author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Jerome WEST.
    No. 81-KA-1657.
    Supreme Court of Louisiana.
    Jan. 25, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Lindsay Larson, Louise S. Korns, John H. Craft, Asst. Dist. Attys., for plaintiff-appellee.
    Ralph S. Whalen of Oestreicher & Whalen, New Orleans, for defendant-appellant.
   CALOGERO, Justice.

The Orleans Parish Grand Jury indicted defendant Jerome West, along with Wendell McDonald, for the first degree murder of a 21-year old female college student, one Robyn Seymour, a violation of La.R.S. 14:30. The trial judge had granted McDonald’s motion for severance of the trials. Following West’s trial, the jury found him guilty of second degree murder. While the minutes included in the record transmitted for review are apparently incomplete, the trial judge apparently sentenced defendant in accordance with the statute: life imprisonment without benefit of parole, probation or suspension of sentence for 40 years. Defendant appeals his conviction on the basis of three assignments of error.

The state’s evidence linking defendant to the crime consisted primarily of defendant’s fingerprints, which were found at the scene of the crime, and his inculpatory statements. In these statements, defendant told of going with McDonald to get some money, of being with McDonald when McDonald robbed the victim, of driving McDonald’s car while McDonald drove in the victim’s car to a location away from the scene of the robbery, of waiting in McDonald’s car while McDonald led the victim away then returned to her car with her, of McDonald’s instructing the victim to remain there until he and defendant had left, of McDonald’s pulling the car into a driveway, turning around and driving alongside the victim’s car a second time, and of McDonald’s shooting into the victim’s car.

By his first assignment of error, defendant contends that the evidence shows that defendant did nothing more than find himself in the company of McDonald who committed the crimes. On the other hand, the state’s effort to prove that defendant was guilty of more than second degree murder as just a principal to an armed robbery during which the victim was killed, was not successful for the jury found defendant guilty of only second degree murder, thereby acquitting him of first degree (specific intent) murder.

Defendant argues that the record is devoid of any evidence whatsoever connecting him with the killing or the armed robbery, and that nothing indicates any intention by the defendant to be part of the activities. Defendant correctly states that the proper standard of review of the sufficiency of evidence was enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under Jackson, a reviewing court is to view “the evidence in the light most favorable to the prosecution” to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573 (emphasis in the original); State v. Edwards, 400 So.2d 1370 (La.1981).

Applying this standard to the case at bar, we find that the jury could have found the essential elements of the crime of second degree murder beyond a reasonable doubt. Defendant’s fingerprints were found on the car in which the victim was shot. His fingerprints were also found on an index card among the scattered contents of her purse across the street from her home, the location where her car was parked when she left home. Defendant, himself, in his statements, admitted going with McDonald to get some money and driving McDonald’s car, following McDonald and the victim as they drove from her house to the area where she was later shot.

Significantly, the jury did not find defendant guilty of first degree (specific intent) murder. Rather, they returned the responsive verdict of second degree (felony) murder. At the time of this crime, second degree murder was defined as “the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of ... armed robbery . . . even though he has no intent to kill”. Defendant’s fingerprints were found on one of the items taken from the victim’s purse and he admitted sufficient particulars of his involvement with McDonald in regard to this incident to establish minimally that he was a principal to armed robbery.

Defendant argues that the killing did not occur in the course of an armed robbery because the robbery occurred several blocks away and had been completed before McDonald shot the victim. We are not persuaded by this line of reasoning. The armed robbery and the shooting which followed constituted essentially a single criminal incident. The offenders never left the victim; instead they escorted her from the scene of the armed robbery to the location where the shooting took place. Under these circumstances it is apparent that the killing occurred as part of the armed robbery.

The trial judge did not err in denying defendant’s motion for a new trial. The verdict was supported by the evidence which was sufficient for the jury to have found defendant guilty of second degree murder beyond a reasonable doubt. This assignment lacks merit.

By his second assignment of error, defendant argues that the trial judge erred in admitting into evidence statements made by him on July 31,1977, and August 9,1977.

Defendant was arrested on an unrelated charge and was questioned regarding the instant crime while he was incarcerated. At the time of his arrest he was not under suspicion for this crime. In this first statement, defendant told of having seen a nickle-plated pistol at the home of Wendell McDonald’s girlfriend on July 8,1977. He also stated that he had heard Wendell speak of a new Cutlass, but that he had never seen that car although he had seen several other ears which Wendell had from time to time. When asked whether he had seen Wendell with a diamond ring recently, defendant responded that he had seen Wendell wearing a man’s diamond cluster ring. At the close of the statement, defendant was asked whether he had been coerced into making the statement or had been struck by anyone, and defendant answered that he had not. He was further asked whether he had been allowed to use the bathroom facilities and have water as needed, to which he replied in the affirmative.

On August 8, 1977, defendant became a primary suspect in the murder of Robyn Seymour and police interrogated him about his part in the crime on August 9,1977. At that time, defendant related that he was approached by Wendell McDonald in the courtyard of the St. Bernard housing project and that Wendell asked him to take a ride and get some money. Defendant accompanied Wendell who was driving a 1977 silver Cutlass. They drove around until they saw a young woman coming out of “some apartments” and approaching her car. As defendant remained in the Cutlass, Wendell approached her with the silver gun and robbed her of the contents of her purse. McDonald entered the victim’s car and instructed defendant to follow in the Cutlass. They drove for a few blocks and then parked the cars beside a park. At the park McDonald led the victim by the hand to some trees. The victim was pulling down her clothes. Defendant said that he started the car in preparation for leaving and McDonald and the victim came from behind the trees with the victim pulling up her clothes and McDonald fixing his. Defendant continued the statement by saying that after the girl got into her car, Wendell took the wheel of the Cutlass, drove into a driveway to turn around, pulled alongside the victim’s still parked car and began shooting.

Defendant’s motion to suppress the statements was denied by the trial judge following a hearing. At that hearing only the defense put on evidence. Defendant first called Dr. Ritter, a member of the sanity commission which had examined defendant to determine his competency to stand trial. Dr. Ritter described defendant as suffering from paranoid schizophrenia. Dr. Ritter stated that the disease had begun to manifest itself a number of years prior to the crime with which defendant was charged and the defendant had been hospitalized in the past. During one of these hospitalizations, in 1971, defendant had been administered an I.Q. test on which he scored 58. Dr. Ritter explained that an I.Q. test after symptoms of schizophrenia begin to manifest themselves is not completely accurate and further said that during a period of remission, the functional I.Q. of a schizophrenic may increase by as much as 10 points. Dr. Ritter had not retested defendant for his I.Q. when he examined him as a member of the sanity commission. Dr. Rit-ter categorized a person with an I.Q. of 58 as being moderately retarded. Dr. Ritter testified that he and another member of the sanity commission had listened to tapes of defendant’s statements and that it was their opinion that defendant was sane at the time the tapes were made. He based this opinion on the quality of defendant’s answers, which were crisp and to the point. Dr. Ritter stated that he discerned no hesitation and no vagueness on the part of defendant in answering the questions and based upon this, as well as the quality of defendant’s answers, he concluded that, defendant was not disassociated at the time of making the statements and that his thought processes were in order. Dr. Ritter summarized his testimony by stating that at the time of the statements, defendant seemed to have been in remission.

The prosecutor cross-examined Dr. Ritter and asked if he could determine from the tapes whether defendant’s statements had been voluntary. Dr. Ritter replied that he could tell that defendant was capable of responding to questions and that his responses were apparently spontaneous. Although he said that defendant was capable of giving a voluntary statement, Dr. Ritter said that he could not answer whether the statements were in fact voluntary.

