grass along the shoulder of the road was wet.

At this time, Royer approached the intersection of Mahlon and Branch Streets. In preparation for parking his truck in the parking lane, Royer illuminated his emergency flashers, began braking his truck and moved his truck toward the right into the parking lane. He stated that he saw the children riding their bikes on the footpath as he passed Branch Street but did not perceive any child to be in danger. He further testified that at the time the cab of his truck passed the children, he was about two to three feet from the curb and moving at about 15 miles per hour. He continued to slow down and move into the parking lane and he diverted his attention from the children to look for traffic on the driver’s side and behind his vehicle. It was not until he brought his truck to a complete stop about six inches from the curb that he realized that there had been an accident involving his truck and one of the children.

As Scherrell and Joel were heading down the footpath on their bikes, the cab of the truck came up from behind and moved toward the curb and the children. Although Joel’s deposition is not entirely clear regarding what portion of the truck passed him at this time, both Joel and Scherrell testified at trial that before the accident only the cab of the truck went past them. Scherrell stated that the truck was loud and it scared her. She further testified that she slowed down, got off her bike and looked back and saw Joel fall under the truck. She then hollered at the truck driver because she thought the truck was going to hit her brother Joel. Although Royer testified that his air brakes, which make a hissing sound when pumped or released, did not make any noise, all the children testified that they heard a hissing sound. Joel testified that the noise scared him, and when he tried to apply his brakes, he lost control of his bike. The bike toppled over on him and skidded on the wet grass into the street under the rear wheels of the truck. Both of Joel’s legs were injured in the accident.

La.Civ. Code art. 2315 provides in pertinent part:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

La.Civ. Code art. 2316 further directs:

Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.

Under these articles, the elements of a cause of action are fault, causation and damage. Straley v. Calongne Drayage & Storage, Inc., 346 So.2d 171 (La.1977); Pence v. Ketchum, 326 So.2d 831 (La.1976); Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976); Weiland v. King, 281 So.2d 688 (La.1973).

The jurisprudence of this state places a high degree of care upon a motorist who sees a child on or near the road and imposes upon him a duty to anticipate that the child, possessed of limited judgment, might be unable to appreciate impending danger, is likely to be inattentive, and might suddenly place himself in a position of peril. Dufrene v. Dixie Auto Insurance Co., 373 So.2d 162 (La.1979), and cases cited therein.

We are convinced that Royer was negligent in that he failed to exercise the high degree of care required of him under the facts and circumstances here presented. Although Royer observed the young children on bicycles along the side of the road, he began pulling his tractor-trailer into the parking lane toward the children. He continued to move his truck toward the curb even though Joel and Scherrell were at most six feet from the cab of his truck when he passed them from behind. Although Royer was driving slowly as his cab passed them, he was still moving his truck ever closer to the curb and the children. He failed to take any action designed to anticipate that the children might become frightened by the huge truck approaching them in such close proximity and, due to their limited experience and judgment, suddenly place themselves in a position of peril. Clearly, Royer’s actions were unreasonable under the circumstances. He should have either slowed down sooner and come to a complete stop in the parking lane before reaching the children or not made the stop while the children were located where they were.

We further find that Royer’s negligence was the sole proximate cause of the accident. The evidence is clear that both Joel and Scherrell became scared when the huge truck moved toward them. Joel’s fright of the approaching truck caused him to lose control of his bike and skid off the shoulder of the road into the parking lane under the wheels of the truck.

Because Royer’s negligence caused the accident, he is liable to plaintiffs for damages resulting from the accident. Exxon Corporation is also liable for damages because the accident occurred while Royer was acting within the course and scope of his employment with Exxon.

Accordingly, the jury was clearly wrong in finding that Royer was not negligent or, if he was, his negligence was not a proximate cause of the accident. The court of appeal erred in affirming the judgment of the trial court dismissing plaintiffs’ action. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

As the court of appeal affirmed the judgment of the trial court dismissing plaintiffs’ action, it did not address the issue of quantum. We therefore consider it more appropriate to remand the case to that court for it to determine the amount of plaintiffs’ recovery.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and the case is remanded to the court of appeal for further proceedings consistent with the views herein expressed.

