author:
WATSON, Justice.
     DIXON, Chief Justice DENNIS, Justice, CALOGERO, Justice, BLANCHE, Justice.
     WATSON, Justice,

text:
    CITY OF NEW ORLEANS v. NEW ORLEANS CANAL, INC., et al.
    No. 66860.
    Supreme Court of Louisiana.
    Oct. 16, 1981.
    On Rehearing March 1, 1982.
    Rehearing Denied April 30, 1982.
    William J. Wegmann, William J. Weg-mann, Jr., of Law Office of William J. Wegmann, New Orleans, for defendants-applicants, A.N. Yiannopoulos, Baton Rouge, of counsel.
    Salvador Anzelmo, Acting City Atty., Jack P. Panno, Asst. City Atty., John F. Fox, Jr., New Orleans, Amicus Curiae, for plaintiff-respondent.
   WATSON, Justice.

This is a possessory action in which plaintiff, the City of New Orleans, contends that defendants have disturbed its possession of certain real property. LSA-C.C. art. 3455. A trial court judgment in favor of the City of New Orleans was amended and affirmed. City of New Orleans v. New Orleans Canal, 378 So.2d 995 (La.App. 4 Cir. 1979). A writ was granted to review the judgment of the Court of Appeal, 381 So.2d 1221 (La., 1980).

FACTS

The strip of property in dispute is forty feet wide and approximately 7,200 feet long. It is bounded on the south by Polk Avenue and on the north by Robert E. Lee Boulevard. On the east is the right-of-way of West End Boulevard. On the west there is a sixty foot wide strip of land which belongs to New Orleans Canal, Inc., a defendant. There is no line of demarcation between the forty foot and sixty foot strips. Between the sixty foot strip and Pontchartrain Boulevard lies a tract of land two hundred and forty feet wide which belongs to the State of Louisiana. The area between West End and Pontchartrain Boulevards is vacant. The City has mowed the grass and picked up the trash, thereby maintaining it as a neutral zone. The City has also installed cross streets, sewerage and utility lines between the two boulevards. The Court of Appeal concluded that the City’s maintenance of the entire area established possession of the lesser included forty foot strip.

ISSUE

The two-point issue is whether the City: (1) intended to possess the property as owner; and (2) exercised corporeal possession. LSA-C.C. art. 3436.

CONCLUSION

A municipality has the right to expropriate private property for a public purpose after payment of just compensation to the owner. Art. 1, Section 4, Louisiana Constitution of 1974. However, possession is frequently a matter of fact rather than right. LSA-C.C. art. 3450. A private corporation may acquire possession through the agency of those administering its affairs. LSA-C.C. art. 3440. Similarly, a municipality can be a bad faith possessor of property without having any color of title. LSA-C.C. art. 3452. The question of ownership is not at issue in a possessory action. LSA-C.C. art. 3455, supra. Since ownership is not being decided, defendants’ property is not being “taken”. There is no violation of the constitutional protections extended to private property.

Defendants contend that this suit, filed in 1964, is governed by the St. Julien doctrine. St. Julien v. Morgan Louisiana & Texas Railroad Co., 35 La.Ann. 924 (1883) “appears to be petitory” in nature. 35 La.Ann. 924. It held that a corporation with the power of expropriation can acquire a servitude by unopposed use and occupancy. St. Julien was overruled prospectively in Lake, Inc. v. Louisiana Power & Light Company, 330 So.2d 914 (La., 1976). The St. Julien doctrine is inapplicable here where the only issue is possession. When the question of ownership is litigated, the extent of any rights acquired by the City under the St. Julien doctrine can be considered.

Defendants also rely on LSA-C.C. arts. 3489 and 3490. Those articles concern the possession necessary for ten years’ acquisitive prescription to commence. That possession is tantamount to good faith possession. It requires that the possessor hold the thing “in fact and in right as owner.” However, even a bad faith possessor, one who has no right or title to the thing, can maintain a possessory action. LSA-C.C. art. 3454.

The type of possession needed to maintain a possessory action is “factual authority over a thing with the intent to own it.” 2 La.Civ.Law Treat. (Yiannopoulas) 2d Edition 211 at page 564. The showing required to denote an owner’s control differs according to the nature of the property. Hill v. Richey, 221 La. 402, 59 So.2d 434 (La., 1952). The question is one of fact in each case. South Louisiana Land Co. v. Riggs Cypress Co., 119 La. 193, 43 So. 1003 (La., 1907). A fenced enclosure is not sacramental as long as the limits of possession are clearly delineated. Hill v. Richey, supra. Cutting grass on a right-of-way shows possession even though a portion of the enclosing fence has been removed. Texas & Pac. Ry. Co. v. Burch, 197 La. 160, 1 So.2d 64 (La., 1941).

The question is not whether the City owns the disputed strip of land, but whether it has exercised an owner’s dominion over it. Unquestionably, it has. Construction and repair of streets and utilities are acts of possession. No one opposed these unequivocal and continuous activities by the City. Compare Reymond v. City of Baton Rouge, 145 La. 162, 82 So. 75 (La., 1919). The City has consistently treated the property as its own and has improved it without permission from any other party. In improving the property, the City has manifested the necessary intention to possess as owner. The City’s acts of possession were apparent to all. They took place in an extremely public and visible location. Compare Carrere v. City of New Orleans, 162 La. 981, 111 So.2d 393 (La., 1926). To a passerby, the entire area has borne the aspect of a public square or neutral ground. The City has maintained the expanse in a manner appropriate to its nature by mowing the grass and picking up the trash. The tract bounded by West End, Pontchartrain and Robert E. Lee Boulevards and Polk Avenue has been in the possession of the City of New Orleans. The possession of the larger tract necessarily included possession of the lesser strip in dispute.

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

AFFIRMED.

DIXON, C. J., and DENNIS, J., dissent with reasons.

CALOGERO, J., dissents and assigns reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

The majority opinion concludes on a confusing note: “The tract bounded by West End, Pontchartrain and Robert E. Lee Boulevards and Polk Avenue has been in the possession of the City of New Orleans. The possession of the larger tract necessarily included possession of the lesser strip in dispute.”

There was no effort by the City to prove, and no proof adduced, that it possessed the “larger tract” as owner. The only act of possession by the City in the year preceding this suit was apparently the cutting of grass. The City made no distinction among the three tracts involved when it cut the grass. It mowed all three tracts. For mowing the largest tract (the 240 foot tract which is said to be owned by the state) the record indicates that the City probably billed the state for the mowing. Therefore, the mowing of the greater part of this tract of land was never intended as an act of possession. The City mowed, but sought payment from the owner (the state) for the mowing. This error in the majority’s opinion might not be fatal to its conclusion, but it is wrong to find that “the possession of the larger tract necessarily included possession of the lesser strip in dispute.”

The fundamental error in the majority opinion (which requires a different conclusion) is that the record does not show acts of possession sufficient to support a posses-sory action.

“To enable one to plead the prescription treated of in this paragraph, it is necessary that the possession be distinguished by the following incidents:
“1. That the possessor shall have held the thing in fact and in right, as owner; when, however, it is only necessary to complete a possession already begun, the civil possession shall suffice, provided it has been preceded by the corporal possession.
“2. That the possession shall have been continuous and uninterrupted, peaceable, public and unequivocal; a clandestine possession would give no right to prescribe; but he who possesses by virtue of a title can not be considered as a clandestine possessor, for his title leads to the supposition that the possession commenced in good faith, and that is sufficient to enable him to plead prescription.” C.C. 3487.
“The possession on which this prescription is founded must be continuous and uninterrupted during all the time; it must be public and unequivocal, and under the title of owner.” C.C. 3500.

The land involved here is flat and vacant, and, except for being unoccupied, identical with that across West End Boulevard and Pontchartrain Boulevard, which is completely occupied with buildings.

Acts of possession that are necessary vary with the nature and situation of the thing possessed. Ellis v. Prevost, 13 La. 230 (1839). Cases involving swamp and timber land have held the cutting of trees and construction of roads to be sufficient. See South Louisiana Land Co. v. Riggs Cypress Co., 119 La. 193, 43 So. 1003 (1907) and Long v. Chailan, 196 La. 380, 199 So. 222 (1940). Execution of an oil and gas lease, subsequent drilling and payment to the state conservation commission for care of the marshland were found to be acts of possession in Chamberlain v. Abadie, 48 La.Ann. 587, 19 So. 574 (1896). In Liner v. Louisiana Land and Exploration Co., 319 So.2d 766 (La.1975), plaintiff had trapped and burned the marsh yearly, marked boundaries with stakes, raised cattle and actively prevented dispossession by the defendant. The court found “external and public signs” of possession. The importance of establishing boundaries was noted by the court in Boagni v. Pacific Imp. Co., 111 La. 1063, 36 So. 129 (1904), Leader Realty Co. v. Taylor, 147 La. 256, 84 So. 648 (1920) and Labarre v. Rateau, 210 La. 34, 26 So.2d 279 (1946).