Following Dr. Ritter’s testimony, defendant took the stand at the hearing on the motion to suppress. Defendant stated that he had been beaten during the taking of the statement. He maintained that he did not remember making a statement and did not remember a tape recorder. Defendant said that the police told him what happened and that he “told them the same thing they told me.” When asked by the judge what he meant by this, defendant did not explain, but repeated that they were telling him about the murder and asking if he was with the person who committed the murder. Defendant said that he replied that he was not. Defendant then said that he could not remember any more of what happened, but again repeated that "they were telling me about it.” Defendant again asserted that he was being beaten and added that he was crying because he was hurting. The judge asked defendant whether he had reported the beating to anyone and defendant replied that he had tried to tell the “tier captain” when he returned to parish prison but that this person would not call a doctor for him.

Defense counsel asked defendant whether anyone had told him of his rights, and he asked defendant the meaning of those rights. Defendant replied that having the right to consult with and obtain the advice of an attorney meant that he did not have to say anything until an attorney was present. He also said that if he didn’t have the funds to hire an attorney, the court would appoint one for him. Upon further questioning, defendant admitted that it was possible that he had been given his rights before making the statements and that he just didn’t remember it. Finally, defendant testified that he had completed the fifth or sixth grade in school.

On cross-examination by the prosecutor, defendant continued to assert that he had been beaten and that he could not remember having made a statement. On redirect, defendant told defense counsel that during the police interrogation he was not asked whether he had been beaten, an assertion which is repudiated by the tapes themselves.

Before a statement can be admitted into evidence, the state must prove that it was freely and voluntarily made. La.R.S. 15:451; State v. Campuzano, 404 So.2d 1217 (La.1981); State v. Petterway, 403 So.2d 1157 (La.1980); State v. Haynie, 395 So.2d 669 (La.1981); State v. Castillo, 389 So.2d 1307 (La.1980). If the statement was made during custodial interrogation, the state must also show that the defendant was advised of his Miranda rights before making the statement. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Petterway, supra; State v. Sonnier, 379 So.2d 1336 (La.1979). Finally, if the defendant alleges police misconduct in reference to the statement, it is incumbent upon the state to rebut these allegations specifically. State v. Petterway, supra; State v. Dison, 396 So.2d 1254 (La.1981); State v. Franklin, 381 So.2d 826 (La.1980).

Although the state put on no evidence at the hearing on the motion to suppress, we look to the totality of the evidence produced both at that hearing and at trial when we assess whether the state has carried its burden. We therefore include in our evaluation the trial testimony of Detective Martin Venezia, the tape recorded statements themselves and other evidence introduced at trial. Concerning the giving of the Miranda rights prior to taking the statement, Detective Venezia testified that he read the rights to defendant and that he explained these rights because he knew that defendant could not read or write. In this regard, the state introduced a rights of arrestee form on which these rights are printed. This form is dated August 9,1977, and in the taped statement of that date defendant acknowledges that the rights have been explained to him and that the signature on the bottom of the form is his. On that date at the beginning of the statement, defendant was asked what the Miranda rights mean and he responded “that I volunteer to tell the truth.”

Regarding defendant’s allegations of police misconduct, this charge is negated by defendant’s own words on the tapes. On the July 31 tape defendant was asked by the interrogating officers whether any officer had struck him and he replied: “No, sir, none at all.” He also was asked whether he had been coerced or threatened and replied negatively. He responded in the affirmative when asked if he had been allowed to use the bathroom and have water when needed. The August 9 tape concludes with defendant being asked if he had been threatened. Defendant said: “No one laid a hand on me — didn’t threaten me or nothing.” We believe that defendant’s own words sufficiently rebut his allegations that he was beaten. Although defendant asserted at the hearing on the motion to suppress that he was sobbing during the interrogation, the recording convinces us that this is not so.

Defendant’s most serious argument that the statements should not have been admitted into evidence is that his mental condition was such that it was impossible for him to give a voluntary statement. Defendant contends that his situation was even worse than that of the defendant in State v. Glover, 343 So.2d 118 (La.1979), in which the Court held that Glover’s statements were inadmissible because his mental condition was so poor that it was not possible for him to give a voluntary statement.

It is true that both this defendant and Glover were diagnosed as having serious mental illness, paranoid schizophrenia. However, the defendant before us, unlike Glover, was, by the testimony of his own witness at the hearing on the motion to suppress, in remission at the time he gave the challenged statements. Dr. Ritter based his conclusion that defendant was in remission, upon his assessment of defendant’s answers to the questions asked by the police. Dr. Ritter cited the clarity of the answers, the lack of rambling and the apparent spontaneity of the answers. We notice the same characteristics of the answers when we listen to the tapes.

Glover suffered from organic brain damage according to the psychiatrists who examined him. There is no evidence that this defendant is similarly affected. This defendant, like Glover, received prolixin, a very potent anti-psychotic drug, intramus-cularly. However, when defendant was returned to the parish prison from East Louisiana State Hospital, he refused to take prolixin by injection and another drug was substituted for it. Glover had to be continued on prolixin.

Finally, Dr. Ritter testified that the I.Q. score taken after defendant showed signs of schizophrenia was not necessarily accurate. He testified that the I.Q. score could be as much as 10 points higher when the schizophrenic is in remission. Defendant’s I.Q. test was administered when he was hospitalized for schizophrenia in 1971 (six years before the statements were made) and the score was then 58. Dr. Rit-ter classified 58 as moderately retarded and stated that an I.Q. of 65 would be considered borderline. Taken together, the testimony that defendant was in remission at the time he gave the statements, and the fact that his I.Q. probably made him a borderline mental retardate at the worst, satisfies us that defendant’s retardation was not of such a degree to make it impossible for him to give a voluntary statement.

Likewise, we do not believe that defendant’s schizophrenia renders his statements inadmissible. His own witness testified that he was in remission at the time he gave the statements. Despite repeated questioning by defense counsel, Dr. Ritter would not say that the statements were involuntary.

The trial judge’s ruling admitting the statements into evidence was not erroneous. This assignment lacks merit.

Defendant’s last assignment of error is that under our system by which he is required to plead both “not guilty and not guilty by reason of insanity” he is denied the opportunity to have the jury consider each such defense unaffected by the knowledge of his having taken these possibly alternative positions. He contends that arguing both pleas to the same jury violates his right to due process because in pleading “not guilty by reason of insanity” a defendant is essentially admitting having committed the criminal act but is denying criminal culpability because of his diminished appreciation of right and wrong, whereas a guilty plea denies commission of the crime. Concerned with the disadvantage of taking al-temative, contradictory positions, defense counsel says that he abandoned a viable insanity defense after opening argument and before closure of the case (by opting not to present insanity evidence) because he felt that the state had not produced sufficient evidence to prove that defendant committed any criminal act. Counsel cites no cases or specific authorities in support of his position.

In the instant case, defendant admitted that he was present when the armed robbery and murder took place. He argues, however, that his mere presence did not make him a principal to McDonald’s acts. His insanity plea asks the jury, if it rejects this argument, to find that he could not distinguish right from wrong and therefore could not be responsible for what happened. Defendant’s argument would be more persuasive, although not necessarily meritorious, if he were contending that he was not present at the commission of the crime. In that situation, a not guilty plea based upon an alibi defense and a plea of not guilty by reason of insanity would present clearly inconsistent although alternative defenses.

Whatever the plausibility of defendant’s theoretical argument, it is not persuasive in this case. There is no merit to defendant’s third assignment of error.

DECREE

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

AFFIRMED.

       Judges O. E. Price and Fred W. Jones, Jr. of the Court of Appeal, Second Circuit, and Judge John C. Boutall of the Court of Appeal, Fourth Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr., James L. Dennis and Jack C. Watson.

      . This Court has already affirmed McDonald’s conviction for first degree murder. 387 So.2d 1116 (La. 1980). Pursuant to the jury recommendation, McDonald received a life sentence without benefit of parole, probation or suspension.

      . La.R.S. 14:30.1 as it stood in July, 1977 when this crime was committed.

      .Several state witnesses related events which coincide with the later admissions of defendant. Residents living across the street from the scene of the murder told of seeing two cars parked there. One witness said that the second car, a Cutlass, drove off, returned to the first car, a Vega, and that shots were fired from the Cutlass into the Vega. A neighbor of the victim related having found scattered papers belonging to the victim across the street from the victim’s house. Defendant’s fingerprints were found on one of these papers and on the Vega.

