source: Caselaw Access Project

author: DIXON, Justice. DENNIS, Justice, MARCUS, Justice

license: Public Domain

text:
    PLAQUEMINES PARISH COMMISSION COUNCIL and Chalin O. Perez v. Leander H. PEREZ, Jr., District Attorney.
    No. 66274.
    Supreme Court of Louisiana.
    Jan. 24, 1980.
    Rehearing Denied March 3, 1980.

      Jerald N. Andry, Gilbert V. Andry, III, New Orleans, for defendant-applicant.
    J. Minos Simon, J. Minos Simon, Ltd., Lafayette, for plaintiff-respondent.
    Abbott J. Reeves, Gretna, Director, Research and Appeals, 24th Judicial Dist. Court, amicus curiae for Louisiana Dist. Attys. Ass’n.
   DIXON, Justice.

Plaintiffs in this case are the Plaque-mines Parish Commission Council, which constitutes the governing body of that parish, and the council’s president, Chalin 0. Perez, brother of defendant district attorney. In July of 1979, plaintiffs learned (according to their petition) of the theft of more than $200,000 of public funds by Michael M. Chauppette, a council employee whose official duties included the keeping of some public records. Chauppette is not a party to this suit. The theft was accomplished by the use of forged checks drawn against the council’s account with the Delta Bank and Trust Company. Plaintiffs informed the district attorney of the theft and then, because the district attorney “did substantially nothing,” executed affidavits before a justice of the peace, charging Chauppette with the offense. In August, 1979, a special grand jury was convened by the defendant district attorney.

In this suit plaintiffs seek to compel the recusation of the district attorney and to enjoin him from taking any action with respect to the investigation of the theft by Chauppette and the investigation of the Plaquemines Parish Commission Council and its officials and employees “in conjunction with the Special Grand Jury in current session.” The defendant district attorney filed exceptions of unconstitutionality, lack of subject matter jurisdiction and no right or cause of action, all of which were overruled by the trial court. Writs were granted to review the ruling on these exceptions.

Provisions for Recusal

Recusation of a district attorney, the action which plaintiffs have petitioned the district court to take, is provided for by C.Cr.P. 680, which states:

“A district attorney shall be recused when he:
(1) Has a personal interest in the cause which is in conflict with fair and impartial administration of justice;
(2) Is related to the party accused or to the party injured, or to the spouse of the accused or party injured, to such an extent that it may appreciably influence him in the performance of the duties of his office; or
(3) Has been employed or consulted in the case as attorney for the defendant before his election or appointment as district attorney.”

The relative uniqueness of Louisiana’s provision for mandatory recusation of a district attorney is reflected by the fact that a 1960 survey of ten states selected at random from among those jurisdictions with the most up-to-date procedures revealed that only one of those states, Missouri, provided by statute for recusation of a district attorney; in that state, however, recusation was discretionary with the trial judge, not mandatory. Pugh and Pugh, The Work of the Louisiana Supreme Court for the 1958-1959 Term, 20 La.L.Rev. 201, 321 (1960). In most jurisdictions, disqualification of a prosecuting attorney is governed by those general principles of professional ethics which relate to the protection of confidentiality and the prohibition against the representation of conflicting interests. Griffin, Annotation, Disqualification of Prosecuting Attorney on Account of Relationship with Accused, 31 A.L.R.3d 953 (1970).

The right to challenge the competency of an official conducting a trial appears to be rooted in the civil law: the Codex of Justinian provided for the recusation of a judge in order that litigation might proceed without suspicion, while the Siete Partidas of Spain contained broad provisions for recus-ing a judge on the grounds of fear, suspicion, and personal hostility. Putnam, Recu-sation, 9 Corn.L.Q. 1 (1923). The remedy of recusation entered the United States with the purchase of Louisiana. Putnam, supra; Slovenko, Je Recuse!, 19 La.L.Rev. 644, 650 (1959). The Louisiana Code of Practice of 1825, article 338, provided four grounds for the recusation of a judge in civil cases. Act 303 of 1858 extended the remedy of recusation to those criminal cases in which a judge was related to a person charged with a criminal offense. In 1877, Act No. 35, the legislature amended § 1067 of the Revised Statutes of 1870, which contained the grounds for recusation of a judge, to provide for recusation of a district attorney on similar grounds.