Large tracts of farmland have been the subject of possessory actions. Maintenance of enclosures and the exercise of grazing privileges over the land were sufficient acts of possession in Norton v. Addie, 337 So.2d 432 (La.1976). In Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952), upon which the majority relies, the placement of no trespassing signs, fences and marks made by surveyors constituted possession by plaintiff. Land was cleared, houses were built and fences were constructed in Giddens v. Madison Mobley, 37 La.Ann. 417 (1885).

The majority relies on Texas & Pacific Ry. Co. v. Burch, 197 La. 160, 1 So.2d 64 (1941) to find cutting grass an act of possession sufficient to maintain a possessory action. Burch, however, involved a 200 foot right of way that had a railroad depot, water tank, stock pen, other railroad structures and fencing located upon it. It was on that basis the Burch court found no intent to abandon the property.

Barker v. City of New Orleans, 159 La. 325, 105 So. 359 (1925) is analagous to the case at bar. A canal was filled, and the land created became the subject of a posses-sory action. The city had alleged possession for thirty years prior to the suit, and used the site for dumping trash. Plaintiff claimed he had possession for twelve years prior to the suit. Plaintiff’s acts of possession included cutting weeds, payment of paving charges, posting of for sale signs and foundation testing. The court held these acts had occurred greater than one year before the suit was filed, and were not sufficient to sustain a possessory action. The court stressed that acts of possession must be demonstrated in the year preceding initiation of the suit. Thus, in Barker the only act of possession within the year before the suit was the periodic cutting of weeds by the plaintiff. It was held that weed cutting was insufficient to sustain the action in Barker, and the same is true in this case.

A representative of the Sewerage and Water Board testified that eighteen catch basins and four water mains were built by the Board within the contested area. None of the mains were constructed within the year immediately preceding the filing of this suit on July 14, 1964. The main at Filmore Street was installed in July of 1961. Another main was built in May of 1962 at Conrad and West End Boulevard. The main at Lane was installed in March of 1963, and the one at Harrison was built in August of 1955.

Four cross-over streets were constructed by the City in 1955 traversing the area between Pontchartrain and West End Boulevards. Sidewalks were also built across the neutral ground. The Department of Streets maintains the boundary streets and the cross-overs. Once again, the construction took place well before the time period in question, and cannot be said to evidence an intent to possess the entire area as owner.

The City introduced evidence of the presence of a civil defense facility apparently built by the City on the neutral ground many- years ago. The fence surrounding the building touches the line between the 40 feet and 300 feet areas. The fence does not encroach on the 40 foot strip. The map introduced to show the location of the structure did not disclose whether the structure protruded into the 40 foot strip underneath the ground, and no definitive testimony was offered on this point. An access road leading to and away from the facility crosses the entire median. Gates at either side of the roadway prevent passage by the public.

The only positive act of possession of the 40 foot strip during the year preceding institution of suit was the periodic mowing by the City of the entire neutral ground, including the contested area. No shrubbery was planted, recreation facilities established or park benches installed to indicate possession by the City.

The situation at hand involves the exercise of governmental functions by a city. Greater acts of possession than installation of utilities and streets and periodic mowing should be necessary for the City to claim possession of this entire 40 foot strip. The City has failed to establish the extent of its possession. The 40 foot strip is not distinguishable from the rest of the land.

The City’s “acts of possession” were not sufficient to dispossess the defendants in this case. There were no “external and public signs” to indicate the City had an intent to possess the 40 foot strip as owner, nor that the City had corporeal possession of the strip as required by C.C. 3436.

There ought to be judgment for defendants.

DENNIS, Justice,

dissenting.

I respectfully dissent for the reasons assigned by Chief Justice Dixon.

CALOGERO, Justice,

dissenting.

For the City to prevail in this possessory action, it must show that at the time of the disturbance it had possession of the strip of land, that the possession had been uninterrupted for more than one year prior to the disturbance and that its possession was in the character as owner. La.C.C. art. 3455; Liner v. Louisiana Land and Exploration Co., 319 So.2d 766 (La.1975). The evidence in this record cannot reasonably be construed as exhibiting that type of possession. The railroad in Texas & Pac. Ry. Co. v. Burch, 197 La. 160, 1 So.2d 64 (1941), cited in the majority opinion for the proposition that cutting grass on the right of way shows sufficient possession, had maintained a fence marking the limits of its possession for many years before a portion of it was removed to allow highway construction. The Court observed that, in addition to continuing to cut the grass after that portion of the fence was removed, the railroad also had its depot and stock pen on that side of the track.

In the instant case, the acts upon which the City relies to show its possession are (1) the cutting of streets across the strip at four intersections, (2) the installing of underground utility lines — some with visible gratings — at points on the strip and (3) the mowing of the grass on the strip. The street construction is as consistent with the exercise of a servitude in favor of the City as with possession as owner, if not more so. The other acts fall short of establishing possession as owner. The City exercised the same type of acts on the involved strip of land as on the adjoining one owned by the State and later in part by these same defendants. The City surely did not possess the State’s adjoining land as owner.

Additionally, I am disturbed by the blase treatment given by the majority to a serious constitutional issue. Relator argues that the City may not constitutionally take possession of private property without prior and just compensation. La.Const. art. 1, § 4. The majority dismisses this argument with the brief statement that “since ownership is not being decided, defendants’ property is not being ‘taken’.” I venture to predict that the ownership of this land is being effectively decided in this opinion since the character of possession (as owner) in this possessory action is the same as the character of possession in the acquisitive prescription action which will likely succeed this litigation. La.C.C. art. 3500

For the foregoing reasons, I respectfully dissent.

ON REHEARING

BLANCHE, Justice.

We granted this rehearing to reconsider whether the degree and extent of possession exercised by the plaintiff municipality was sufficient to maintain a possessory action.

Possession is defined in our Civil Code as the “detention or enjoyment of a thing which we hold or exercise by ourselves, or by another who keeps or exercises it in our name.” C.C. art. 3426. Natural possession occurs when an individual detains a thing corporeally, without regard to the existence or validity of title. C.C. arts. 3428, 3430. To acquire possession of the tract of land in question the City of New Orleans was required to show its corporeal detention of the property with the intent to possess as owner. C.C. art. 3436.

What constitutes possession depends largely on the natúre of the property. As noted by this Court in Liner v. Louisiana Land and Exploration Co., 319 So.2d 766 (La.1975):

“The concept of possession is neither simple nor precise. (See Riseman, Elementary Considerations in the Commencement of Prescription on Immovable Property, 12 Tul.L.Rev. 608 (1938). The quality of possession required in a particular case depends not only on its classifications as good faith or bad faith possession, but also on the type of land in dispute.”

Further, where an individual claims by corporeal detention alone and without title, he must show an adverse possession within enclosures. Norton v. Addie, 337 So.2d 432 (La.1976). See also 2 Civil Law Treatise (2 Ed. Sec. 212). “Enclosed” does not necessarily mean “fenced in”, but does require “that the land actually, physically, and corporeally possessed by one as owner must be established with certainty, where by natural or by artificial marks; that is, that they must be sufficient to give definite notice to the public and all the world of the character and extent of the possession, to identify fully the property possessed, and to fix with certainty the boundaries or limits thereof.” Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952).

The corporeal possession required to institute a possessory action corresponds with the possession necessary for acquisitive prescription of thirty years. Norton v. Addie, supra; Liner v. Louisiana Land & Exploration Co., supra. Consequently, the possession must be open, continuous, public, unequivocal and uninterrupted with the intent to possess as owner. Succession of Kemp v. Robertson, 316 So.2d 919 (La.App., 1975), writ den. 320 So.2d 906. The intent to possess as owner cannot be inferred when the circumstances are insufficient to give reasonable notice to the public and the owner of the property that the possessor is unequivocally possessing as owner. Woodell v. Roberts, 329 So.2d 858 (La.App.1976), writ ref. 333 So.2d 248.