      . During trial, defendants raised the peremptory exception of no right of action of James Buckley to bring this action on behalf of Joel Buckley because Joel Buckley was bom fourteen months prior to the dissolution of an earlier marriage between his mother, Earline Buckley, and Purvis Lewis and no action to disavow paternity had been filed. Based on a joint stipulation of these facts and no objection by counsel for James Buckley, the trial judge sustained the exception and dismissed James Buckley from the lawsuit; Earline Buckley remained a party plaintiff to assert the claims made in the petition.

      . 385 So.2d 265 (La.1980).


author:
PER CURIAM.
      MARCUS, Justice LEMMON, Justice,

text:
    Patricia Coogan, wife of/and William Stephan LAMBERT v. The PARISH OF JEFFERSON.
    No. 67592.
    Supreme Court of Louisiana.
    Nov. 10, 1980.

      Hubert A. Vondenstein, Parish Atty., Byrne W. Dyer, III, Warren E. Mouledoux, Jr., Asst. Parish Attys., for defendant-applicant.
    William H. Reinhardt, Jr., Metairie, for plaintiff-respondent.
   PER CURIAM.

This is a zoning dispute over property in Jefferson Parish zoned R-3, multifamily residential. An Exxon Corporation service station once operated on the site. The station had been closed for over a year on October 25, 1977, when Exxon filed a petition to have the zoning changed from R-3 to C-l, commercial. Plaintiffs had made an offer to purchase in August contingent on the rezoning being granted. The Jefferson Parish Council denied the request on March 18, 1978. Plaintiffs, Patricia Coogan and William Stephan Lambert, purchased the property on August 21, 1978. On September 6, 1978, plaintiffs filed a “Petition for Injunction” alleging that the refusal to rezone the property was unreasonable, arbitrary and capricious and amounted to a taking without just compensation. Plaintiffs asked for an injunction ordering the Parish of Jefferson to amend its zoning ordinance and reclassify their property to C-l.

A mandatory injunction issued ordering the reclassification of the property described as Lots 23 and 24 of Square 3, Metairie Ridge Nursery Subdivision, Parish of Jefferson. The trial court concluded that plaintiffs had standing to contest the zoning as parties at interest under LSA-C.C.P. art. 681 and that the refusal to rezone the property was unreasonable, arbitrary and capricious for the following reasons: a six story office building with commercial uses is next door; the property fronts on Metair-ie Road, a Louisiana state highway which is a major traffic artery for Jefferson Parish and carries in excess of 16,000 cars per day; a gasoline service station existed on the tract for 50 years; and the property is surrounded by other commercial uses. The testimony established that the zoning change would not adversely affect the neighborhood, that retail-commercial would be the highest and best use of the property, and that there was no reasonable basis for the refusal to rezone.

The Court of Appeal affirmed the trial court judgment, 381 So.2d 1320 (La.App. 4 Cir. 1980). The dissenting judge stated that plaintiffs were barred from seeking judicial review by the thirty day limitation period in LSA-R.S. 33:4727. A writ was granted to review the application of that statute to plaintiffs’ suit. 385 So.2d 786 (La., 1980). The issue on appeal is whether that statute applies in this instance.

Title 33 of the Revised Statutes concerns municipalities and parishes. Chapter 14 entitled “Exercise of Police Power” deals in Part I with “Building Regulations.” Sub-Part A of Part I, Chapter 14, Title 33, is entitled “Municipal Zoning Regulations.” Section 4727 of that Sub-Part, LSA-R.S. 33:4727, provides that boards of adjustments may be established by local legislative bodies. A board of zoning adjustment hears and decides appeals in connection with zoning regulations. A board of zoning adjustment is not mandatory and there was no board of adjustment established here. The thirty day limitation period in LSA-R.S. 33:4727 only applies to those “aggrieved by any decision of the board of adjustment, or any officer, department, board, or bureau of the municipality.” Neither a municipality nor a board of adjustment is involved here. Therefore, the statute is inapplicable to plaintiffs’ suit.

For the foregoing reasons, the judgment of the trial and appellate courts is affirmed.

AFFIRMED.

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

MARCUS, Justice

(dissenting).