      . As a result of an examination and hearing held earlier in January, 1978, defendant had been found incapable of assisting in his defense and had been committed to East Louisiana State Hospital. At a later hearing, in January, 1979, following a second examination, defendant had been declared competent to stand trial. Both earlier hearings had taken place before the motion to suppress hearing. Dr. Ritter had been a member of both commissions.

      . We have been supplied with and have listened to the recordings of defendant’s statements.


source: Caselaw Access Project

author: LEMMON, Justice. DENNIS, Justice.

license: Public Domain

text:
    Ralph BIZE, et al. v. Syble BOYER, et al.
    No. 81-C-1746.
    Supreme Court of Louisiana.
    Jan. 25, 1982.

      Chris J. Roy, Alexandria, for plaintiff-applicant.
    Joseph T. Dalrymple, of Antoon, Dalrym-ple & Beck, John G. McLure, of McLure & McLure, David P. Spence, of Provosty, Sa-dler & Delaunay, Alexandria, Kathrine S. Williamson, for defendant-respondents.
   LEMMON, Justice.

The issue in this personal injury action is whether the court of appeal properly deleted awards for future loss of wages and future medical expenses from the trial court judgment.

After the October 21, 1976 automobile accident plaintiff, a 49-year old female canning factory worker, was treated as a hospital outpatient for foot and neck complaints. Cervical osteoarthritis was diagnosed, and a soft cervical collar was prescribed. A belatedly diagnosed fracture of the fifth metatarsal prevented her from returning to work through March 30, 1977, when an x-ray of the foot on her last visit was reported as normal.

Plaintiff did not return to work nor did she seek further medical attention until September 21,1977, when she consulted Dr. Weiss, an orthopedic surgeon, complaining of pain in the mid-cervical region and the foot. For the first time shown in the medical records plaintiff also complained of back pain. The doctor found no objective evidence of cervical or lumbar injury, noting her subjective complaints might indicate some mild soft tissue strain secondary to the injury. He opined plaintiff could return to work if she wore a steel shank shoe.

Plaintiff next consulted Dr. Joffrion, an orthopedic surgeon, on October 19, 1978, almost two years after the accident, complaining of foot, knee, neck and low back pain. The doctor found radiographic evidence of increased muscle tone in the cervical spine and clinical evidence of scoliosis, as well as radiographic evidence of moderate degenerative changes in the lumbar spine. He opined that the described accident could have temporarily aggravated the radio-graphic and clinical findings, but felt there was no indication of need for current therapy or active orthopedic treatment.

On May 31, 1979, plaintiff consulted Dr. Patton, a neurosurgeon, with neck, back and leg complaints. She also described frequent falls when her left leg “gave out”. After the initial examination the doctor attributed her problems to obesity and osteo-degenerative disease, but did not rule out a ruptured disc, primarily because of a decreased ankle jerk on the left side.

On the July 10 visit plaintiff was using a walker because of leg weakness. The only significant finding at the examination was a decreased ankle jerk, but the doctor opined that if there was any nerve root compression, it was not severe enough to cause frequent falls. However, he suggested a lumbar myelogram “to make sure that we weren’t overlooking something”. The myelogram was performed in August, 1979, and the doctor reported that the test did not reveal any abnormality which warranted surgical intervention.

Plaintiff did not consult any other doctor prior to the March, 1980 trial.

The trial court found plaintiff was disabled at the time of trial as a result of the 1976 accident and awarded her $10,000 for past and future pain, suffering and disability, $6,000 for loss of wages from the date of the accident to the date of trial, $14,000 for “future loss of earning capacity and wages”, and $2,682 in past and anticipated medical expenses. The court of appeal affirmed the awards of damages incurred as of the date of trial, but deleted the awards for future lost wages and future medical expenses, holding that there was no medical evidence to support those awards. 402 So.2d 110. We granted plaintiff’s application for certiorari in order to review the appellate court’s reduction of the judgment. 406 So.2d 610.

In arguing against the reduction, plaintiff relies on her own testimony and that of her relatives, as well as the deposition testimony of Dr. Patton. The doctor acknowledged that plaintiff had some symptomatol-ogy (decreased ankle jerk and hypesthesia) indicative of nerve root compression; that the straightening of the lordotic curve of the cervical spine (shown on his x-rays and on those of Dr. Joffrion), without any history of neck trouble prior to the accident, could indicate plaintiff was still suffering from a residual cervical sprain injury (although he commented that continued straightening two years after the accident was unusual); that the narrowing of the cervical disc space could indicate impingement of nerve roots, causative of pain radiation; and that the osteoarthritic changes of the lumbar spine (shown in 1977 x-rays) could cause the effects of an injury to last longer (although he observed that the period of time in this case was unusual). He further stated that plaintiff’s persistent leg and back discomfort, whether due to disease or trauma, was likely to persist. While he could not explain plaintiff’s continued falling, he had no reason to believe her complaints were exaggerated, and he conceded plaintiff’s complaints and conduct were inconsistent with that of a person who had continuously worked hard all of her life and had never seen a doctor before the accident.

Plaintiff testified that she had progressively worsened, going through stages of leg weakness, falling, use of a walker, and finally utilization of a wheelchair. Her mother, sister and son confirmed that plaintiff can no longer work at the factory or even around the house.

As to plaintiff’s ability to work at the time of trial, plaintiff had the burden of proof. While she and her relatives testified that her present condition was disabling, Dr. Patton did not even comment on the subject. Dr. Patton’s testimony at best supported a conclusion that plaintiff, as of her last visit on August 1, 1979, could have some residual discomfort causally related to the accident. His only comment on whether that condition could be disabling was that he could not explain clinically or radio-logically any reason for plaintiff’s fall or leg weakness sufficient to require use of a walker.

In order to obtain an award for impaired earning capacity (or future loss of wages) and for future medical expenses, a claimant must present medical evidence which at least indicates there could be a residual disability causally related to the accident. Lay testimony simply serves to complement and corroborate the medical evidence. In the present case the medical evidence merely indicated there could be discomfort, still existing at the time of the last examination, which may or may not have been causally related to the accident. (In fact, Dr. Patton agreed that plaintiff’s failure to seek medical attention, except for seeing Dr. Weiss one year after the accident and Dr. Joffrion one additional year later, indicated more probably than not that her problems were related to natural degenerative changes.)

In summary no doctor opined that plaintiff’s condition at time of trial either was disabling or resulted from the 1976 accident. There was also no evidence as to the probable need for medical care subsequent to trial. Because medical evidence in support of lay testimony as to continuing disability and causation thereof is simply absent from the record, the court of appeal properly deleted awards for those items of damages.

Finally, plaintiff complains that the court of appeal erred in assessing one-fourth of the costs of appeal to her. She points out that she did not appeal or answer the appeal.

Defendant’s appeal resulted in reduction of plaintiff’s judgment from $32,682 to $17,-566, or almost one-half. Under these circumstances we cannot say the court of appeal abused its discretion in assessing one-fourth of the costs of appeal to plaintiff.

The judgments of the lower courts are affirmed.

DIXON, C. J., dissents.

DENNIS, J., dissents with reasons.

DENNIS, Justice.

I respectfully dissent.

The Court of Appeal was clearly wrong in affirming the trial court’s award for loss of wages. In light of a clear mathematical error, the award should have been increased.

      . The doctor recorded plaintiff’s statement that she “has not worked since the accident due to the pain in her foot”. At the trial in March, 1980, plaintiff testified her foot no longer bothered her.

      .Medical expenses of $1,566 had been incurred as of the date of trial.

      .The reports of Drs. Weiss and Joffrion, which were introduced by stipulation in lieu of their testimony, reflected findings from single examinations long before trial and were not determinative of plaintiffs claim for continuing disability as of the date of trial or of the causation of such disability.