The City contends that by its acts of urban maintenance, it exercised possession in the only manner appropriate for this type of property. As a result, its intent to possess as owner was sufficiently manifested to the property owner. We agree that these acts, under the appropriate circumstances, could constitute corporeal detention with the intent to possess as owner. The regular upkeep and maintenance of another’s property would normally alert the property owner of the possessor s claim and be sufficient to support a possessory action. We do not dispute that a municipality may possess a private individual’s property, as long as the acts relied upon are of sufficient magnitude to warn the property owner of an adverse claim. Nevertheless, the conduct relied upon should not be considered in the abstract. Due weight ought to be given to the nature of the property, its location and the party asserting possession. Contrary to our original opinion we now hold that, when the acts exhibited by the city are considered in light of the above factors, it is clear as to the 40 foot grassy strip here in dispute that the city failed to establish the extent of its possession and that neither the public nor the property owner were sufficiently apprised that the city’s “possession” was adverse or hostile.

The strip of land involved in the present dispute is part of a flat, open, unoccupied piece of urban property. The entire tract containing the contested strip of property has the appearance of an unusually large “neutral ground.” The following diagram indicates the disputed property’s location within the neutral area.

It is readily apparent that the neutral area is enclosed by four main thoroughfares. Be this as it may, it is undisputed that the tract of land in question is not enclosed on two sides along the entirety of its length of 7,200 feet. On one side it is adjacent to another tract of grassy land, 60 feet wide, which belongs to defendant and is not involved in litigation. Next to this 60 foot strip is the 240 foot wide piece of property owned by the state. Adjacent to the other side of the disputed tract is a 17 foot strip of grassy land that forms part of the West End Boulevard right of way. There are no boundary markers whatsoever to indicate the limits between defendant’s land and the land involved in litigation or between the West End Boulevard right of way and the land involved in litigation. Thus, because of its location and the lack of boundary markers, the contested tract is indistinguishable from any other property located in the neutral area. The city does not claim that it possesses the property adjoining either side of the 40 foot wide strip. Further, the city, which billed the state for its services over the majority of the neutral ground area, surely did not assert its possession, as owner, over the state-owned tract of land.

Consequently, the City did not show possession within enclosures and failed to establish the extent of its claim. As noted earlier, and correctly stated by the court of appeal:

“The concept of enclosures is pertinent to the determination of extent of possession. When a possessor has a title, his exercise of possession over a part of the property constitutes the exercise of constructive possession of the whole; however, when a possessor does not have a title, his claim of possession is limited in extent to that property shown by enclosures (artificial or natural boundaries) and his possession must be proved ‘inch by inch’, so that the possessor must establish actual, physical and corporeal possession over the entire amount of land claimed in the possessory action. Stated otherwise, the possessor without title is entitled to be maintained in possession only to the extent of the boundaries within which he proved actual, physical and corporeal possession. Prevost’s Heirs v. Johnson, 9 Mart. (O.S.) 123 (La.1820); Crichton v. Giddens [148 La. 970] 88 So. 236 (1921); Risemore, The Possessory Action in Louisiana, 20 Tul.L.Rev. 524, 437 (1946); Yiannopoulos, above, Sec. 138, pp. 110-111 (1978 Supp.).”

On original hearing, this Court concluded that:

“The tract bounded by West End, Pontchartrain and Robert E. Lee Boulevards and Polk Avenue has been in the possession of the City of New Orleans. The possession of the larger tract necessarily included possession of the lesser strip in dispute.”

This statement was meant to stand for the proposition that possession of an enclosed tract (“the larger tract”) includes all of the land within that tract (“the lesser strip”). Thus, had the City been able to prove it openly, continuously and unequivocally possessed all of the land comprising the neutral ground, which was enclosed, its possession would have included defendant’s property, as it was part of the enclosed area. Because the city does not claim possession of the strips of land adjoining the contested property, nor possession of the state-owned property, it has failed to establish possession of the “larger tract”, which “necessarily included possession of the lesser strip in dispute.”

Further, we are of the opinion that the performance of the governmental functions relied upon by the city were insufficient to give notice that it “possessed” the 40 foot strip as owner. These customary chores of maintenance and upkeep relied upon by the city to establish possession were not limited to the strip of land in question, but were performed indiscriminately and without distinction over the entire area of the neutral ground, which was comprised of several other tracts of land, none of which is claimed by the city. Further, for mowing the larger part of the neutral ground, which is owned by the state, the record indicates that the city sought payment from the state. Thus, with respect to the majority of the neutral area, the city’s possession was not as owner but, rather, precarious. Though the city’s acts of maintenance and upkeep took place in a highly visible location, they were clearly inadequate to give warning that it claimed only the tract in dispute as owner.

The only possible activity of sufficient magnitude to apprise the property owner of a possible assertion of possession was the construction and maintenance of the four crossroads traversing the area. However, it is our belief that these roadways crossing the 40 feet wide tract at distant intervals were insufficient to support possession of the entire strip of property, which is over one mile long. At best, these roadways created an interest in the nature of a servitude of passage. See Conrad v. Riene, 240 So.2d 915 (La.App.1970); 1 Civil Law Treatise, supra, Sec. 33.

Accordingly, the judgment in favor of the City of New Orleans is reversed, and judgment is rendered in favor of defendant, New Orleans Canal, Inc.

MARCUS, J., dissents, adhering to the reasons assigned on original hearing.

WATSON, J., dissents and assigns reasons.

WATSON, Justice,

dissenting.

I dissent for the reasons assigned in the original opinion, although the extremely pervasive argument presented on rehearing has caused me to have serious reservations about some of the initial conclusions.

In this very difficult case, the trial court was not clearly wrong. Additionally, there is the significant fact that the City billed the State for its services but not the New Orleans Canal company. Also, the record does not reflect that any paving liens or other taxes were assessed against the Canal company.

The evidence tends to show that the City of New Orleans possessed the tract in dispute as owner, as the trial judge found.

I respectfully dissent.

       Honorable Paul B. Landry, Jr., participated in this decision as Associate Justice Ad Hoc in place of Lemmon, J., recused.

      . The defendants are New Orleans Canal, Inc., Southdown, Inc., substituted as a defendant in place of Canal Assets, Inc., both Louisiana corporations domiciled and having their principal place of business in the City of New Orleans, Louisiana, Julius J. Weigel, Horace LeCompte, Arthur L. Gulledge, Elizabeth U. Gulledge, Betty S., wife of and August P. LeBourgeois, all residents of and domiciled in the Parish of Jefferson, Louisiana, Robert Louis Carruth, and Charles I. Kenny, Jr., each a resident of and domiciled in the Parish of Orleans, Louisiana.

      . LSA-C.C. art 3455 provides:
      “The action which a possessor for one year has against a person disturbing his possession, to be maintained in it or restored to it, as is said in the preceding article, shall be decided before pronouncing on the question of ownership, and the real owner shall not be allowed to repel it by endeavoring to prove his right.”

      . LSA-C.C. art. 3436 provides:
      “To be able to acquire possession of property, two distinct things are requisite:
      “1. The intention of possessing as owner;
      “2. The corporeal possession of the thing.”

      . LSA-C.C. art. 3450 provides:
      “Although possession results frequently from a fact, and not from right, it nevertheless confers on the possessor certain rights with regard to the thing possessed, some of which are peculiar to the possessor in good faith, and the others are common to all possessors.”

      . LSA-C.C. art. 3440 provides:
      “For the same reason corporations may, acquire the possession of a thing, through the agency of those who administer their affairs.”

      . LSA-C.Cr.P. art. 3452 provides:
      “The possessor in bad faith is he who possesses as master, but who assumes this quality, when he well knows that he has no title to the thing, or that his title is vicious and defective.”

      . LSA-C.C. art. 3487 (emphasis added).

      . LSA-C.C. art. 3454 provides:
      “Rights, which are common to all possessors in good or bad faith, are that:
      “1. They are considered provisionally as owners of the thing which they possess, so long as it is not reclaimed by the true owner or person entitled to reclaim it, and, even after such reclamation, until the right of the person making it is established.
      “2. Every person who has possessed an estate for a year, or enjoys peaceably and without interruption a real right, and is disturbed in it, has an action against the disturber, either to be maintained in his possession, or to be restored to it, in case of eviction, whether by force or otherwise.
      “3. Such a possessor may, by prescription, acquire the ownership of the thing which he thus possesses, after a certain time, which is established by law according as he has possessed in good or bad faith.
      “4. Such a possessor has the right, in case of eviction from the thing reclaimed, to retain it until he is reimbursed the expenses he is entitled to claim.”