The grounds for recusation of a district attorney established by the legislature in 1877 were his relationship, within certain specified degrees, to the party accused or party injured, and his prior employment or consultation by the accused. In promulgating the Code of Criminal Procedure in 1928, the legislature included an additional ground in Article 310, the section which provided for recusation of a district attorney: “if said district attorney shall have a personal interest adverse to the prosecution.” In State v. Tate, 185 La. 1006, 171 So. 108 (1936), this court construed “a personal interest adverse to the prosecution” to include any interest on the part of the district attorney which was adverse to the state’s interest in impartial justice. It therefore found that the trial court should have granted defendant’s motion to recuse a district attorney who had been retained as counsel by plaintiffs in civil suits against, defendant arising from the incident which also gave rise to the criminal charges. The court observed:

“The district attorney is a quasi judicial officer. He represents the State, and the State demands no victims. It seeks justice only, equal and impartial justice, and it is as much the duty of the district attorney to see that no innocent man suffers as it is to see that no guilty man escapes. . . . Therefore he should not be involved or interested in any extrinsic matters which might, consciously or unconsciously, impair or destroy his power to conduct the accused’s trial fairly and impartially.” 185 La. at 1019-1020, 171 So. at 112.

Article 680 of the Code of Criminal Procedure of 1967 codifies this view of the state’s interest in prosecution by providing for recusation of a district attorney when he “[h]as a personal interest in the cause which is in conflict with fair and impartial administration of justice.”

It should be noted that recusation is not the sole method provided by Louisiana law for circumscribing a district attorney’s exercise of his authority. Article 4, § 8 of the Constitution empowers the attorney general, for cause and with the trial court’s authorization, to institute, prosecute, or intervene in any criminal action or proceeding, or to supersede the district attorney in any civil or criminal action. The “cause” requirement refers to a showing that the district attorney is not adequately asserting some right or interest of the state. Har-grave, The Judiciary Article of the Louisiana Constitution of 1974, 37 La.L.Rev. 765, 835 (1977). Article 10, § 25 of the Constitution and R.S. 42:1411 — 1412 empower the attorney general to institute suit for removal of a district attorney who is convicted of a felony while in office. District attorneys are also among those officials who may be impeached by the legislature for commission or conviction of a felony or for malfeasance or gross misconduct while in office, under Article 10, § 24 of the Constitution, or whose recall may be effected by an election ordered by the governor pursuant to a petition from the electorate, under Article 10, § 26 of the Constitution and R.S. 42:341 et seq. Among these methods, however, only recusation provides a means for protecting a particular defendant against pros-ecutorial bias.

Plea of Unconstitutionality

District Attorney Perez’s plea of unconstitutionality rests, first, on the contention that C.Cr.P. 680 constitutes a legislative restriction, enacted without constitutional authorization, of the plenary powers granted to district attorneys by Article 5, § 26 of the Constitution, which provides:

“(B) Powers. Except as otherwise provided by this constitution, a district attorney, or his designated assistant, shall have charge of every criminal prosecution by the state in his district, be the representative of the state before the grand jury in his district, and be the legal advis- or to the grand jury. He shall perform other duties provided by law.”

It is true that the other methods of limiting the prosecutor’s powers, i. e. intervention or supersession by the attorney general, impeachment, removal, and recall, are specifically provided by the Constitution, while there is no specific constitutional provision for recusation. It is also true, however, that Article 1, § 2 of the Constitution provides that “no person shall be deprived of life, liberty, or property, except by due process of law,” and that this court has defined the essence of due process as “protection from arbitrary and unreasonable action.” Babineaux v. Judiciary Commission, 341 So.2d 396, 400 (La.1976). Due process is also defined by the Constitution itself to require impartiality. Article 1, § 22 provides:

“All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.”

We find, therefore, that C.Cr.P. 680’s provision for recusation is not only provided for but required by the constitutional guarantee of the fair and impartial administration of justice.