      .The trial court’s award for past and future pain, suffering and disability affirmed by the intermediate court, compensated her for that item of damages.


author: MARCUS, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Albert C. KIPER.
    No. 81-K-1803.
    Supreme Court of Louisiana.
    Jan. 25, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Dolores Y. Mason Smith, Asst. Dist. Attys., for plaintiff-relator.
    Mitchell J. Hoffman and Ann Wise of McCloskey, Dennery, Page & Hennesy, New Orleans, for defendant-respondent.
   MARCUS, Justice.

Albert C. Kiper was charged by bill of information in the Juvenile Court for the Parish of Orleans with criminal neglect of family, in violation of La.R.S. 14:74, because of the alleged nonsupport of his three minor children.

On July 3, 1980, defendant appeared in court in proper person and after waiving his right to counsel pled not guilty to the charge. He consented to proceed immediately to trial. At trial, it was established that defendant and Patricia Ann McQuire (Tracy) were married on November 27, 1971. Joseph Charles Kiper was born of the marriage on June 14, 1972. Defendant testified that he and his wife separated sometime thereafter, and during the time they were separated, Tracy was pregnant with her second child, Troy O’Neil Kiper, who was born on October 6,1973. The marriage ended in divorce on March 25, 1974. On October 21, 1974 (some 220 days after the divorce), Tracy delivered her third child, Eileen Dionne Kiper. At the time of trial, the three children resided with their maternal grandmother, Lillian Valentine McQuire, who was receiving welfare assistance for the support of the three children. Defendant inquired of the court as to whether he was being held to support all three children. The trial judge replied in the affirmative noting that all three children were “legally presumed” to be his.

After trial, defendant was found guilty as charged. Instead of imposing sentence under La.R.S. 14:74, the trial court issued an order pursuant to La.R.S. 14:75 directing defendant to contribute $25.00 a week for the support of his three children, plus costs.

On July 2, 1981 (about one year after rendition of the support order), defendant appeared in court in response to an order directing him to appear in connection with the “charge of non-support (criminal neglect).” At the commencement of the hearing before the same judge who rendered the previous order of support, defense counsel moved to suspend payments as to two of the children, Troy and Eileen, because of two pending suits to disavow paternity in the Civil District Court for the Parish of Orleans. The trial judge, over the state’s objection, granted the motion to suspend payments “insofar as the two children are concerned pending the outcome of the two cases.” Defendant was ordered to pay $8.33, plus costs, for support of the other child, Joseph Kiper. On application of the state, we granted certiorari to review the correctness of that ruling.

Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children. La.Civ.Code art. 227. The pertinent articles of the civil code in effect at the time of the births of the children in question regarding the presumption of paternity are as follows:

Art. 184. Presumed paternity of husband
The law considers the husband of the mother as the father of all children conceived during the marriage.
Art. 186. Presumption of paternity, minimum period after date of marriage
The child capable of living, which is born before the one hundred and eightieth day after the marriage, is not presumed to be the child of the husband; every child born alive more than six months after conception, is presumed to be capable of living.
Art. 187. Presumption of paternity, maximum after dissolution of marriage or separation
The same rule applies with respect to the child born three hundred days after the dissolution of the marriage, or after the sentence of separation from bed and board.
Art. 188. Presumption of paternity, cohabitation after separation
The legitimacy of the child born three hundred days after the separation from bed and board has been decreed, may be contested, unless it be proved that there had been cohabitation between the husband and wife since such decree, because it is always presumed that the parties have obeyed the sentence of separation.
But in case of voluntary separation, cohabitation is always presumed, unless the contrary be proved.

The criminal statute under which defendant was convicted, La.R.S. 14:74, provides in pertinent part:

Criminal neglect of family is . . . intentional nonsupport: ... (3) by either parent of his minor child who is in destitute or necessitous circumstances when such parent has the financial means to provide support, there being a duty established by this Section for either parent to support his child. The parents shall have this duty without regard to reasons and irrespective of the causes of his living separate from the other parent. The duty established by this Section shall apply retrospectively to all children born prior to the effective date of this Section.

In cases of legitimate children, proof of the birth during the marriage establishes the obligation of support. State v. Sims, 220 La. 532, 57 So.2d 177 (1952). The criminal support statute is intended to enforce this obligation against the legal and biological parent. State v. Manning, 390 So.2d 494 (La.1980). The presumption of paternity extends to all children conceived during marriage as well as to children born within 300 days after dissolution of the marriage. This includes the period pending any action for disavowal. As long as the husband of the mother is presumed to be the father of children conceived during marriage and bom within 300 days after dissolution of the marriage, he is civilly obligated to support the children. He is also subject to criminal prosecution under La.R.S. 14:74 for the nonsupport of the minor children of whom he is presumed to be the father.

In the instant case, defendant was the husband of the mother of Troy Kiper, bom during their marriage, and Eileen Ki-per, born within 300 days after dissolution of their marriage; therefore, he is presumed to be the father of these children and is obligated to support them and is criminally responsible for their nonsupport even pending his actions to disavow paternity. The trial judge erred in holding otherwise. We recognize that once an order for support is issued pursuant to La.R.S. 14:75, the trial court may increase or decrease the sum ordered from time to time as the circumstances may require; however, we do not consider that the discretion accorded to the trial court by this statute permits him to suspend support payments merely on the circumstance of a pending action for disavowal.

In sum, we conclude that the trial judge erred in suspending support payments to Troy and Eileen Kiper pending defendant’s actions to disavow paternity. We must reverse.

DECREE

It is ordered that the ruling of the trial judge suspending support payments to Troy O’Neil Kiper and Eileen Dionne Kiper is reversed and set aside. The case is remanded to the trial court for further proceedings not inconsistent with the views herein ex-' pressed.

DENNIS, J., concurs with reasons.

CALOGERO, J., concurs for reasons assigned by DENNIS, J.

WATSON, J., dissents.

LEMMON, J., dissents and will assign reasons.

DENNIS, Justice,

concurring.

I respectfully concur.

We need not resort to our civil law presumptions of paternity to resolve the present issue. Moreover, I question whether these presumptions should ever be used to establish paternity in criminal neglect prosecutions. State v. Manning, 390 So.2d 494 (1980) (Dissenting Opinion).

Defendant was found guilty of criminal neglect of family, R.S.La. 14:74, and ordered to contribute $25.00 a week for the support of his three children, pursuant to R.S.La. 14:75. The trial court may increase or decrease the sum ordered from time to time as the circumstances may require. However, the fact that defendant has filed suit to disavow paternity does not constitute a sufficient basis upon which to suspend support payments. Such a result would afford those found guilty of criminal neglect with an easy escape from responsibility for substantial portions of support.

      . La.R.S. 14:75 was amended by La.Acts 1981, No. 812, § 4.

      . The record indicates that defendant was in arrears in the sum of $550 in support payments and $27.50 in costs.

      . 404 So.2d 282 (La. 1981).

      . The articles governing the presumption of paternity were amended by La.Acts 1976, No. 430, § 1. This court has held that the 1976 amendments affect substantive rights and contain no language which expressly indicates an intent to make them retroactive; therefore, births before the effective date of the amendments are governed by the law then in effect. State v. Manning, 390 So.2d 494 (La.1980); Pounds v. Schori, 377 So.2d 1195 (La.1979).

      .In Manning, defendant was charged with criminal neglect of family in violation of La. R.S. 14:74 because of the alleged nonsupport of a minor son born to his wife five months after their marriage but while he was incarcerated in prison. At trial, defendant sought to establish that he was not the biological father of the child. The trial judge decided to allow evidence on the issue. We granted the state’s application and reversed the ruling of the trial judge finding that since defendant was presumed to be the father of the child, absent a timely disavowal, he was the legal father of the child. Therefore, evidence that he was not the biological father of the child was inadmissible.


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Alfred SCRAMUZZA and Ronald Gregoire.
    No. 81-K-2101.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Philip Andrew Prossnitz, Asst. Dist. Attys., New Orleans, for plaintiff-relator.
    Salvatore Panzeca, of Racivitch, Carriere, Panzeca & Charbonnet, New Orleans, for defendant-respondent.
   LEMMON, Justice.