      . W.R. Irby Professor of Law, Tulane University.

      . Within the 40 foot strip of land in controversy, eighteen catch basins have been built by the Sewerage and Water Board within the contested area. The record is not clear whether these catch basins are connected with one another by subterranean drains, or whether each one carries water to a drainage system in the adjacent subdivisions. Some water mains have also been constructed at some points across the contested area. Of course, the water mains are underground, and completely invisible, classically “clandestine.” The catch basins have cast iron covers two feet in diameter, visible only at ground level on relatively close examination, near or at street intersections. None of the drains appear to have been constructed within the year immediately preceding the filing of this suit in 1964.
      The drains and catch basins and water mains, invisible except for catch basins which can be seen only when the viewer is close to them, cannot be considered such a construction as would give notice to anyone that the City claims ownership of this tract of land. C.C. 3501 provides:
      “The possession necessary for this species of prescription, when it has commenced by the corporal possession of the thing, may, if it has not, been interrupted, be preserved by external and public signs, announcing the possessor’s intention to preserve the possession of the thing, as the keeping up of roads and levees, the payment of taxes, and other similar acts.”

      . Liner v. Louisiana Land and Exploration Co., 319 So.2d 766, 772 (La.1975).

       Honorable Paul B. Landry, Jr. participated in this decision as Associate Justice Ad Hoc in place of Lemmon, J., recused.

      . C.C. Art. 3441 provides that “... Those who possess, not for themselves, but in the name of another, as farmers, depositaries and others who acknowledge an owner, can not acquire the legal possession, because, at the commencement of their possession, they had not the intention of possession for themselves but for another.”


source: Caselaw Access Project

author: JASPER E. JONES, Judge. DENNIS, J.,

license: Public Domain

text:
    STATE of Louisiana v. Ronald W. DROTT.
    No. 81-KA-1484.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    Rehearing Denied April 30, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Joseph N. Lot-wick, Asst. Dist. Attys., for plaintiff-appel-lee.
    W. Jeff Hollingsworth, and David R. Buckley, Baton Rouge, for defendant-appellant.
   JASPER E. JONES, Judge.

Appellant, Ronald W. Drott, was charged with theft of $350.00 in violation of LSA-R.S. 14:67 and pled not guilty. Following a denial by the trial judge of defendant’s motion to suppress money seized at the time of his arrest and an inculpatory statement made at the same time, the defendant changed his plea to guilty, reserving his right to appeal the.denial of his motion to suppress. The defendant was sentenced to eighteen months in the East Baton Rouge Parish prison.

On appeal Drott relies upon one assignment of error for the reversal of his conviction and sentence. He contends that the trial judge erred when he denied his motion to suppress the money seized at the time of his arrest from the truck he was driving.

THE FACTS

Hernandez Ice Company was protected by a burglary alarm system serviced by Alford Security System. A key to Hernandez’s building was supplied to Alford who kept it on a board in the dispatcher’s office. When the alarm at Hernandez was activated, the dispatcher would give the key to one of the Alford security guards who would proceed to Hernandez’ where he would meet a Baton Rouge police officer who had also been sent to Hernandez in response to the activated alarm, and the two of them would proceed to investigate the cause for the alarm’s activation.

On the night of November 29, 1979, the Hernandez alarm sounded and was investigated by defendant Drott, a security officer of Alford’s, and a Baton Rouge police officer, but they found no evidence of any forced entry into the Hernandez building, nor any indication that anything had been taken from the building. On the following morning the manager of Hernandez discovered that some of Hernandez’s money had been removed from a file cabinet and he reported the incident to Corporal Starkey of the Baton Rouge Police Department.

On the night of January 9, 1980, the Hernandez alarm again activated and defendant Drott was again sent to Hernandez’ where he and a Baton Rouge police officer investigated the cause for the alarm and they again found no evidence of a forced entry into Hernandez’ building, nor any indication that any of Hernandez’s property had been taken. The following day the manager of Hernandez discovered that some of the company’s money had been removed from the file cabinet and reported the incident to Corporal Starkey and expressed the opinion that the theft of Hernandez’ money following the two activations of the burglary alarms led him to believe that the money was being taken by the Alford guard and/or the police officer who had entered the Hernandez building to investigate the cause of the alarm.

Because a different police officer had participated in each investigation of the activated alarm and Drott had participated in both of the burglary alarm calls, Drott became the primary suspect of the two thefts.

Corporal Starkey in an effort to determine the party responsible for the thefts placed the Hernandez building under sur-veilance on the night of February 12 and early morning hours of February 13, 1980. He sent detectives Tommy Gipson and Eddie Thomas in an unmarked car to the scene of the Hernandez building where they parked at a location where they could observe the building. Corporal Starkey directed Police Officer McDaniel to patrol in a marked police car equipped with flashing lights in the area so that he could respond to the Hernandez alarm which was to be activated by the detectives on stake out.

In further preparation for the planned surveilance the manager of Hernandez prepared a list of the serial numbers of the money belonging to the company which was left in the file cabinet and supplied a copy of the list to detective Gipson.

At about 1:00 a. m. the officers on stake out activated the alarm and Officer McDaniel received notice of the alarm and went to Hernandez where he met Alford’s guard, Drott, who had secured the key from the dispatcher and the two of them entered the building and investigated the cause for the alarm, and of course, found no forced entry or other reason for the alarm. After they completed the investigation, Officer McDaniel left Hernandez, but patroled in the general area. Drott left Hernandez immediately after McDaniel’s departure. The two detectives on stake out continued their observance of the Hernandez building, and about 2:05 a. m. observed Drott return alone and enter the Hernandez building where he remained about fifteen minutes. The officers believed his entry to have been unauthorized because they had been listening to their police radio and there was no indication that Drott had been dispatched to Hernandez in response to another alarm. When Drott left Hernandez, Detective Gip-son and his partner believed that Drott had committed a theft and immediately followed him. They contacted McDaniel on the radio and instructed him to stop Drott, who was driving an Alford’s pickup truck. McDaniel stopped the Drott vehicle and he, along with the two officers who were following Drott in the unmarked car, had Drott get out of the truck and took his revolver from him. Within thirty to sixty seconds following the stopping of the Drott vehicle Detective Gipson looked into the cab of the truck through an open door on the driver’s side and observed a $5 bill sticking out of a crack between the back and bottom part of the seat immediately behind the steering wheel. He pulled the $5 bill from the seat and two or three $20 bills came out of the crack between the seat along with the $5. Gipson then made a further search behind the seat and found several hundred dollars. All of the money had serial numbers which matched the list compiled by the manager of Hernandez from the company money which was left in the file cabinet.

THE ISSUE

Drott contends that the money seized from the truck should have been suppressed as the product of an unconstitutional search. The issue is: was the search unconstitutional? We conclude that it was not and affirm.

THE LAW

The rule that a search conducted without a warrant issued upon probable cause is per se unreasonable is subject to only a few specifically established exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). One of those exceptions is the search incident to lawful arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The search incident to arrest is limited to the area within the arrestee’s immediate control. State v. Bradford, 298 So.2d 781 (La.1974). It is permissible to search the interior of an automobile after arresting its occupants when they remain in proximity to the vehicle. State v. Nicholas, 397 So.2d 1308 (La.1981); State v. Bradford, supra; State v. King, 322 So.2d 205 (La.1975); State v. Wilkens, 364 So.2d 934 (La.1978).

In the recent U. S. Supreme Court case of New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the court clearly set forth the permissible limits of the warrantless search of an automobile following the arrest of one of its occupants:

“Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arres-tee, so also will containers in it be within his reach.” Id. at 2864.

If the arrest here made was valid the denial of the motion to suppress the money seized from the seat of the truck was correct. A warrantless arrest is valid when based on probable cause. LSA-C. Cr.P. art. 213; State v. Ranker, 343 So.2d 189 (La.1977).

Probable cause exists when the facts and circumstances within the officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed, or is committing, an offense. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Ranker, supra. It takes more and better evidence to provide probable cause when the police do not know a crime has been committed. State v. Johnson, 363 So.2d 684 (La.1978). Probable cause is to be judged by the probabilities and practical considerations of everyday life on which average men, particularly average police officers, can be expected to act. State v. Smith, 377 So.2d 1220 (La.1979).