District Attorney Perez also contends that article 680 may not constitutionally provide for a district attorney’s recusation from investigatory proceedings in which he is acting as legal advisor to, and the state’s representative before, a grand jury. He bases this contention on the allegation that the secrecy accorded to grand jury proceedings by Article 5, § 34 of the Constitution and C.Cr.P. 434 would be violated by the evidence introduced in support of a motion for recusation. A potential conflict with the constitutional and statutory provisions for secrecy of grand jury proceedings will not invalidate the re-cusal article. There is an adequate remedy for a potential violation of grand jury secrecy in the assertion of the privilege implicitly created by the secrecy provisions of C.Cr.P. 434, at the time the secrecy is threatened.

The plea of unconstitutionality was therefore properly denied.

Exception of Lack of Jurisdiction Over the Subject Matter

Jurisdiction over the subject matter is defined by C.C.P. 2 as “the legal power and authority of a court to hear and determine a particular class of actions or proceedings . .. . ” Article 5, § 16 of the Constitution confers upon district courts “original jurisdiction of all civil and criminal matters,” except as otherwise authorized by the Constitution. See Bowen v. Doyal, 259 La. 839, 253 So.2d 200 (1971). Because the Constitution makes no exception to this general jurisdiction for recusation proceedings, the district court clearly has jurisdiction over this action, and defendant’s exception was properly overruled.

Exception of No Right of Action

The exception of no right of action raises the issue of whether plaintiffs belong to the particular class in whose exclusive favor C.Cr.P. 680 provides the remedy of recusation. Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972); McMahon, The Exception of No Cause of Action in Louisiana, 9 Tul.L.Rev. 17 (1934). While the text of the recusation article is silent on this point, it is clear from the history of the provision for recusation, traced above, that the remedy was developed in order to provide a form of protection against bias and partiality to one prosecuted for commission of a criminal offense. C.Cr.P. 381 defines a criminal prosecution as a prosecution instituted “for the purpose of bringing to punishment one who has violated a criminal law.” Because the Plaquemines Parish Commission Council, one of the plaintiffs here, is insusceptible of being brought to punishment, it can not be the object of a criminal prosecution. The council is therefore not a member of the class to which the remedy of recusation is extended, so that it has no right of action under article 680. The trial court’s overruling of defendant’s exception of no right of action with regard to the council must be reversed and the council’s action for recusation dismissed.

With regard to plaintiff Chalin 0. Perez, on the other hand, criminal prosecution is not an impossibility. The trial court was therefore correct in overruling defendant’s exception of no right of action, as to him.

Exception of No Cause of Action (Recusal)

In Hero Lands Co. v. Texaco Inc., 310 So.2d 93, 96 (La.1975), we presented the following analysis of the exception of no cause of action:

“The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition. The correctness of the well-pleaded allegations of fact is conceded, the issue is whether the face of the petition presents a case which legally entitles the mover to the redress sought. It is the sufficiency of the petition or motion in law which is put at issue by the exception. Rebman v. Reed, 286 So.2d 341 (La.1973); Louisiana State Board of Medical Examiners v. England, 252 La. 1000, 215 So.2d 640 (1968).
If a petition states a cause of action as to any ground or portion of the demand, the exception of no cause of action must be overruled. Louisiana & Arkansas Railway Company v. Goslin, 258 La. 530, 246 So.2d 852 (1971); Burns v. Genovese, 254 La. 237, 223 So.2d 160 (1969); Little v. Haik, 246 La. 121, 163 So.2d 558 (1964); Elliott v. Dupuy, 242 La. 173, 135 So.2d 54 (1961); United Mine Workers v. Arkansas Oak Flooring Co., 238 La. 108, 113 So.2d 899 (1959).
In considering a petition against which an exception of no cause of action has been raised, every reasonable interpretation must be accorded its language in favor of maintaining the sufficiency of the petition and affording the litigant an opportunity to present- his evidence. Eschete v. City of New Orleans, 258 La. 133, 245 So.2d 383 (1971); Erath Sugar Co. v. Broussard, 240 La. 949, 125 So.2d 776 (1961). Pleadings must be reasonably construed so as to afford litigants their day in court, to arrive at the truth and to avoid a miscarriage of justice. Budget Plan of Baton Rouge, Inc. v. Talbert, 276 So.2d 297 (La.1973).”