I dissent. The court of appeal affirmed the judgment of the district court directing the Parish of Jefferson to change the zoning classification of plaintiffs’ property from R-3 (multi-family residential) to C-l (neighborhood commercial). The courts below held that the Jefferson Parish Council’s denial of plaintiffs’ request for a zoning change was unreasonable, arbitrary and capricious. Even assuming the non-applicability of La.R.S. 33:4727, I disagree. Accordingly, I would reverse the judgment of the court of appeal affirming the judgment of the district court.

LEMMON, Justice,

dissenting.

I agree with the dissenting judge in the court of appeal. However, even if the 30-day period of R.S. 33:4727 is not applicable, there must be some point in time when the decision of the Parish Council becomes definitive and no longer subject to change upon judicial review. If no period of time is specified, then judicial review must be sought within a reasonable time. Six months is beyond a reasonable time.

      . The original request was for a change to C-2 but the request was modified after the public hearing on the rezoning.


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Bernard ABADIE and Frankie Schielder.
    No. 67723.
    Supreme Court of Louisiana.
    Nov. 10, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., John H. Craft, Leon A. Cannizzaro, Asst. Dist. Attys., for plaintiff-relator.
    Edward A. Kunz, New Orleans, for Bernard Abadie.
    John P. Ferrara, New Orleans, for Frankie Schielder, defendants-respondents.
   LEMMON, Justice.

We granted the district attorney’s application for certiorari in order to review the trial court’s suppression of evidence seized by police officers following their warrant-less entry into an apartment.

Shortly after midnight on March 12,1980, Donald James called the police after observing several men carrying a safe into a house in his neighborhood. When police officers arrived at the scene, James identified himself and described his observations. As he was speaking with the police, the witness observed a man apparently hiding under the stairway of a house in the block and identified him as one of the men seen carrying the safe. The person hiding under the stairway then fled around the side of the house, and the officers followed in close pursuit as he ran into the side apartment, leaving the front door open (although the screen door closed behind him). The officers approached the apartment and saw (through the screen door) a safe on the floor, surrounded by three men who were attempting to pry it open, with various tools. The officers immediately ordered the men to come out of the apartment. They complied, .but when the officer heard other people running in the apartment, he entered the three-room apartment and located a man and a woman hiding in the bathroom behind the shower curtain. The officers seized the unopened safe containing $7500, a pillowcase containing 3060 pennies, and a .38 calibre pistol. The safe and pennies, it was subsequently learned, were stolen during a burglary earlier that same evening.

Unquestionably, the officers acted reasonably when they pursued the fleeing man to the threshold of the apartment. The report of suspicious activity, combined with the suspect’s flight, certainly justified further investigation. Although it is not criminal conduct to carry a safe around in public during early morning hours or to run when pointed out to officers, these actions raised an inference of criminal activity. See State v. Phillips, 347 So.2d 206 (La.1977).

The apparent attempt to hide and the flight by the original suspect perhaps did not alone justify an inference of criminal behavior. But when combined with the report of the suspect’s highly unusual activity with the safe, the suspect’s behavior justified a limited detention for further investigation. As we said in State v. Cook, 332 So.2d 760 (La.1977):

“The right to make an investigatory stop must be based upon reasonable cause sufficient to suspect the detainee of past, present, or imminent criminal conduct. State v. Weathers, 320 So.2d 892 (La.1975); State v. Winesberry, 256 La. 523, 237 So.2d 364 (1970). As these decisions note, the reasonable cause must be determined, under the facts of each case, by whether the officers had sufficient knowledge of particular circumstances sufficient to permit them to infringe upon the individual’s right to be left alone free of governmental interference with his liberty.” 332 So.2d at 762.

In this case there was nothing unreasonable about the officers’ pursuit of the suspect which brought them face to face with the other men attempting forcibly to open the safe. This conduct did not constitute the active creation of a “street encounter” by an officer. See State v. Saia, 302 So.2d 869 (La.1974). Because the facts available to the pursuing officers gave them an artic-ulable ground to suspect that criminal activity was afoot, they were entitled to effect a forcible stop and hence were entitled to attempt to prevent the suspect’s flight. See State v. Cook, above.