In this case the arrest occurred at the time McDaniel stopped Drott. An arrest occurs when the circumstances indicate an intent, on the part of the officers, to effect an extended restraint on the subject’s liberty. State v. Tomasette, 381 So.2d 420 (La.1980); State v. Wichers, 392 So.2d 419 (La.1980); State v. Bell, 395 So.2d 805 (La.1981). Gipson testified that Drott was in custody and would not have been allowed to leave from the time he was stopped by McDaniel on the instructions of himself and Thomas.

The question in this case then becomes— was there probable cause to arrest Drott at the time he was pulled over. As did the district judge, we conclude there was probable cause.

Though Gipson and Thomas did not know that a theft had been committed when they had Drott stopped, they had considerable information indicating that a crime had been committed. They knew that there had been a series of thefts from the Hernandez Company. They knew of the pattern that ran through those thefts. They knew that Drott’s return to the premises on the morning of February 13 fit the pattern of the thefts and that he was not returning in response to the alarm and that he was not accompanied by a Baton Rouge police officer which was the normal procedure when an Alford Guard entered the building in response to an alarm. For these reasons the officers knew Drott’s entry into Hernandez was apparently unauthorized.

In light of what Gipson and Thomas knew and had seen, they, as men of average caution, had ample grounds to justify a belief that Drott had committed a theft. They had probable cause at the time they had McDaniel stop Drott. The search of the truck was a valid search incident to lawful arrest.

The defendant’s conviction and sentence is AFFIRMED.

DIXON, C. J., concurs in denial.

CALOGERO, J., would grant a rehearing.

DENNIS, J.,

would grant a rehearing to consider whether Art. 1, § 5 of the Louisiana Constitution of 1974 permits a warrant-less search of a vehicle under the circumstances of this case. In State v. Hernandez, 410 So.2d 1381 (La.1981), we noted that the rule of New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) has been criticized by jurists and scholars and, more importantly, it is not a proper rule of police conduct under our state constitution in view of its explicitly broader guarantees of individual liberty and privacy.

       The Honorables Pike Hall, Jr., Charles A. Marvin, Jr. and Jasper E. Jones, Judges of the Court of Appeal, Second Circuit, participated in this decision as Associate Justices ad hoc, joined by Associate Justices John A. Dixon, Jr., Chief, Walter F. Marcus, Jr., Fred A. Blanche, Jr. and Harry T. Lemmon.

      . As the officers removed Drott’s revolver, Officer McDaniel conducted a pat down search of Drott which revealed a cigarette package in which McDaniel found a marijuana cigarette. McDaniel informed Drott he was under arrest, but as is hereinafter explained in this opinion, Drott was already under arrest before he was so informed by McDaniel following the discovery of the marijuana cigarette.

      . The trial judge’s conclusions as to probable cause are entitled to great weight. State v. Nicholas, 397 So.2d 1308 (La.1981).


author:
DENNIS, Justice.
     MARCUS, Justice

text:
    STATE of Louisiana v. Alfred SCOTT.
    No. 81-KA-2036.
    Supreme Court of Louisiana.
    March 1, 1982.
    Rehearing Denied March 19, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Clifford R. Strider, IV, and Louise Korns, Asst. Dist. Attys., for plaintiff-appellee.
    Paul A. Tabary, III, of Sapir & Belknap, New Orleans, for defendant-appellant.
   DENNIS, Justice.

In this street encounter case, defendant Alfred Scott, a black New Orleans sanitation department employee, contends that his conviction of possessing a firearm as a felon, La.R.S. 14:95.1, and his sentence of three years at hard labor were based on an unconstitutional search and seizure. After his unsuccessful motion to suppress the weapon, which was discovered on his person by a policeman during a street encounter, defendant reserved his right to appeal from the trial court’s ruling and pleaded guilty.

On March 8, 1981 at about 5:00 p. m., Officer Marinovic parked his marked patrol car near Iberville and Royal Streets in the French Quarter. He observed Scott walking back and forth on the sidewalk for “maybe ten, maybe fifteen minutes.” Mar-inovic, who was in uniform, moved his patrol car down the street nearer the defendant, got out, and approached Scott. Before the officer said anything, Scott told him he worked for the city sanitation department, pointing to an orange t-shirt around his neck, and said he was waiting for someone. According to the officer, Scott moved around quite a bit and spoke rapidly. When the officer asked him for his identification, Scott first reached toward his right pocket but then pulled his identification from his left pocket. After inspecting Scott’s driver’s license, the officer frisked him, discovered a .25 revolver in his right back pocket, and arrested him.

During his testimony at the motion to suppress hearing, officer Marinovic testified that he suspected Scott had committed a crime or was planning one because he walked in “a suspicious manner,” “seemed to be very nervous,” “talk[ed] very fast,” “moved around quite a bit,” and volunteered an explanation of his presence before he was asked for it. Also, the police officer testified that numerous street crimes had been committed in the section including Iberville, Boyal and Bourbon Streets. He acknowledged, however, that no crime had been reported that day and that pedestrian traffic was heavy at the scene of the stop and frisk. He conceded, also, that before he frisked Scott he was aware that his orange t-shirt was the same color as the kind worn by city sanitation workers.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) the United States Supreme Court held that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. The question raised by Marinovic’s stop and frisk of the defendant is whether his suspicion that defendant had committed or was about to commit a crime was reasonable.

Under the circumstances of this case, the officer did not have reasonable grounds to conclude that criminal activity may have been afoot. The officer gave no reasons in fact for his conclusions that defendant walked “in a suspicious manner” or that defendant may have committed a crime or was contemplating criminal activity. The facts that the defendant walked up and down the sidewalk for 10-15 minutes, seemed nervous, talked fast, moved around quite a bit, and volunteered an explanation for his presence were not reasons to think he may have been a criminal. It is certainly not a crime to walk up and down a sidewalk. Moreover, it is not unusual for a sanitation department employee to be seen waiting for someone on a city sidewalk. Officer Marinovic himself testified that on some occasions even innocent bystanders become nervous when approached by a police officer. Nervousness on ihe part of a black laborer when confronted by an armed uniformed police officer does not seem so unusual as to indicate guilt or criminal proclivity. See Shwartz, Stop and Frisk (A Case Study in Judicial Control of the Police), 58 J.Crim.L.C. & P.S. 433, 448 (1967); Lewis, Stop and Frisk as Arrest and Search — The Use and Misuse of Euphemisms, 57 J.Crim.L.C. & P.S. 251, 251-53 (1966); W. LaFave, Search & Seizure, § 9.1 at n. 53.

There is a marked contrast between the facts of this case and others in which the courts have approved a limited search of a person’s outer clothing for weapons. In Terry, for example, the police officer observed three suspects who appeared to be casing a store for a robbery. One of the suspects walked up the street, peered into a store, walked on, started back, looked into the same store, and then joined and conferred with his companion. The other suspect repeated this ritual, and between them the two men went through this performance about a dozen times. They also talked with a third man, and then followed him up the street about ten minutes after his departure. When the officer identified himself and asked the suspects for their names, the men only mumbled something. In the present case, the defendant Scott was merely walking up and down the sidewalk by himself as if waiting for someone. He didn’t mumble but readily explained his presence and produced identification.

Because of the protean variety of observed circumstances which might lead to a stopping, it is difficult to state clearly and precisely what situations are sufficiently suspicious to justify a stop. LaFave, § 9.3, p. 69. However, it is clear that the present case does not fit the mold of any of the typical cases where a reasonable suspicion was found to be present justifying an investigatory stop. The defendant was not carrying or tampering with property under circumstances which suggest that the property might have been obtained unlawfully as in State v. Fauria, 393 So.2d 688 (La.1981). He was not engaged in any activities justifying a suspicion that he was planning to commit or had committed a theft of or from a vehicle as in State v. Hunter, 375 So.2d 99 (La.1979). Defendant’s conduct did not justify a suspicion that he was planning a robbery of a commercial establishment as in Terry v. Ohio, supra. Nor was defendant in an area of a recently committed crime and he neither acted suspiciously nor resembled a description of the perpetrator as in State v. Evans, 388 So.2d 774 (La.1980), and State v. Edsall, 385 So.2d 207 (La.1980). See W. LaFave, § 9.3, 69-71, 82.

Moreover, none of the factors commonly taken into account in determining whether an officer’s suspicions were reasonable, but which do not, in and of themselves, justify a stopping for investigation, were present in the instant case. The defendant was not in the area at an unusual or suspicious time; he did not display any furtive actions or flight at the approach of Officer Marinovic; nor did Marinovic have any knowledge that the defendant had a police record of prior arrests or convictions. See W. LaFave, supra, § 9.3.