Defendants filed a motion to suppress certain evidence seized in a search conducted pursuant to a warrant. The trial judge granted the motion, and we granted certio-rari to review that ruling. 404 So.2d 283.

The issues raised by the defendants are whether the warrant particularly described the place to be searched, as required by La.Const. Art. I, § 5 (1974) and C.Cr.P. Art. 162, and whether the affidavit supported the issuing magistrate’s finding that the officers who executed the affidavit had probable cause to believe gambling was going on at the particular place sought to be searched.

The warrant was issued to search for certain gambling materials believed to be “located at 5654 Hawthorne St. within the Parish of Orleans”. The application described the premises as a wood frame residence, apparently two stories, painted green with black trim, and stated the following reasons supporting the warrant request:

“On Wednesday, September 17, 1980 Dets. Rickey Bruce and Wayne Jusselin of the Vice Crimes Section met with a reliable confidential informant. This informant has given Det. Jusselin and members of the Vice Crimes Section information in the past 5 years which has led to the arrest and conviction of numerous bookmakers in the New Orleans area.
“The information received from the informant was that he had been placing illegal football bets with a white male named ‘Hoss’, by dialing telephone numbers 486-6977 and 486-6831. The informant described ‘Hoss’, as a white male, 5'6" to 5'7" tall, 170 to 180 lbs., with thin brown hair, who drives a Cadillac. The informant stated that he had last placed a bet with ‘Hoss’ on Sunday, September 14, 1980. Dets. Bruce and Jusselin left the informant after making arrangements to meet at a later date.
“On Friday, September 19, 1980 Det. Jusselin contacted the Security Division of the South Central Bell Telephone Company. Det. Jusselin learned that telephone numbers 486-6977 and 486-6831 were listed to Richard Evans, 5654 Hawthorne St. Det. Jusselin also learned that both of the telephone numbers were equipped with the call waiting feature and that telephone number 486-6977 was additionally equipped with the call forwarding feature offered by South Central Bell. It should be noted that subscribing to telephone numbers in names other than their own is a practice commonly used by bookmakers to avoid police detection.
“Also on Friday, September 19, 1980 Det. Bruce checked with New Orleans Public Service and learned that the utilities for 5654 Hawthorne St. were in the name of A.R. Arsenault. It should be noted that subscribing to utilities in names other than their own is also a common practice used by bookmakers to avoid police detection.
“On Sunday, September 21, 1980 Dets. Bruce and Jusselin met in the Vice Crimes Section office with their reliable confidential informant. Det. Jusselin asked the informant to place a football wager with ‘Hoss’ as he had done in the past. Det. Bruce watched as the informant dialed telephone number 486-6977. Det. Jusselin listened on an extension telephone and monitored the conversation. After one ring, the telephone was answered by a male voice stating ‘Hello’. The informant asked if ‘Hoss’ was speaking to which he received an affirmative answer. After asking for and receiving the spread on several of the professional football games being played that day, the informant placed a sizeable wager on one of the games. The male voice repeated the bet and terminated the call.
“On Monday, September 22, 1980 at approximately 4:30 PM Det. Jusselin dialed telephone number 486-6831. The call was answered by an unknown female after three rings of the telephone. Det. Jusselin asked to speak to ‘Hoss’. The female stated that ‘Hoss’ was not there, but would be at 5:30 PM. Det. Jusselin terminated the call after telling the female that he would call back.
“On Monday, September 22, 1980 at approximately 5:00 PM Dets. Bruce and Jusselin conducted a surveillance of 5654 Hawthorne St. At approximately 5:27 PM Dets. Bruce and Jusselin observed a 1976 orange colored Cadillac pull up and park in front of 5654 Hawthorne St. A white male, approximately 5'8" tall, 180 lbs., wearing a green shirt and gray pants, fitting the informant’s description, exited the Cadillac carrying a brown paper bag. The male then removed a brief case from the rear seat of the vehicle before walking directly to the front of 5654 Hawthorne St. and entering. Det. Jusselin proceeded to a nearby telephone as Det. Bruce maintained surveillance of 5654 Hawthorne St. Det. Jusselin dialed telephone number 486-6831. After one ring the telephone was answered by a male voice stating ‘Hello’. Det. Jusselin hung up the telephone and rejoined Det. Bruce. At approximately 9:00 PM Dets. Bruce and Jusselin terminated their surveillance and returned to the Vice Crimes Section office.”

When the warrant was executed, police arrested both defendants and seized numerous items associated with gambling operations.

At the hearing of the motion to suppress defendant Gregoire testified that the address of the place, at which he was arrested and the search was conducted, was 5654 Hawthorne Place, New Orleans, not Hawthorne Street. In order to determine whether there were any other streets in the city by that name, the trial judge obtained a United States Post Office Zip Code Directory and found listings of Hawthorne Place and Hawthorne Avenue. Taking judicial notice of the governmental publication, the trial judge admitted a copy of the pertinent directory page, over the state’s objection. He then ordered the evidence suppressed, concluding that the bare municipal address was insufficient to describe particularly the place to be searched.

Insofar as this record shows, Hawthorne Place is the only street in the City of New Orleans with the name “Hawthorne”. The reference to the public way on which the building fronted as “Street” instead of “Place” was therefore a minor inaccuracy which had no practical significance. Furthermore, the officers who conducted the surveillance were the same officers who were to (and did) conduct the search. Under the overall circumstances there was little likelihood that the officers would search the wrong premises. United States v. Darensbourg, 520 F.2d 985 (5th Cir. 1975). We conclude that the search warrant, listing 5654 Hawthorne Street in New Orleans and depicting the exterior appearance of the residence, clearly described with particularity the place to be searched.

Defendants argue in brief that the affidavit did not reveal that the officers obtained sufficient information from the telephone company to establish probable cause to believe the telephones used in the gambling operations were located at 5654 Hawthorne in New Orleans. (The officers purposefully called the number of the telephone without the call forwarding feature, and they presumably knew that the telephone exchange with the prefix 486 is located in that part of the City of New Orleans encompassing the 5600 block of Hawthorne. If this argument had been made to the trial court in the motion to suppress or at the hearing, the state might have established the officers’ knowledge of the location associated with this prefix.) Nevertheless, the officers further developed the tip by calling the number of the telephone without the call forwarding feature and determining from a woman that “Hoss” was to return at 5:30 p.m. The officers then established a surveillance at 5654 Hawthorne Place and observed a man (who exactly fit the informant’s description) drive up at 5:27 p.m. in an orange Cadillac and enter the residence. When one officer dialed the same telephone number, a man answered.

The magistrate had before him the information obtained by the officers from the reliable informant and from the subsequent surveillance, and he reasonably concluded that the officers had probable cause to believe that the telephones used in the gambling operation were located at the residence that they observed on Hawthorne Place. The test for evaluating a warrant affidavit supporting a search is one of reasonableness. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). When tested and interpreted in a commonsense and realistic fashion, the affidavit supports the magistrate’s conclusion.

Accordingly, the judgment of the trial court is reversed, and the motion to suppress is denied. The matter is remanded for further proceedings.

      . The second issue is raised for the first time on appeal. For the reasons stated, this contention has no merit and is being treated as properly presented.

      .Hawthorne Avenue, with a listed zip code of 70123, is located in Jefferson Parish, outside of the City of New Orleans. This is a geographical fact, of which the court can take judicial notice. R.S. 15:422(6). Moreover, the zip code directory is the sort of commercial publication which should be treated as a self-authenticating document admissible as an exception to the hearsay rule. See Fed.R.Evid. 803(17) and 902(5).

      . The burden of showing that another public thoroughfare bears the name “Hawthorne” falls upon the defendant, because he is challenging the validity of a search authorized by a warrant.. C.Cr.P. Art. 703.

      . The issuing magistrate only had the statutory authority to issue a warrant authorizing a search of a place located within the Parish of Orleans. See C.Cr.P. Art. 161.