Furthermore, when the officers confronted the men attempting to force the safe open, they had probable cause to believe that a crime had been committed. Probable cause, as we have so often repeated, is far less than proof required to convict and must be determined in light of the ordinary experience of reasonable men. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). When police officers are aware that men had hauled a safe under cover of darkness during early morning hours, had fled at the sight of uniformed officers, and had attempted to pry the safe open, they have probable cause to believe that criminal activity was afoot.

In State v. Phillips, above, police responded to an anonymous tip and found a safe with signs of attempted forcible entry. The tip and the officers’ observations gave officers probable cause to arrest Phillips, although the officers did not discover until later the specific burglary in which the-safe was stolen. Under that interestingly similar factual situation, we stated:

“While the officers need not be able to negate all possible lawful explanations of a situation before making an arrest, they must have within their knowledge information upon which to reasonably base a belief that the person to be arrested is criminally connected with the circumstances.” 347 So.2d at 209.

Because the officers in this case, when standing outside the apartment where their pursuit of the suspect had led them, were immediately confronted with the need to arrest and detain the suspects observed inside the apartment, they acted reasonably in first ordering the occupants to come outside. And then when two of the suspects rejected the command and tried to escape, the officers were confronted with exigent circumstances justifying their warrantless entry into the apartment to arrest (seize) those two suspects, as well as to secure the safe and its contents. The officers were clearly confronted with the sort of emergency which justified prompt warrantless action, based upon the officers’ own correct assessment of probable cause.

The decision of the United States Supreme Court in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), does not affect the lawfulness of the officers’ entry upon private premises to ar.rest in this case. It has long been recognized that police acting with probable cause may effect warrantless entries to search and arrest when confronted with a situation, such as here, in which prompt action is necessary to prevent the flight of alerted suspects and possible destruction or removal of evidence. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). The Payton decision only barred warrant-less arrests following non-consensual entry into the suspect’s house under circumstances in which there was no justification for the officers’ failure first to present their facts to a neutral magistrate and to obtain judicial approval prior to the invasion of the suspect’s house. Here, there was plainly no time for that procedure, since suspects were scampering away and evidence was within the immediate view of the police. The entry to arrest and to secure the safe was clearly supported by probable cause and was reasonable under the circumstances, despite the absence of prior judicial approval.

Once inside, the officers were authorized to search for the hidden culprits and to examine immediately accessible areas to secure weapons (such as the .38 pistol) for the purpose of self-protection. In conducting this search, the officers discovered the pennies and the pistol and lawfully seized these items. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Warden v. Hayden, above.

Just as the unusual and suspicious circumstances were sufficient to support probable cause to arrest the defendant, they also support the reasonableness of the seizure of the safe and pennies. The fact that the officers did not learn until later of the specific burglary, from which the loot was stolen, does not defeat the finding of probable cause.

Hence, the trial court erred in sustaining the motion to suppress.

The judgment sustaining the motion to suppress is reversed, and the motion is denied. The matter is remanded for further proceedings.

JUDGMENT GRANTING MOTION TO SUPPRESS REVERSED; MOTION DENIED; REMANDED.

      . James offered to testify at the hearing on the motion to suppress, but his testimony was stipulated by both sides. His credibility and the reliability of his eyewitness report are not questioned by defense counsel. Therefore, this case does not involve the report of a faceless police informant, but rather that of a community-minded citizen who relayed firsthand observations of suspicious activity, identified himself, and expressed a willingness to testify. The officers thus had a substantial basis for crediting the report. See United States v. Bell, 457 F.2d 1231 (5th Cir. 1972); United States v. Burke, 517 F.2d 377 (2d Cir. 1975); United States v. Darensbourg, 520 F.2d 985 (5th Cir. 1975).

      . The officers were able to observe the men and the safe from a vantage point where they had a right to be. Put otherwise, the safe and suspects, although inside the apartment, were in “plain view” through the open door when the police officers reasonably pursued the first suspect to the threshold. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

      . Information conveyed by a third person to an officer may justify a stop. The stop does not have to be justified solely on the firsthand observations of the officers. State v. Jernigan, 377 So.2d 1222 (La.1979); State v. Bolden, 380 So.2d 40 (La.1980).

      . Compare State v. Washington, 364 So.2d 958 (La.1978); State v. Truss, 317 So.2d 177 (La.1975).