On the part of Chalin Perez, who alone has a right of action under article 680, the petition for recusation alleges that the district attorney has a disqualifying personal interest in the cause and is employing the current investigation as a means of gratifying his personal animosity against his brother. In determining the legal sufficiency of the petition, we must concede the correctness of this allegation. Hero Lands Co. v. Texaco, supra. The questions before us are whether, under article 680(2), Leander Perez, Jr. is related to Chalin O. Perez to such an extent that the relationship may appreciably influence him in the performance of the duties of his office, and the more difficult question — whether the provision for re-cusation may be interpreted to apply to an investigation as well as to a prosecution.

With regard to the first issue, we note that the relationship between brothers is a relationship of the second degree while, up until the drafting of article 680’s more general language on this point, recusation was mandatory when parties were related within the fourth degree. We also note that an allegation of personal animosity, even in the absence of a blood relationship between the parties, was found to be sufficient ground for a hearing on a motion for recusation in State v. Marcotte, 229 La. 539, 86 So.2d 186 (1956). Similarly, in State v. Snyder, 256 La. 601, 237 So.2d 392 (1970), this court held that the trial court erred in denying a motion for recusation of a district attorney who admitted previous strong personal animosity toward the defendant but testified that this feeling had dissipated by the time he acted as advisor to the grand jury which indicted the defendant. The court observed that “. . . where such deep-seated hatred has once evinced itself, the district attorney might, even though unconsciously, have impaired his power to conduct relator’s trial fairly and impartially.” 256 La. at 610, 237 So.2d at 395.

The “personal interest” of the district attorney arises, according to the petition, from Chauppette’s theft of Plaquemines Parish Commission Council funds in excess of $200,000. An employee of the council, Chauppette is said to have forged checks on the council’s account with the Delta Bank and Trust company. The thefts are said to have been of such magnitude that they could only have been accomplished with the cooperation of officers or employees of the bank, either intentionally or through gross negligence. The district attorney, Leander Perez, Jr., is chairman of the board of directors of the Delta Bank, and a major stockholder. In addition to his alleged personal interest in avoiding the possibility of financial loss or even personal blame or responsibility for the loss of parish funds in the Chauppette thefts, the petition alleges a second form of personal interest: that the district attorney is actively opposing efforts of his brother to form a new bank in the parish to handle the six or eight million dollars of parish funds now deposited annually in the Delta Bank.

The special grand jury, says plaintiff, directed toward an inquiry into the misuse of parish property by the council and those associated with it, is designed to divert public attention away from Chauppette’s theft and toward council misconduct.

Plaintiff Chalin Perez believes he is the object of an effort by his brother to “destroy” him because of the personal animus and the economic and political threat to the district attorney’s future.

If plaintiff is charged with a crime, kinship alone will require the recusal of the district attorney, as defendant readily admits. C.Cr.P. 680. Plaintiff has not been charged, arrested, subpoenaed or questioned. Article 680 refers to the matters from which the district attorney may be recused as: the “cause” (C.Cr.P. 680(1)), the “case” (C.Cr.P. 680(3)); or a matter in which there is an “accused” (C.Cr.P. 680(2)). Here there is no “accused” and no “case.” If there is a “cause,” it is the investigation described by plaintiff. Plaintiff, however, describes no particular offense for which he fears a bad faith prosecution. What he seeks protection from is an investigation to discover some offense for which the plaintiff might be prosecuted.

Recusal cases before, in this state, have all dealt with identifiable cases in which the one moving to recuse has been accused of a crime. Article 680 can be construed, in its second paragraph, to apply to a criminal matter in only one situation in which there is not yet an accused: article 680(2) requires the district attorney to be recused when he is related to the party injured.