      . The sole ground asserted in the motion to suppress was that the search was unreasonably conducted without a warrant.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. James DUNN.
    No. 81-K-2132.
    Supreme Court of Louisiana.
    Jan. 25, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Julie E. Cullen, Asst. Attys. Gen., Leon A. Picou, Jr., Dist. Atty., for plaintiff-relator.
    Wilson R. Ramshur, St. Francisville, for defendant-respondent.
   DIXON, Chief Justice.

Defendant James Dunn was indicted by the West Feliciana Parish Grand Jury for a murder committed while he was an inmate at the Louisiana State Penitentiary. He entered a plea of guilty without capital punishment. In May, 1981 defendant filed an application for post-conviction relief based on the allegation that his 1964 plea was involuntary. On July 31, 1981, following an evidentiary hearing, the trial judge ordered the defendant’s conviction annulled and set aside and granted the state the delays allowed by law to retry the defendant. We granted the state’s application for certiorari to review that judgment.

Defendant was represented by court appointed counsel on the murder charge. On the morning set for trial, defendant withdrew his initial plea of not guilty and not guilty by reason of insanity and entered a plea of guilty without capital punishment. The trial judge accepted the plea and sentenced defendant to life imprisonment.

In his application for post-conviction relief, one of defendant’s contentions was that his plea was based on an understanding that he would be released after serving ten years and six months of his life sentence, but that the state failed to honor the plea bargain.

Testimony at the evidentiary hearing revealed that at the time defendant entered his plea, it was common knowledge that life imprisonment generally meant ten years and six months with good behavior, and that life sentences were submitted by the Department of Corrections to the pardon board for consideration with no action needed by the inmate, and that more often than not the Governor approved the pardon board’s recommendations. John Rarick, the then presiding judge, testified that although he did not make the plea bargain he probably admonished the defendant that with good behavior life was ten years and six months, and that if he (defendant) maintained good behavior and the matter came before the pardon board, he, as a member, would vote to recommend that defendant’s sentence be commuted. Additionally, the attorney who represented defendant on the murder charge testified that he advised defendant that “10-6” was not guaranteed, but based on the history of the policy, he felt it was more likely than not that defendant would serve only ten years and six months of a life sentence.

Following the evidentiary hearing, the trial judge annulled and set aside defendant’s conviction, concluding that defendant's plea was involuntary because it was influenced to a significant degree by defendant’s expectation that he would serve only ten years and six months of his life sentence.

The state argues that the conviction should not have been set aside, as it made no guarantee at the time defendant entered his guilty plea that he would serve only ten years and six months, and, consequently, defendant was neither misled nor deceived into pleading guilty. Additionally, the state argues that defendant’s plea was substantially influenced by his desire to escape the death penalty.

We must consider whether, under all the circumstances, the guilty plea was entered knowingly and voluntarily. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); State v. Jones, 398 So.2d 1049 (La.1981). The voluntariness of a guilty plea must be determined according to factors existing at the time it was entered. Generally, a guilty plea in duced by promises and made without understanding of the consequences will not sustain a conviction. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); State v. Jones, supra. The guilty plea, however, will be ruled effective when entered “voluntarily after proper advice and with full understanding of the consequences.” Machibroda v. United States, supra, 368 U.S. at 493, 82 S.Ct. at 513, 7 L.Ed.2d at 478.

In the present case, defendant did not allege that his guilty plea was entered in exchange for a particular sentence, only that he had an understanding that he would serve only ten years and six months of a life sentence. This expectation alone, however, will not undermine the voluntariness of defendant’s guilty plea. On the morning set for trial, defendant withdrew his initial plea and entered a plea of guilty without capital punishment. His attorney testified that defendant was aware of the consequences of being tried and convicted of murder. He was aware of what the lesser crimes were and the penalties therefor. Nevertheless, he chose to plead guilty without capital punishment knowing that he would receive a life sentence. These facts are undisputed by defendant. He understood that commutation of his sentence was not guaranteed, but that it was more probable than not if he maintained good behavior. When asked at the evidentiary hearing whether he was told that life meant “10-6,” defendant responded, “I got that impression.” The record clearly shows, therefore, that his guilty plea was not induced by the state; he was not promised anything in exchange for his plea. Defendant entered his plea based on a rational knowledge of the alternatives that were available to him. He was aware of the relevant circumstances and likely consequences of his plea, including the fact that commutation of his sentence might well rest on his good behavior while in prison. We think, under these circumstances, defendant knowingly and voluntarily entered his guilty plea.

Defendant argues in brief that the repeal of R.S. 15:571.7 deprived him of the benefit of receiving automatic consideration for commutation of sentence.

At the time of defendant’s plea, the usual procedure, with respect to the inmate who was sentenced to life and so conducted himself as to merit the approval of the superintendent of the penitentiary, was to have his case automatically forwarded for consideration of commutation of sentence after serving ten years and six months. This policy was permitted in part by R.S. 15:571.7, which provided:

“Whenever a prisoner who has been convicted of a crime and sentenced to imprisonment for life, so conducts himself as to merit the approval of the superintendent of the state penitentiary he may apply for a commutation of his sentence and the application, upon approval of the superintendent, shall be forwarded to the governor. The governor may commute the sentence upon the recommendation in writing of the lieutenant governor, attorney general, and presiding judge of the court before which the conviction was had or any two of them. No commutation under this Section shall reduce the period of incarceration to less than ten years and six months.” (Emphasis added).

R.S. 15:571.7 was repealed by Act 490 of 1979. The repealed statute did not, however, provide for automatic consideration of commutation of life sentences by the governor. Moreover, this practice by the Department of Corrections was mandated neither by statute nor the Constitution, and therefore never acquired the effect of law. R.S. 15:571.7 created a statutory right that permitted prisoners to apply for commutation of their life sentences and provided the procedure therefor. Defendant may still exercise that right under the rules established by the Board of Pardons pursuant to R.S. 15:572, et seq. See Rules of the Department of Corrections on Board of Pardons, 5 La.Reg. 345 (1979).

We conclude, therefore, that defendant knowingly and voluntarily entered his guilty plea, and the repeal of R.S. 15:571.7 has not operated to deprive defendant of any statutory or constitutional right.

For these reasons, the judgment of the trial court is reversed and the conviction is reinstated.

      . Defendant states that he has applied for commutation thirteen times and has been approved by the pardon board twice, but the Governors have not signed the pardons.


author: CALOGERO, Justice. DIXON, Chief Justice,

text:
    Juanita McDonnieal ADAMS v. Henry Earl ADAMS, Sr.
    No. 81-C-2266.
    Supreme Court of Louisiana.
    Jan. 25, 1982.

      Jake Shapiro, Alexandria, for defendant-respondent.
    William H. Ledbetter, Elizabeth Erny Foote of Trimble, Randow, Percy, Smith, Wilson & Foote, Alexandria, for plaintiff - applicant.
   CALOGERO, Justice.

Plaintiff seeks a divorce from her husband, based upon her having lived separate and apart from him continuously for more than one year. She contends that under La.R.S. 9:301 she is entitled to a judgment of divorce notwithstanding that her husband was committed to a mental institution on the first day of the separation and has remained there ever since.

The trial court and the Court of Appeal denied plaintiff a divorce upon their construction of the jurisprudence which has in past years applied the essentially identical divorce statute to continuous separation periods where one of the spouses has been insane or committed.

For the reasons which follow, we determine that she is entitled to a judgment of divorce.

The parties were married on February 29, 1948. They lived together until July 22, 1977, although not without substantial turmoil in the latter years. Plaintiff testified that during the last ten years of the marriage, defendant frequently exhibited irrational behavior, characterized by extreme verbal abuse and threats of physical violence directed toward family members. She further testified that defendant frequently threatened her with a machete which he kept in their home. The record shows that in May of 1974 defendant was hospitalized at Central Louisiana State Hospital in Pineville for treatment of mental illness. Defendant remained hospitalized for approximately a month and was released in June of 1974. In March of 1977, defendant was again hospitalized for psychiatric treatment at the Springfield, Missouri, Federal Psychiatric Hospital after threatening to injure a United States postal worker. Following his release from that facility in May of 1977, defendant was placed on federal probation for an eighteen month period in connection with that incident.