      . The pillowcase containing the pennies was located on top of a dresser, only a few feet from the safe.


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

text:
    STATE of Louisiana v. Cornelius VIRGIL.
    No. 67765.
    Supreme Court of Louisiana.
    Nov. 10, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Fred P. Harper, Jr., Asst. Dist. Atty., for plaintiff-relator.
    Calvin Johnson, New Orleans, for defendant-respondent.
   DIXON, Chief Justice.

The defendant was charged with violation of R.S. 14:95.1, possession of a firearm by a convicted felon. The bill of information recited that defendant had been convicted in 1976 of simple burglary, which is one of the crimes enumerated in R.S. 14:95.-1. Defendant filed a motion to quash the information on the basis that the prior conviction was obtained through a guilty plea that did not conform with the standards established in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The district court granted the motion, and the state seeks review of that ruling.

Boykin v. Alabama, supra, held that a guilty plea cannot be accepted without an affirmative showing, spread on the record, that the plea was intelligently and voluntarily made. In order to evidence the intelligent and voluntary nature of the plea, the record must indicate that the defendant was informed of the privilege against self-incrimination, the right to trial by jury, and the right to confront one’s accusers. This court recognized the Boykin decision in State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), and later applied the Boykin standards to sentence enhancement proceedings in State v. Lewis, 367 So.2d 1155 (La.1979). In State v. Martin, 382 So.2d 933 (La.1980), it was held that a guilty plea must meet the standards of Boy-kin in order to be used against a convicted felon who is charged with possession of a firearm. At issue, then, is whether the defendant in the present case was properly “Boykinized” when he entered a plea of guilty to the charge of simple burglary.

The following colloquy occurred between the trial judge and the defendant when the 1976 guilty plea was made:

“By the court: When you plead guilty . . . you waive certain constitutional rights. You have a right to trial, trial by jury, but when you plead guilty you’re waiving your right to trial by jury. You are also waiving your right to be tried by the judge if you wanted to. Do you understand that . . . ?
By defendant Virgil: Yes, sir.
By the court: When you waive your right to trial, you also waive your right to question the witnesses against you, your right to remain silent and your right to take an appeal if you were found guilty at trial. Do you understand that?
By defendant Virgil: Yes, sir.”

Whilé the defendant concedes that he was fully apprised of his right to trial by jury and his right of confrontation, he contends that he was not adequately informed of his privilege against self-incrimination, and argues that his guilty plea is for that reason invalid.

The state urges this court to reevaluate its holding in State v. Martin, supra, in light of the recent United States Supreme Court decision in Lewis v. United States, 455 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980). In that opinion, the United States Supreme Court held that a valid prior conviction is not required as a predicate for charging a felon with possession of a firearm under a federal statute similar to R.S. 14I95.1. Based upon that holding, the prosecution argues that defendant should not be permitted to make a “collateral attack” on his prior conviction in order to question the validity of the firearms charge.

In Lewis v. United States, supra, the court cited a scant legislative history in which the sponsor of the legislation “repeatedly stressed conviction, not a ‘valid’ conviction, and not a conviction not subject to constitutional challenge, as the criterion” for prosecuting a convicted felon under the federal firearms statute. 455 U.S. at 62, 100 S.Ct. at 919, 63 L.Ed.2d at 207. The court then concluded that the government was not required to prove the validity of the predicate conviction. In contrast to the tenor of Lewis v. United States, Louisiana courts are forbidden “to create crimes not provided for” in the provisions of the Criminal Code, which also requires the courts to give the provisions of the law “a genuine construction, according to the fair import of their words, taken in their usual sense ...” R.S. 14:3. To hold that the word “convicted,” as used in R.S. 14:95.1, could genuinely be construed to include invalid, unconstitutional convictions would be to ignore that duty. Nor are we required to hold that the United States Supreme Court’s interpretation of a federal statute involving a unique legislative history is controlling in this jurisdiction, even though the statute is similar to Louisiana’s. Compare State v. Holden, 375 So.2d 1372 (La.1979) (Dixon, J., dissenting).