For the reasons assigned, we conclude that the revolver seized from Alfred was the product of an unreasonable search and seizure. At the time Officer Marinovic seized the defendant and searched him for weapons, the officer did not have reasonable grounds to suspect that the defendant was engaged in .criminal activity or that he was armed and dangerous. Accordingly, the trial judge’s ruling denying the defendant’s motion to suppress is hereby reversed and set aside.

MOTION TO SUPPRESS RULING SET ASIDE; CASE REMANDED.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I consider that the observations of the police officer of defendant walking back and forth on the sidewalk for ten or fifteen minutes together with his unsolicited responses upon being approached in an area where numerous street crimes had been committed gave the police officer a reasonable belief that a crime was about to be committed. Hence, I consider that the “stop and frisk” were reasonable under the circumstances. I respectfully dissent.

      .The Honorables Burrell J. Carter, Felix H. Sa-voie, Jr. and Melvin A. Shortess of the Court of Appeal, First Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Calogero, Marcus and Dennis.


text:
    LOUISIANA STATE BAR ASSOCIATION, Petitioner, v. Alfred B. SHAPIRO, Respondent.
    No. 82-B-0018.
    Supreme Court of Louisiana.
    April 1, 1982.
   ORDER

Based upon the Court’s concurrence with the opinion of the Committee on Professional Responsibility that the crimes of which Alfred B. Shapiro has been convicted constitute serious crimes, the necessary elements of which reflects upon said attorney’s moral fitness to practice law:

IT IS ORDERED BY THE COURT, that Alfred B. Shapiro be and is hereby suspended from the practice of law and said attorney’s license to practice is hereby suspended.

It is further ordered that the Committee institute the necessary disciplinary proceedings against Alfred B. Shapiro, seeking his disbarment or other remedy deemed appropriate, all in keeping with Article XV of the Articles of Incorporation of the Louisiana State Bar Association.

John A. Dixon Chief Justice

Pascal F. Calogero, Jr.

Walter F. Marcus, Jr.

James L. Dennis

Fred A. Blanche, Jr.

Jack C. Watson

Harry T. Lemmon

Associate Justices


text:
    Wilma Lee HOLCOMB v. Eugene Edward KINCAID.
    No. 82-C-0011.
    Supreme Court of Louisiana.
    April 5, 1982.
   In Re: Wilma Lee Holcomb, applying for 2nd Reconsideration to the Court of Appeal, Second Circuit, Parish of Caddo, No. 251, 213, 410 So.2d 1136.

Not considered. See Rule 9, Sec. 6 Supreme Court Rules.

LEMMON, J., concurs. The money judgment became definitive when this Court denied relator’s application for certiorari, 410 So.2d 1136. C.C.P. Art. 2166.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Solomon WASHINGTON, Jr.
    No. 81-KA-0453.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., P. Michael Cullen* Abbott Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Wilmer G. Hinrichs, New Orleans, for defendant-appellant.
   DIXON, Chief Justice.

The defendant, Solomon Washington, Jr., was charged by bill of information with obscenity (R.S. 14:106). The bill of information alleged that defendant exposed his genitals in a public place to one Jamie Calvert, an unmarried woman under the age of seventeen, with the intent of arousing sexual desires. After trial before a judge, defendant was found guilty as charged. The trial court sentenced the defendant to a term of two years at hard labor but suspended that sentence upon the condition that defendant serve one year in the Jefferson Parish prison. It is from this conviction and sentence that defendant appeals.

Jamie Calvert, a twelve year old girl at the time of the offense, lived in an apartment complex in Jefferson Parish. Between 5:30 and 6:00 p. m. on April 20, 1979 she was standing in the back door of her apartment watching her younger brother play football in a space or alleyway between two apartment buildings. While looking out the door, she saw a man expose his penis in another alleyway that intersected with the alley she was facing. The man was standing about forty-five feet from her in a passageway the width of the girl’s outstretched arms. There were no windows or doors along the walls of this passageway and nothing to obstruct the girl’s view of the man. When she first glanced at the man, he was standing facing her, but upon another glance she saw him holding his penis. She initially estimated that he was there for approximately two minutes but later said this time period was too long. On cross-examination she admitted that the man could have been trying to urinate, but then on re-direct examination she stated that she did not know what the word “urinate” meant and that he was not “going to the bathroom.” The girl ran, then the man ran, in opposite directions. The girl ran to the apartment of Chris Kirby, an employee of the apartment complex, while the man apparently went to a Time Saver store across the street. Some time later the girl identified defendant.

The defendant testified to the following events on the day in question. After work, as was his custom, he put on some tennis shoes and jogged about one-half mile to the Mike Miley Playground to exercise and play some basketball. At the playground he met a friend with whom he jogged for awhile. The two parted company when the defendant indicated that he was going to the Time Saver for an icee. At this point the defendant claims that he felt “pushed,” meaning that he needed to urinate. He testified that he had a weak bladder and weak kidneys from a hepatitis infection that he had been treated for by a Doctor Davis in October of 1978. He ran across to the apartment complex where Jamie Calvert lived and went into an empty passageway between two buildings. He testified that he stopped about four feet from the corner of a wall, looked around and not seeing anyone, he began to urinate. While he was urinating, he glanced and saw a girl coming down the sidewalk. He testified that as soon as he noticed her he turned away without finishing and went around the building to the Time Saver. Defendant testified that he was subsequently approached by two men and a woman who brought him back to the apartment complex where he was identified by Jamie Calvert as the man in the passageway.

Defendant argues that the state failed to prove that he exposed himself “with the intent of arousing sexual desire” as required by the obscenity statute in effect in April of 1979. (This section was amended by Act 252 of 1979). Only the child Jamie and the defendant testified about the exposure. Jamie said only that when she and the defendant looked at each other (forty-five feet apart), he pulled out his penis, looked at her, and then both ran, in opposite directions. Defendant was in a fairly narrow passageway between two brick apartments with no windows and no doors opening on the passageway. Defendant testified that he stopped to urinate, saw the girl and immediately ran.

Specific intent (to arouse sexual desire) was an element of the offense of obscenity at the time of this occurrence. The trial judge in oral reasons for his judgment stated that, since defendant was facing the victim when she saw him, “the Court must find that the area of arousing sexual desire must ordinarily follow” if the court believed the testimony.

The child did not see defendant open his pants. There was no specific evidence that defendant knew the child was present. Upon discovery, defendant’s immediate flight denoted innocence, not a guilty intent. Defendant’s intent to arouse sexual desire cannot be presumed from these facts. The state relies on circumstantial evidence to prove this element of the offense. Circumstantial evidence in criminal cases must exclude every reasonable hypothesis of innocence. R.S. 15:438. Defendant’s explanation of his need to urinate is such a reasonable hypothesis.

The conviction and sentence are reversed, and defendant is ordered discharged.

EDWARDS and LEAR, JJ. ad hoc, dissent.

       Judges Remy Chiasson, Wallace A. Edwards and Elmo E. Lear of the First Circuit participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.


author: CALOGERO, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. George LAVIGNE and Lawrence Gordon.
    No. 81-KA-1085.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, David L’Hoste, John Craft, William R. Campbell, Asst. Dist. Attys., for plaintiff-appellee.
    Numa Bertel and Dwight Doskey, Orleans Indigent Defender Bd., New Orleans, for defendants-appellants.
   CALOGERO, Justice.

In this appeal from criminal convictions we must decide whether the trial judge committed reversible error when he denied defendants’ motions requesting severance for trial of jointly charged defendants. For reasons which follow we determine that he did not err.

By bill of information, the Orleans Parish District Attorney charged defendants George Lavigne and Lawrence Gordon, along with one Ronald J. Veal, with the July 21,1980, attempted armed robbery and attempted second degree murder of Larry Sanderson in violation of La.R.S. 14:27, La. R.S. 14:64 and La.R.S. 14:30.1. Following trial, the jury found defendants Lavigne and Gordon guilty as charged on both charges. The jury deadlocked as to Veal and the trial judge declared a mistrial. The judge sentenced Lavigne to 30 years at hard labor for each crime, with the sentences to run concurrently. He sentenced Gordon to 20 years at hard labor for each crime, with the sentences to run concurrently. On appeal defendants Lavigne and Gordon each urge one assignment of error, that concerning the failure of the trial judge to grant a severance of trials of the defendants.