With regard to the events which culminated in Mrs. Adams’ leaving the matrimonial domicile, she testified that on the night of July 21, 1977, defendant was belligerent and verbally abusive toward her. At that time, the parties’ son was in Shreveport and defendant demanded that plaintiff order their son to return home immediately. She testified that she tried to placate the defendant and he eventually went to bed. The next morning, she stated, defendant arose and again began verbally abusing her and demanding that their son be ordered to return home. At that point, defendant grabbed and choked the defendant and threatened her with the machete. When she was able to escape, Mrs. Adams fled from the home and went to her sister-in-law’s house next door. Defendant pursued plaintiff, but when he could not get into his sister’s house, he returned home.

Plaintiff contacted defendant’s federal probation officer, Timothy Harrison, seeking his advice as to the best way to handle the violent domestic situation. She told the probation officer at that time of her intent to separate permanently from her husband. Harrison suggested that she remain at her sister-in-law’s house until he might have an opportunity to speak with defendant and evaluate his mental condition. Harrison testified that plaintiff had asked him how she might get her personal belongings from the house as she intended to leave her husband permanently. He also stated that plaintiff did not at that time make any specific request that defendant be hospitalized. Harrison later contacted defendant at his office, and after speaking with defendant determined that some affirmative action had to be taken to protect plaintiff and her family from defendant’s violent conduct. Harrison then contacted the coroner’s office for information concerning the procedure for an emergency commitment. After obtaining the information, Harrison contacted plaintiff and recommended that she sign formal commitment papers to have her husband committed. On that same day, July 22, 1977, defendant was taken to Central Louisiana State Hospital. Plaintiff and defendant have not lived together since then.

About seven months later, on February 21, 1978, plaintiff filed suit for separation from bed and board alleging cruel treatment as a ground. That lawsuit apparently did not proceed to judgment.

On January 30, 1980, some two and one-half years after the initial physical separation, Mrs. Adams filed suit for divorce on the grounds that the parties had been living separate and apart continuously for more than one year. Defendant through counsel filed exceptions of no right of action and no cause of action. Both exceptions were referred to the merits. After trial on the merits, the court ruled in favor of defendant, denying plaintiff a divorce on the grounds that defendant was insane at the time of the initial separation, and that under La.R.S. 9:301 and the interpretive jurisprudence, it is necessary that the trial judge find that both parties were sane at the time of the initial separation. The Court of Appeal affirmed the trial court ruling for the same reasons, relying upon Galiano v. Monteleone, 178 La. 567, 152 So. 126 (1933), Ridell v. Hyver, 215 La. 358, 40 So.2d 785 (1949) and Clark v. Clark, 215 La. 835, 41 So.2d 734 (1949). We granted writs to review the lower court judgments and the jurisprudence in this area of the law.

La.R.S. 9:301 provides:

When the spouses have been living separate and apart continuously for a period of one year or more, either spouse may sue for and obtain a judgment of absolute divorce.

Plaintiff argues that this statute only requires that the parties live apart for a period of one year; that it does not require that the separation be voluntary, or that both parties be sane at the outset of the separation, or thereafter.

Defendant on the other hand argues that the separation contemplated by the statute is a voluntary one, and that a litigant does not prove that the separation was voluntary where the separation commences because of the insanity and/or institutional commitment of one of the parties.

Under defendant’s interpretation of the statute (and because there is no statutory provision in Louisiana permitting a spouse to obtain a divorce on the grounds of the other’s insanity), it would be impossible for a married person to obtain a divorce once his spouse has exhibited such behavior that he or she might be considered insane by the trial judge. In contrast, where both parties to the marriage are sane, either may choose, against the will of the other, to live separate and apart continuously for one year and thereby establish the right to a divorce under La.R.S. 9:301. In the case of the couple where one of the spouses is afflicted with mental illness, the healthy spouse is denied the right to secure a divorce, a right he or she would otherwise have but for the mate’s mental condition.

Under plaintiff’s interpretation of the statute, a couple forced or prompted to live apart because of a work assignment, military service or such, without any intention on the part of either spouse to put an end to the marital association, could obtain a divorce if the physical separation continues for one year.

After considering the statute, La. R.S. 9:301, the apparent Legislative intent in enacting it, the jurisprudence, and the arguments of the parties, we determine that neither party’s position is fully correct. For the reasons which follow we believe that the “living separate and apart” contemplated by La.R.S. 9:301 must be voluntary on the part of at least one of the parties (even though the statute does not specifically so provide), and continuous for a period of one year. The commencement of that year only begins when a spouse evidences an intent to end the marital association. The insanity of the other, coincident with or subsequent to the outset of the couple’s physically living separate and apart is not necessarily determinative.

In searching for the Legislative intent in enacting La.R.S. 9:301, we have found that the Legislature has amended the statute on several occasions, changing the required period for living separate and apart without changing the essential words of the statute, notwithstanding the interpretation which has been placed upon it by this Court from time to time. Therefore, in ascertaining the intent of the Legislature in enacting the statute as last amended in 1979, and in interpreting and applying it, we feel that a review of the prior jurisprudence and an interpretation in keeping with the decided cases of this Court, to the extent possible, is necessary.

The first case to address this issue was Vincent v. LeDoux, 146 La. 144, 83 So. 439 (1919). In Vincent, the Court considered the meaning of the words “living separate and apart” contained in Act No. 269 of 1916 (that statute required a separation period of seven years). In that case the parties had physically separated in 1911. Thereafter, in 1914, Mr. Vincent’s wife was interdicted. In defense to the divorce proceeding brought by Mr. Vincent, defendant contended that the separation contemplated by the statute was a voluntary one, and that the separation could not be voluntary while one of the parties was of an insane mind. The Court disagreed, and observed that the Legislature, in enacting the statute, had determined that it was “prejudicial to the interests of society and of the parties themselves that married persons who live separate and apart should be held in their bonds and denied the right to choose other mates'. ...” The Court specifically held that the separation contemplated by the statute did not have to be with the acquiescence of both spouses, that the intention of Mr. Vincent to terminate the marital association was clearly evidenced by the fact that the separation took place three years before his wife’s mental deterioration, and that neither the commencement nor the running of the statutory period was precluded, or interrupted by the mental condition of Mrs. Vincent.

The next opinion of the Court to address the issue was Artigues v. Lalande, Sup.Ct. No.26752, (La.1925). That opinion was rendered on June 22, 1925, but while the case was pending on application for rehearing, one of the parties died and the case was dismissed on the survivor’s motion. The Court decision was thus not final and the opinion was not published. We discuss this case nevertheless because it has been repeatedly cited and relied on in later cases as being contrary to Vincent. Artigues, like Vincent, was concerned with the proper application of Act 269 of 1916. In Artigues, the separation started when the wife was committed to a mental institution. There was no intent expressed by Mr. Artigue prior to, coincident with or subsequent to the commitment to put an end to the marital association, at least not until he filed the suit for divorce. To the contrary, throughout the wife’s confinement, the husband made regular visits, took her off the grounds on outings and constantly sent her presents. Unlike in the Vincent case, Mr. Artigues was not living separate and apart from his wife with the intention of ending the marital association. In finding that the Artigues case was distinguishable from Vincent and that Mr. Artigues was not entitled to a divorce, the Court held that “by ‘living separate and apart’ the 'statute means a living separate and apart under circumstances which show that the parties have separated, or that one of them has abandoned or left the other.”

In Levegue v. Borns, 174 La. 919, 142 So. 126 (1932) the Court relied on Artigues to deny plaintiff a divorce where, like in Artigues, the separation was initiated by the commitment of the wife and there were no circumstances showing that the husband therein had ever “abandoned” his wife. The Court held that the statute did not authorize the granting of a divorce “where for that reason alone [separation because of commitment to a mental institution] the husband has not been living under the same roof with her.” (Emphasis provided).