The United States Supreme Court in Lewis v. United States, supra, seems to have reached its decision by application of a doctrine which has not been employed in Louisiana since the Boykin case: “collateral constitutional challenge” of an invalid conviction was not permitted. We have yet to apply this federal (or common law?) doctrine, but have generally adopted a straightforward attitude in “Boykin” cases; an unconstitutional Louisiana conviction cannot be employed by the state to the prejudice of a defendant.

We therefore reaffirm our holding in State v. Martin, supra, as dispositive of this case. Significantly, that decision involved the acceptance of a guilty plea by a judge who omitted any reference “to the defendant’s right to stand trial without being forced to testify against himself.” 382 So.2d at 936. The defendant in that case was only informed of the non-trial aspect of the privilege against self-incrimination, which may have prevented him from intelligently determining his chances of success or failure in a trial.

However, in the case before us, the record of the guilty plea proceeding shows that the defendant was fully apprised of his right to exercise the privilege against self-incrimination in a trial: “When you waive your right to trial, you also waive ... your right to remain silent ...” This language plainly indicated to the defendant that the right to remain silent is one of the rights that may be exercised at trial. The clear import of the words is that, if the defendant chose to stand trial, he could not be compelled to. testify against himself. For that reason, the case is different from State v. Martin, supra. The defendant here was adequately informed of his right to remain silent during trial.

The decision of the trial court in granting the motion to quash the information filed against the defendant is reversed, and the case is remanded for further proceedings.

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

BLANCHE, J., concurs but is of the opinion that State v. Martin, 382 So.2d 983 (La.1980) should be overruled.

LEMMON, Justice,

concurring.

R.S. 14:95.1 is a status crime. If a person wrongly in the status of a convicted felon wants to carry a firearm, he must bring an action to correct that status before doing so.

MARCUS, Justice

(concurring).

Although I agree with the majority that defendant was properly “Boykinized” in the instant ease, I find it unnecessary to reach that issue as I consider State v. Martin, 382 So.2d 933 (La.1980), which allowed a “collateral attack” of the predicate conviction when defendant was charged and convicted of La.R.S. 14:95.1, should be overruled in view of the United States Supreme Court decision of Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980). Accordingly, I respectfully concur.

      . The defendant in Lewis v. United States, supra, was charged with violating 18 U.S.C.App. § 1202(a)(1), which makes it unlawful for any person who “has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony” to possess a firearm.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Raymond R. CACIOPPO and Andrew Q. Sercovich.
    No. 67829.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Leon A. Cannizzaro, Louise S. Korns, John Craft, Asst. Dist. Attys., for plaintiff-relator.
    G. Patrick Hand, New Orleans, for defendant-respondent.
   DENNIS, Justice.

In this gambling prosecution, after having moved for and received handwriting exemplars from the defendants, the state-moved for additional exemplars. After a hearing the trial judge denied the state’s motion for additional exemplars. We granted the state’s application for a writ of certiorari to determine if the judge abused his discretion in denying the state’s second request. We affirm the trial judge’s ruling.

In its motion for additional exemplars the state did not state any reason why the additional exemplars were necessary. At the hearing on the motion the state’s attorney informed the court that the police officer who had taken the sample felt that there was not a “sufficient quantity” to make any analysis of the original sample. The state, however, did not claim that the defendants had failed to comply with the instructions given to them when they gave the first sample. In fact, the state offered no explanation of why the original exemplar was inadequate. The judge examined a sample and remarked that it contained a whole page of handwriting on which a defendant had copies specified lists of names, numbers, and alphabets. The court found the exemplars were sufficient to provide the basis for handwriting analyses. The state’s attorney requested a recess of four days to allow him to call an expert witness to explain why the original exemplars were insufficient. The trial judge refused to grant the recess and denied the motion on the basis of the allegations and argument presented. The judge expressed a concern that the state’s request for additional exemplars could be based on nothing more than its intention to “try and try again” until it obtained an incriminating exemplar.

The Supreme Court has made clear that the obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels-the “seizure” of the “person” necessary to bring him into contact with government agents, see Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), and the subsequent search for and seizure of the evidence. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Furthermore, the high court has held that the constitutionality of the compulsory production of voice and handwriting exemplars from a grand jury witness necessarily turns on the same dual inquiry-whether either the initial compulsion of the person to appear before the grand jury, or the subsequent directive to make the voice recording or to produce handwriting and printing exemplars is an unreasonable “seizure” within the meaning of the Fourth Amendment. United States v. Dionisio, supra; United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973).