The victim of the crimes, one Larry Sand-erson, was seated at the bar at Tuckey’s Dome at the corner of North Claiborne Avenue and Dumaine Street in New Orleans when the owner Ms. Julia Humble arrived. After observing Lavigne, Gordon and Veal in the establishment, she instructed Lavigne to leave because he was wearing a pair of short pants which was improper attire, and because she had had trouble with him in the past. Lavigne and Gordon left the bar. Sanderson went to the restroom and while he was there, Lavigne reentered the bar and spoke with Veal. Ms. Humble had her security guard instruct La-vigne to leave, and he did so. Veal also left the bar at this time. When Sanderson returned from the restroom, Ms. Humble cautioned him not to leave the bar because she had overheard Veal and Lavigne making reference to the fact that Sanderson had money. Sanderson ignored the advice and refused to allow Ms. Humble to call a taxi for him, saying that he didn’t think that anyone would “do anything” to him. Instead Sanderson decided that he would walk home, and he left the bar.

Lavigne and Gordon jumped Sanderson just after Sanderson went out the door and turned the corner. Sanderson related that Lavigne grabbed him from behind and held down his arms while Gordon put a gun in his face and demanded his money. According to Sanderson, Veal stood a short distance away from the others. Thinking that the gun was a toy, Sanderson told Gordon to “Go ahead and shoot me with that firecracker.” Gordon fired a first time, hitting Sanderson in the chin. A second shot, fired a few seconds later, went through Sander-son’s side. Sanderson yelled for help and the three defendants began running. Sand-erson returned to the bar where someone called for the police and an ambulance.

Joseph Mimette had observed the attack on Sanderson outside Tuckey’s. He testified that Lavigne held the victim while someone else had something in the victim’s face. A short time later, Mimette, who could then see that Gordon was holding a gun, heard a sound “like the backfire of a car or a shot.” Mimette related that the offenders told the victim to leave and that, as Sanderson was walking away, he was shot again. According to Mimette, there was some distance between Veal and the other two throughout the incident.

The police arrived soon thereafter, obtained descriptions of the three offenders and broadcast the descriptions on the police radio. Officer Reynold, on patrol in the area, heard the broadcast and apprehended Gordon. After a brief search of the neighborhood, the police, accompanied by Mi-mette, located Lavigne and Veal.

Following the close of the state’s case, counsel for Veal called Girard Hubbard to testify. Hubbard told the jury that he had been in Tuckey’s the night of the shooting. Hubbard said that he had overheard a conversation between Lavigne and Gordon in which Lavigne told Gordon: “Sure, we can do it, man. We can get him. He had on a white shirt with khaki pants and he’s a white dude. We can get the white boy.”

During the pretrial stage of the prosecution, a single attorney represented both Veal and Lavigne. This attorney filed a motion to be released from his appointment to represent both Veal and Lavigne because he had become aware of an eye-witness who would “be available to the state to testify in an exculpatory manner as to Ronald Veal and in an inculpatory manner as to George Lavigne.” The motion named the witness as “Geraud Hubbard,” gave his address and stated that the witness’ identity had been brought to the attention of the assistant district attorney assigned to the case in an attempt to exculpate Ronald Veal. The trial judge ordered the attorney removed as counsel for Veal and Lavigne.

Approximately a month later, Lavigne’s new attorney moved that the trials of the three co-defendants be severed. In the motion, counsel “respectfully represented] that the ends of justice require that the trials of the three defendants herein be severed, in that their defenses are antagonistic, thus prejudicing the defense of Mover.” Following a hearing on this and other motions, the trial judge denied the motion to sever. At the hearing, defendants did not put on evidence regarding the antagonistic defenses, nor did they explain why the ends of justice required severance.

At the beginning of the second day of trial and during the state’s presentation of its case, Veal’s counsel moved for a severance of his client’s trial from that of the other two. Counsel said that he anticipated that he might be compelled to call witnesses in defense of Veal who would place that defendant in an “antagonistic position with respect to the co-defendants.” Counsel further expressed the opinion that trying Veal along with Lavigne and Gordon would prejudice Veal in the eyes of the jury. The trial judge denied the motion and the trial continued to the conclusion noted above.

Under La.C.Cr.P. art. 842 an objection made when more than one defendant is on trial is presumed to have been made by all defendants “unless the contrary appears.” In State v. Bergeron, 371 So.2d 1309 (La.1979), we extended the application of article 842 to written motions made by a co-defendant. Veal’s mid-trial motion specifically seeking to sever his trial from that of the other two defendants because his position was antagonistic to theirs, and complaining that he would be prejudiced by the joint trial, is not necessarily the type of motion which accrues to all defendants under article 842 and Bergeron. For all we can discern from the language of the motion alone, Lavigne and Gordon just might at that point in time, mid-trial, have preferred to have their fate go to the jury along with the possibly less culpable Veal. Arguably, “the contrary” i.e., that Lavigne and Gordon have not joined in the motion, does appear. We need not resolve that narrow issue, however, because the Gordon and Lavigne severance contention is presented clearly enough by the pre-trial motion for severance.

That pre-trial motion made by La-vigne's attorney complains of the triple trial, asserting “that the ends of justice require that the trials of the three defendants be severed, in that their defenses are antagonistic, thus prejudicing the defense of the Mover.” This motion, made by one defendant, Lavigne, in the joint trial, is presumed to have been made by Gordon also because “the contrary” does not appear. Rather, the defendants had a common interest in the success of the motion. La.C. Cr.P. art. 842; State v. Littleton, 407 So.2d 1208 (La.1981).

La.C.Cr.P. art. 704 directs that jointly charged defendants be tried jointly unless the state elects to try them separately or the court is “satisfied that justice requires a severance.”

As we stated in State v. Thibodeaux, 315 So.2d 769, 770 (La.1975):

Neither the present version of the statute nor its predecessor, article 316 of the Code of Criminal Procedure, sets any standards for the exercise of the authority vested in the trial judge to order separate trials of jointly charge defendants when, in his opinion, justice so requires. See La.Code Crim.P. art. 704, comment (c) (1966)

Consequently, through its jurisprudence, this Court has developed the antagonistic defense theory.

Until Thibodeaux, however, it was unclear under the jurisprudence whether an assertion of blame for the crime charged by one defendant against his co-defendant constituted “antagonistic defenses” requiring a severance. Some cases had held that the mere fact that one defendant was seeking to escape by throwing the blame upon the other was not sufficient to require a severance. State v. Williams, 250 La. 64, 193 So.2d 787 (1967); State v. Goury, 184 La. 955, 168 So. 113 (1936); State v. Duplechain, 136 La. 389, 67 So. 175 (1915); State v. Johnson, 116 La. 856, 41 So. 117 (1906). Conversly, the Court in an earlier opinion, State v. Bessa, 115 La. 259, 38 So. 985 (1905), ordered reversal of a conviction of two defendants on the denial by the trial judge of a motion for severance where the defenses were clearly antagonistic in that one or the other of the defendants had committed the crime.

Chief Justice O’Neil in State v. Birbiglia, 149 La. 4, 30, 88 So. 533, 542 (1921), stated that “[t]here is no case more appropriate for the granting of a severance at the instance of one of two or more co-defendants than a case where each defendant attempts to put the blame upon the other.”

In Thibodeaux we had before us, pre-trial, a ruling of the district judge refusing to grant a motion for severance. At the hearing on the motion Thibodeaux’s counsel revealed that Thibodeaux’s defense would be that the contraband seized in the apartment rented by the two co-defendants was in the exclusive possession of the other defendant, Sallettes, and that he, Thibodeaux, had no knowledge of its existence. We stated there that a mere allegation that a co-defendant intends to point an accusatory finger at the defendant is not enough. Nonetheless we held that the defendant before the bar had made a sufficient showing to the trial judge that justice required that the joint charge be severed to allow separate trials for each defendant. We note that the thrust of Thibodeaux’s defense, as outlined by his attorney, was directly accusatory of Sallettes and in essence would have required Sallettes to stand trial before two accusers, the state and Thibodeaux.