In Galiano v. Monteleone, 178 La. 567, 569, 152 So. 126 (1933) the Court erroneously determined that Artigues and Levegue had overruled Vincent, and held that the husband could not obtain a divorce under Act No. 31 of 1932 (that statute required a separation period of four years) because the physical separation commenced upon the wife’s commitment to a mental institution, notwithstanding that the husband had evidenced his intent to terminate the marital association by filing suit for separation from bed and board one month after the commitment. Contrary to Galiano’s assertion, Artigues and Levegue had not overruled Vincent. The facts of Artigues and Levegue were found in those cases distinguishable from the facts in Vincent. Excluding Galiano, the prior cases can be consistently read as requiring that the separation must be with the intent of terminating the marital association, and that a physical separation alone is not sufficient.

This Court, in the next case to address the issue, noted the essential distinction between separations which, at their outset and/or throughout, are without an expressed intent to sever the marital relationship, and those that are with such intent. Ridell v. Hyver, 215 La. 358, 40 So.2d 785 (1949).

In Ridell, this Court reversed the two lower courts and held that Mrs. Ridell’s petition did state a cause of action against her husband for divorce on the grounds of living separate and apart continuously for two years under Act No. 430 of 1938 (the statute required a separation period of two years) where the parties separated in June of 1935 and the husband was not committed until March of 1936. The Court held that the separation contemplated by the statute was one which “must be with the intention of at least one of the parties to live separate and apart, or because one of the parties, with or without the acquiescence of the other, intends to discontinue and sever the marital relationship.” In the course of the opinion, Ridell noted that although Galiano had said that the ruling in Vincent was unsound, Vincent was, rather, distinguishable from the other cases.

Finally, in Clark v. Clark, 215 La. 835, 41 So.2d 734 (1949), the Court followed the Artigue, Levegue and Galiano cases in holding that plaintiff’s petition did not state a cause of action for divorce based on the grounds that the parties had lived separate and apart continuously for two years where there was no allegation by the plaintiff of an intent to end the marital relationship at the outset of the separation or thereafter, rather only that the parties had lived apart because of the wife’s continuous confinement in a mental institution. However, the Court there restated the holding of Ridell, quoting therefrom, “[i]t (the separation) must be with the intention of at least one of the parties to live separate and apart, or because one of the parties, with or without the acquiescence of the other, intends to discontinue and sever the marital relationship.”

The common thread that runs through all of the above cases, with the sole exception of Galiano, such that they are in harmony, is that the separation contemplated by the statutes must be a voluntary one on the part of at least one of the parties, with voluntariness being established when one party evidences his or her intent to put an end to the marital association. Evidence that the parties have not resided under the same roof for the statutorily required period, without more, is not sufficient to obtain a divorce under the statute. We affirm this prior interpretation of the statute and further clarify it by adding that from the point in time that a party evidences an intention to terminate the marital association, when coupled with actual physical separation, the statutorily required separation period begins to run. And that is so regardless of the cause of the initial physical separation. To the extent that Galiano, supra, is inconsistent with these views, that case is overruled.

This interpretation of La.R.S. 9:301, or more particularly what is meant by the words “living separate and apart”, coincides with the interpretation given in the military separation cases. Otis v. Bahan, 209 La. 1082, 26 So.2d 146 (1946).

In Otis, supra, the husband left the matrimonial domicile to go into the service on January 3, 1943. At that time, the wife lived with her mother-in-law (the matrimonial domicile) where she remained until May of 1943, at which point she left her mother-in-law’s home and began living elsewhere. The husband filed suit for divorce in February of 1945 on the grounds that the parties had lived separate and apart for two years. The husband contended that he had received a letter from his wife on January 10,1943 two years and one month before he filed the divorce suit, in which she stated that she no longer wanted to remain married to him. However, he was unable to produce that letter. The trial court dismissed the husband’s suit. This Court affirmed the lower court ruling stating: “The separation intended by the statute is a separation by which the marital association is severed.... The separation must be with the intent of the married persons to live apart because of their mutual purpose to do so, or because one of the parties with or without the acquiescence of the other intends to discontinue the marital relationship.”

Applying that interpretation of the statute to the facts before it, the Court held that the separation initiated when the husband was inducted into the service was not such as was contemplated by the statute. However, the Court implied that had plaintiff been able to produce the letter his wife allegedly sent him, telling him that she no longer wished to remain married to him, the two year period would have commenced running from that date and he would have been entitled to a divorce. The Court noted that the separation period did commence when the wife left her mother-in-law’s house and began residing elsewhere, thereby evidencing her intent to sever the marital association. (This was of no help to plaintiff because that had not taken place a full two years before the suit was filed). So, while the Court held that the outset involuntary separation (military induction) would not start the living separate and apart period, it nonetheless determined, perhaps in dicta, that the period can commence during the same separation period at such time as one of the parties clearly indicates an intention to sever the marital association.

In the case before us, plaintiff, Mrs. Adams, left the matrimonial domicile on the morning of July 22, 1977. She testified that at the time she left she was intending to separate from her husband permanently. She stated that she told that to her husband’s probation officer, Mr. Harrison, and that she also told that to her sister-in-law. Mr. Harrison confirmed plaintiff’s testimony on this point. He stated that Mrs. Adams told him that she feared for her life and that she was never going back with her husband. Mr. Adams was committed to Central Louisiana State Hospital that afternoon. Thereafter, plaintiff returned to live in their home since the husband was confined elsewhere.

In further support of Mrs. Adams’ resolve to sever the marital association the record shows that she filed suit against her husband for a separation from bed and board on February 21, 1978 just seven months after the parties separated and almost two years before the present divorce suit was filed. Mrs. Adams also testified that she was contacted by the hospital regarding whether she would want or would allow her husband to come home for weekend visits, and she informed them that she did not want him to come home and would not allow him to stay with her. While there are no dates in the record regarding these discussions between Mrs. Adams and the Central Louisiana State Hospital personnel, the record does show that she had a similar conversation with Judge Humphries in January of 1979, more than one year before she filed the instant suit.

In the case before us, the preponderance of the evidence supports plaintiff’s contention that when she left her husband on July 22, 1977 it was with the intention of severing the marital relationship. As we interpret the statute and view the relevant cases, the voluntary separation on her part was sufficient to start the one year living separate and apart period. This is so notwithstanding that on that same day Mr. Adams was committed because of a serious mental condition. And, if the one year period did not start running at this point, it certainly did when Mrs. Adams filed the separation suit, well over one year before she instituted this divorce proceeding.

Therefore, we hold that plaintiff’s petition does state a cause of action for divorce based on the grounds that the parties have continuously lived separate and apart for one year, her evidence supports a judgment of divorce in her favor and plaintiff’s suit was erroneously dismissed below after trial on the merits.

Decree

For the foregoing reasons, the judgment of the Court of Appeal affirming the dismissal of plaintiff’s suit is reversed and there will be judgment in favor of plaintiff, Mrs. Juanita Adams, and against defendant, Mr. Henry Adams, granting her an absolute divorce.

REVERSED AND RENDERED.

DIXON, C. J., subscribes to the majority opinion and adds concurring reasons.

WATSON, J., concurs in the result.

DIXON, Chief Justice,

subscribes to the opinion and adds concurring reasons.

I respectfully note that I subscribe to the court’s opinion, in spite of its mention of “insanity,” because it appears that defendant was neither interdicted nor “notoriously insane” and was, therefore, not incapable of standing in judgment. Either case would present a different factor not present in this case.

      . The statute was originally enacted by Act No. 269 of 1916. It required a seven year separation period, but was otherwise essentially the same as La.R.S. 9:301. The statute was first amended by Act No. 31 of 1932 requiring a four year separation period. It was amended by Act No. 430 of 1938 requiring a two year separation period. It was amended by Act No. 31 of 1960 retaining the two year separation period but making other amendments not relevant to this discussion. It was last amended by Act No. 360 of 1979 requiring a one year separation period.