In answering the first inquiry, the high court concluded that a subpoena to appear before a grand jury is not a “seizure” in the Fourth Amendment sense. The compulsion exerted by a grand jury subpoena differs from a seizure effected by an arrest or even an investigative “stop” because the personal sacrifice involved is a part of the necessary contribution of the individual to the welfare of the public and because a subpoena is served in the same manner as other legal process; it involves no stigma whatever; if the time for appearance is inconvenient, this can generally be altered; and it remains at all times under the control and supervision of a court. However, the court was careful to point out that the Fourth Amendment provides protection against a grand jury subpoena duces tecum too sweeping in its terms “to be regarded as reasonable.” Dionisio, supra, 410 U.S. at 11, 93 S.Ct. at 770, 35 L.Ed.2d at 92.

Construing the prosecution’s motions for exemplars herein in the light most favorable to the state, i. e., as a request for a subpoena to appear and produce handwriting exemplars, see articles 66, 439, 732 of the Code of Criminal Procedure, the trial judge had a duty to vacate or modify the subpoena if it was unreasonable or oppressive. Article 732, Code of Criminal Procedure. Reviewing the trial judge’s action in the present case in this context, we conclude that he did not abuse his discretion by refusing a second compulsion of the defendants to appear and produce handwriting and printing exemplars. In view of the defendants’ full compliance with the state’s initial request for exemplars, which were written on forms supplied by the state, and the prosecution’s failure to allege any reason why the initial exemplars were not sufficient, a further subpoena or order requiring the defendants to appear and repeat the process would have been unreasonable or oppressive.

Therefore, the ruling of the trial court is affirmed.

AFFIRMED.

MARCUS and WATSON, JJ., dissent.

      The court answered the second inquiry, i. e., whether the taking of an exemplar itself is a violation of the Fourth Amendment, by saying the Fourth Amendment provides no protection for what a person knowingly exposes to the public, and physical characteristics of a person’s voice or handwriting are constantly exposed to the public. Dionisio, supra, 410 U.S. at 14, 93 S.Ct. at 771, 35 L.Ed.2d at 79, Mara, supra, 410 U.S. at 21, 93 S.Ct. at 776, 35 L.Ed.2d at 103.


text:
    STATE of Louisiana v. Tyronne DUNN.
    No. 80-K-1894.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    Lawrence M. Lehmann, Miriam G. Waltzer, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Sheila Myers, Linda Bizzaro, Asst. Dist. Attys., for defendants-respondents.
   MARCUS, Justice.

While on probation for another offense, defendant was arrested and charged by bill of information with attempted theft of property of a value of less than one hundred dollars in violation of La. R.S. 14:67; 14:27 (a misdemeanor). On November 29, 1979, defendant withdrew his former plea of not guilty and entered a plea of guilty as charged and was sentenced to serve sixty days in the parish jail with credit for time served. He served this sentence. Thereafter (June 18,1980), defendant filed a motion to set aside the guilty plea entered on November 29, 1979, on the grounds of ineffective assistance of counsel and that defendant was not advised that the entry of the guilty plea may have resulted in the revocation of his probation. After a hearing, the motions were denied by the trial court.

In defendant’s application to this court, it was asserted that the trial court erred in denying his motion to set aside the guilty plea “even though said plea was made without advising relator that he was thereby waiving his privilege against compulsory self-incrimination.” We granted the application to consider whether the requirements of Boykin v. Alabama, 395 U.S. 238 (1969), of an affirmative showing in the record at the time of a guilty plea by an accused of an express and knowing waiver of his constitutional privilege against self-incrimination, right to trial by jury, and right to confront his accusers applies in the case of a misdemeanor.

Upon review of the record, we consider that we improvidently granted the writ in this case for the following reasons.