There followed our decision in State v. McGraw, 366 So.2d 1278 (La.1978). In that case there had been no pre-trial motion to sever and consequently no pre-trial ruling thereon. It was only during the course of the trial that it became apparent that the testimony of co-defendant Manchester was accusatory. She admitted that the murder took place but denied her own complicity in the crime. The trial judge first ruled on the severance motion mid-trial and this Court had its first opportunity to review that ruling after the defendant McGraw was convicted. We held that, even assuming that the defenses were antagonistic, we would not reverse because we reviewed the ruling post-trial and were able to find substantial other evidence of McGraw’s guilt. We therefore concluded that his conviction would have been a certainty, independent of the testimony of the co-defendant Manchester.

In the case at hand we are reviewing the ruling on a pre-trial motion for severance. Although the defendants did not seek writs prior to trial, it is incumbent upon us to review the validity of the ruling without regard to whether at trial substantial other evidence was introduced or whether his conviction would have been a certainty irrespective of the joint trial. The Thibodeaux case and its review standard are applicable here.

Nonetheless we find that our pro-defense holding in Thibodeaux is not controlling. The one question for our determination is whether the trial judge abused his discretion when he ruled that justice did not require a severance. This is so because the denial of a motion to sever will not be reversed on appeal unless we find that the trial judge abused his discretion in making the ruling. State v. Whitt, 404 So.2d 254 (La.1981); State v. Singleton, 352 So.2d 191 (La.1977); State v. Jenkins, 340 So.2d 157 (La.1976).

The situation in this case is different from the one in Thibodeaux where Thibo-deaux’s attorney informed the trial judge pre-trial that Thibodeaux’s defense would be to show that he had no knowledge of the existence of drugs in an apartment commonly shared with ‘Sallettes and that the drugs were the sole property of Sallettes. Thibodeaux’s assertion was not merely a broad based allegation, but the revelation of a precise, accusatory trial objective. Thi-bodeaux (through his counsel) was saying that he would place the blame on the co-defendant, Sallettes. In essence, Thibodeaux became a second accuser of his co-defendant.

In the case under review, Lavigne’s attorney, pre-trial, merely made the conclusory allegation that “the ends of justice require that the trials of the three defendants herein be severed, in that their defenses are antagonistic...” Admittedly, the trial judge had a little more information on which to base his ruling, for one month earlier he had been told by an earlier attorney that there was a witness, not the defendant Veal, who would testify in an incul-patory manner toward Lavigne and Gordon, and in an exculpatory manner toward Veal.

Even if we consider that assertion about the witness and his testimony as more than a mere allegation, this case still does not present a situation in which defendants necessarily have antagonistic defenses. In Thibodeaux one defendant personally intended to exculpate himself by placing the blame upon another defendant and the trial judge knew of this intended defense. When the trial judge knows that a defendant intends to lay the blame for the offense at the feet of his co-defendant, it is an abuse of discretion not to grant a motion for separate trials for the defendants. In the instant case, the trial judge was only informed that Veal was more likely to be exonerated by the jury than La-vigne or Gordon because a witness would likely inculpate those two defendants while giving more favorable testimony about Veal. Therefore the trial judge did not abuse his discretion in denying the motion.

Incidentally, had the specifics of the anticipated testimony of the witness as it later was given at trial been contained in the motion, we still would likely not find an abuse of discretion on the part of the trial judge. The witness testified that he heard Lavigne and Gordon plotting the robbery of Sanderson. While that is testimony accusatory of those defendants it is not an accusation by a co-defendant of the guilt of the remaining defendants. The fact that at trial it was the co-defendant Veal rather than the district attorney who called the witness does not alter our decision. It was the witness Hubbard, not Veal, who placed blame on Lavigne and Gordon. Furthermore, at the time of the pre-trial ruling the trial judge could not have been certain that the witness, known to the state, would not be called by the state.

Decree

For the foregoing reasons, we conclude that the trial judge did not err in refusing to grant the motion for severance. He did not abuse his large discretion when he determined in advance of trial that justice did not require separate trials of the defendants. Therefore the convictions and sentences of George Lavigne and Lawrence Gordon are affirmed.

AFFIRMED.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I respectfully concur.

The defendant has not shown the existence of antagonistic defenses which conflict to the point of being irreconcilable and mutually exclusive. Arguably, even if such a showing had been made, the trial judge’s denial of severance should only be reversed on a showing that the defendant suffered “compelling prejudice.” See, United States v. Sheikh, 654 F.2d 1057 (5th Cir. 1981); United States v. Horton, 646 F.2d 181 (5th Cir. 1981). I disagree, however, with the implication that an antagonistic defense would require severance only if a co-defendant intends to testify against his fellow defendants.

      . Sanderson had told Veal that he had just returned from a two-week hitch working offshore.

      . Presumably this motion was based upon the anticipated testimony of the witness found by Veal, although the motion does not so state.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Hillary BROWN.
    No. 81-KA-1373.
    Supreme Court of Louisiana.
    April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, J. Michael McDonald, Asst. Dist. Attys., for plaintiff-ap-pellee.
    M. Michele Fournet, David Randall Buckley, Baton Rouge, for defendant-appellant.
   BLANCHE, Justice.

Defendant was indicted by an East Baton Rouge Parish Grand Jury and charged with second degree murder on September 17, 1975. He was examined by a sanity commission at that time and determined to be unable to understand the charges against him, appreciate their seriousness or assist in his own defense. In February 1980, the defendant was evaluated again and found to be competent to stand trial. In November 1980, defendant pleaded guilty to a charge of manslaughter and was sentenced to serve ten years with credit for time served.

In the single assignment of error before this Court, defendant argues that the sentence imposed is excessive in violation of Article 1, Section 20 of the Louisiana Constitution of 1974. The defendant’s exposure, upon pleading guilty to manslaughter, was up to twenty-one years at hard labor; however, the imposition of a sentence, even though within the statutory limit, may violate a defendant’s constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Spencer, 374 So.2d 1195 (La.1979). A sentence is excessive if it is grossly out of proportion to the severity of the crime or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980).

Louisiana Code of Criminal Procedure Article 894.1 sets forth criteria for a sentencing judge to use in determining if a defendant’s sentence should be suspended or a defendant placed on probation and, if not, whether the sentence should be closer to the maximum or the minimum statutory range of sentences. The same criteria set forth for consideration under C.Cr.P. art. 894.1 are appropriate for evaluating whether a sentence within statutory limits is excessive by reason of its length or because it specifies confinement rather than less onerous sentencing alternatives. State v. Williams, 397 So.2d 1287 (La.1981); State v. Sepulvado, supra.

In order to comply with C.Cr.P. art. 894.1,a trial court should state for the record the considerations relied upon in sentencing and the factual bases for them. In most cases, this information is crucial to this Court when it is called upon to review a sentence for excessiveness because, without it, a sentence may appear to be arbitrary or excessive, unless there is evidence elsewhere of record which clearly illumines the sentencing choice. State v. Williams, supra. In this case, the sentencing judge failed to comply with C.Cr.P. art. 894.1 because he did not mention any of the possible mitigating factors; however, there is evidence elsewhere in the record to support the ten-year sentence imposed.

Statements given by the defendant and eyewitnesses to the shooting indicate that defendant was sitting in his car at the “Chicken Shack” when the victim got out of another car and approached him, cursing and shouting as he advanced. There was animosity between the two because the defendant had shot and injured the victim’s girlfriend in a previous encounter over money the victim supposedly owed the defendant. An argument ensued which ended when defendant pulled a gun and fired a single shot which killed the victim.

The record reveals several factors which might have been considered in mitigation. Defendant claims to have taken drugs immediately prior to the shooting and, although there is no proof of this, it does appear that defendant has a history of drug abuse. Further, the witnesses’ statements indicate that the victim initiated the encounter and a weapon was later discovered to be in his back pocket. We also note that this is the defendant’s first felony conviction.

A review of the record as a whole convinces this Court that the defendant’s sentence is not excessive even considering the possible mitigating factors. Although defendant did approach the victim initially, there is no indication that the victim ever removed the gun he carried from his back pocket. This is the defendant’s first felony conviction only because, after he was arrested for attempted murder in connection with the shooting of the victim’s girlfriend, the state reduced the charge from attempted murder, which is a felony, to the misdemeanor charge of aggravated assault, and he was sentenced on this charge. The defendant has also been arrested twice for armed robbery in unrelated incidents; however, these charges have not been prosecuted at this time.

The record supports the trial court’s statements that the defendant would be likely to engage in criminal activities if given probation or a suspended sentence and that it would deprecate the seriousness of the crime to sentence defendant to anything less than ten years. After reviewing the record in its entirety and considering the possible mitigating circumstances, we are convinced that this sentence is not excessive. Accordingly, we affirm.