Plaintiff seeks to recuse the district attorney, in the words of the petition, from the “criminal investigation of the Chaup-pette theft and the criminal investigation of the Parish Commission Council and Chalin O. Perez.” The Chauppette theft is both a “case” and a “cause.” It consists of identifiable criminal conduct and has resulted in accusation of crime. But Chalin Perez, the remaining plaintiff, has shown no reason to recuse the district attorney in the Chau-pette case. Chaupette does not complain. If plaintiff fears the district attorney will not properly, fairly or vigorously prosecute Chauppette, the remedy is not recusal, which is a disqualification from acting. The failure to act, and to act properly may be “cause” for intervention by the attorney general (Article 4, § 8, La.Const.1974), but not grounds for recusal.

If there is no “case,” no “cause,” no “accused” and no “party injured,” does article 680 require the court to recuse the district attorney from the “criminal investigation of . his brother and mortal enemy”?

The words chosen by the redactors of C.Cr.P. 680, we must assume, were not employed without careful consideration of their effect. It would have been simple to limit recusal to pending criminal prosecutions if the legislators had intended. It would likewise have been simple to extend to criminal investigations the right to re-cuse the district attorney.

The “case,” “cause” and matters where there are parties “accused” or “injured” have a common provenance; they arise from conduct which might be criminal. Murder, robbery, battery or unlawful conduct of any nature are causes which can be identified, significant events or occurrences which have substance and limits. The legislators probably intended that a district attorney should not investigate his brother for a murder or a theft which has occurred. No practical uncertainties would complicate the recusal of a district attorney with a real and personal interest in a particular theft when the recusal is sought by one under investigation. But how different it is to demand that the district attorney be removed from any criminal investigation of the plaintiff because the district attorney hates him!

Different values affect society’s interest in a prosecution and in an investigation. The state may not go to any lengths to discover criminal conduct, but its interest in an ordered society will justify active, efficient, prompt, thorough criminal investigations. An investigator’s zealous activity may serve society’s interest, but a prosecutor’s zeal might not. A fair and impartial trial, not a fair and impartial investigation, is our constitutional guarantee. The protection against an unfair investigation is a fair trial where illegally obtained evidence will be excluded, not a recusal of the investigator.

Of course a prosecutor is not free to harass the object of his investigation— brother or not. No harassment is here alleged — only the fear that, motivated by hatred, the district attorney is investigating his brother (in the hope of bringing a criminal action, from which he will be recused). The freedom from investigation by one who hates the investigated is a condition to be hoped for, but not a right granted by statute, Constitution or jurisprudence.

We find, therefore, that the petition states no cause of action for the recusal of the defendant district attorney.

Exception of No Cause of Action (Injunction)

Plaintiffs’ petition also seeks an order enjoining the district attorney, his assistant, agents and employees from taking any action and from exercising any of their powers in connection with the investigations of Chauppette and the council. The petition alleges that plaintiffs have no adequate remedy at law to secure themselves against the injury, loss and damage inflicted by the district attorney’s wrongful conduct, and that the district attorney’s continued use of his powers to gratify his personal animosity and to protect his financial interest will result in irreparable injury to the impartial administration of justice.

Injunctive relief is provided for by C.C.P. 3601, which states that “[a]n injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law . . . ” The irreparable injury must be one for which there is no adequate remedy at law. Greenberg v. DeSalvo, 254 La. 1019, 229 So.2d 83 (1969). An irreparable injury has been defined as “one for which the party injured cannot be compensated adequately in damages, or for which the damages cannot be measured by a pecuniary standard.” City of Lake Charles v. Lake Charles Ry., 144 La. 217, 221, 80 So. 260, 261 (1918). In O’Beirne v. Police Jury, 153 La. 357, 95 So. 862 (1923), this court held that irreparable injury will also be found if the act to be enjoined is contrary to public policy.