At arraignment on November 13, 1979, defendant, accompanied by his attorney, entered a plea of not guilty. On November 29, 1979, defendant, again accompanied by his attorney, advised the court that he desired to withdraw his former plea of not guilty and to enter a plea of guilty. Thereafter, the following colloquy took place between the court and defendant:

BY THE COURT:
Mr. Dunn, your attorney, Mrs. Kogos, has presented to me a plea of guilty form. Has she explained the provisions in this plea of guilty form to you?
BY MR. DUNN:
Yes, Your Honor.
BY THE COURT:
Do you have any questions about this?
BY MR. DUNN:
No, Your Honor.
BY THE COURT:
Do you understand that by pleading guilty you are waiving your right to trial and waiving your right to subpoena witnesses to testify in your behalf?
BY MR. DUNN:
Yes.
BY THE COURT:
And also your right to cross examine any people that the State of Louisiana may put on?
BY MR. DUNN:
Yes, I do, Your Honor.
BY THE COURT:
And you are doing this of your own free will?
BY MR. DUNN:
Yes, I am.
BY THE COURT:
You are satisfied with the services of your attorney?
BY MR. DUNN:
Yes, I am.
BY THE COURT:
You are pleading guilty because you are, in fact, guilty?
BY MR. DUNN:
Yes, I am.
BY THE COURT:
These are your initials and signatures on the paper?
BY MR. DUNN:
Yes, they are.

(Emphasis added.) The plea of guilty form referred to by the court is entitled “Waiver of Constitutional Rights Plea of Guilty” and states in pertinent part:

I understand that by pleading guilty that I am waiving ... the privilege against self-incrimination or having to take the stand myself and testify, and to have preliminary pleadings filed and heard on my behalf.

(Emphasis added.) This part was initialed by defendant. The statement was also signed at the end by defendant, his attorney and the Commissioner, and dated November 29, 1979 (date the guilty plea was entered).

While the colloquy at the time the guilty plea was entered does not specifically refer to defendant’s waiver of his privilege against self-incrimination, the trial court did question defendant about his understanding of the “plea of guilty form” which contained an express waiver of defendant’s “privilege against self-incrimination or having to take the stand myself and having to testify.” This provision was initialed by defendant. Also, the statement was signed at the end by defendant, his attorney and the Commissioner. In our view, this constitutes a sufficient affirmative showing in the record of an express and knowing waiver of defendant’s privilege against self-incrimination to satisfy that requirement of Boykin. Since the record also supports the other requirements of Boykin, we are unable to say that the trial judge erred in denying defendant’s motion to withdraw his plea of guilty.

We consider the recent case of State v. Williams, 384 So.2d 779 (La.1980), to be clearly distinguishable from the instant case. Williams involved a plea of guilty to distribution of marijuana in which defendant was sentenced to six years imprisonment at hard labor and a fine of seventy-five hundred dollars. In Williams, the trial court simply questioned defendant as to whether he had discussed his rights with his counsel and understood them. We concluded that the record did not disclose a knowing and voluntary waiver of his constitutional rights. Such is not the case here.

Having concluded that the requirements of Boykin have been satisfied in the instant case, we need not reach the issue for which we granted the application, that is, do the requirements of Boykin apply in the case of a misdemeanor?

For the reasons assigned, the writ previously granted in this matter is recalled and vacated.

DENNIS, J., concurs but expresses concern and his opinion that this narrow exception to the requirement of an oral Boykin colloquy should be limited to the facts of this case.

      . “Felony” is any crime for which an offender may be sentenced to death or imprisonment at hard labor. La. R.S. 14:2(4); La. Code Crim.P. • art. 933(3). “Misdemeanor” is any crime other than a felony. La. R.S. 14:2(6); La. Code Crim.P. art. 933(4). La. R.S. 14:67 provides that, when the taking amounts to less than a value of one hundred dollars, the offender shall be imprisoned for not more than six months or may be fined for not more than five hundred dollars, or both. La. R.S. 14:27(D)(2) provides that, when the offense so attempted is theft and is not punishable as a felony, he shall be fined not more than two hundred dollars, or imprisoned for not more- than six months, or both. Hence, the crime of attempted theft of property of a value of less than one hundred dollars for which defendant was charged is a misdemeanor as it is not an offense punishable by imprisonment at hard labor.

      . These proceedings were before a Commissioner, Magistrate Section III of the Criminal District Court for the parish of Orleans.

      . The application to this court included a transcript of the colloquy that took place at the time the guilty plea was entered but not the plea of guilty form contained in the record lodged with this court.