Because an injunction constitutes a form of active judicial interference with continuing activities, the courts have been very reluctant to grant such a remedy where the actions complained of are those of departments of the executive and legislative branches of government, in the exercise of their authority. In Durrett Hardware & Furniture Co. v. City of Monroe, 199 La. 329, 340, 5 So.2d 911, 915 (1942), this court noted:

“Under our system of government providing for a distribution of powers between the legislative, executive and judicial departments, it is of vital importance that no one department unduly interfere with or hinder any other department while the latter is acting or assuming to act within the scope of the particular powers reserved to it. . ”

In Durrett this court found that, under Louisiana law, a municipality may be enjoined from passing an ordinance only when the threatened action is in direct violation of a prohibitory law. If this showing cannot be made, injunctive relief is available only after the law has been enacted and a complainant is threatened with irreparable harm by its enforcement.

Where a law or ordinance contains criminal sanctions, the showing required for in-junctive relief against its enforcement is even more exacting. In this situation, the plaintiff must show not only that the statute or ordinance is manifestly unconstitutional and that he is threatened with irreparable injury, but also that his existing property rights will be destroyed by enforcement. Dobbins v. Los Angeles, 195 U.S. 223, 25 S.Ct. 18, 49 L.Ed. 169 (1904); La-Bauve v. Louisiana Wildlife & Fisheries Commission, 289 So.2d 150 (La.1974), New Orleans Baseball & Amusement Co. v. City of New Orleans, 118 La. 228, 42 So. 784 (1907). Where these criteria cannot be met, injunctive relief is not available; the injured party’s proper recourse against prosecution under an allegedly invalid law is to move to quash the bill on the ground that the offense charged is not punishable under a valid statute. C.Cr.P. 532.

In the instant petition, plaintiffs ask the court to interfere even more drastically with the law enforcement activities of the executive branch of government: what they seek to enjoin is not a threatened prosecution, but the investigative process itself. The investigatory authority of the district attorney is subsumed under his power to take charge of every criminal prosecution in his district and to represent the state before the grand jury and act as legal advisor to the grand jury. Constitution Article 5, § 26(B); R.S. 16.1; C.Cr.P. 61. In petitioning the court to bar the exercise of this constitutional and statutory authority, plaintiffs do not claim that they are threatened by the enforcement of an invalid statute, or that their existing property rights will be destroyed; they allege that the district attorney’s investigatory activities will result in irreparable injury to the impartial administration of justice.

It appears that the only attempts heretofore made in this state to enjoin investigatory activities have been directed against various regulatory commissions and agencies, not against the law enforcement branch of the government. Even in those cases, injunctive relief is available only when irreparable injury is threatened by agency actions which are ultra vires, exceeding the agency’s statutory authority. Good v. Louisiana Commission on Governmental Ethics, 370 So.2d 123 (La.App. 1st Cir. 1979), rehearing den. 1979, writ refused 1979; Louisiana Milk Commission v. Louisiana Commission on Governmental Ethics, 298 So.2d 285 (La.App. 1st Cir. 1974); Waters v. Karst, 235 So.2d 222 (La.App. 3d Cir. 1970). In the case before us, on the other hand, the district attorney’s investigative activities are clearly within his constitutional and statutory authority, and they involve the enforcement of criminal laws.

A review of other states’ jurisprudence reveals only one instance in which a criminal proceeding was enjoined during the investigatory stage, before any specific prosecution was threatened; this is, in itself, some indication of the drastic nature of the remedy which plaintiffs here are seeking. In McNair’s Petition, 324 Pa. 48, 187 A. 498 (1936), writs of prohibition and mandamus were issued against a lower court judge, a district attorney and a grand jury, ordering that they cease an investigation of city magistrates. That holding was based, however, on the fact that Pennsylvania law imposed specific limitations on a trial court’s authority to charge a grand jury to investigate and on a grand jury’s investigatory powers. Because these limitations were exceeded, the investigative activities were conducted without authority. See Powell v. Pappagianis, 108 N.H. 523, 238 A.2d 733 (1968), in which a New Hampshire court, in dismissing a petition to enjoin the attorney general from an investigation, found that the holding of McNair’s Petition was inapplicable because New Hampshire law contained no such limitations on investigatory powers. It should be noted that in Louisiana the grand jury’s powers are not restricted by law, and that the grand jury itself has the power to open an investigation of any criminal matter. C.Cr.P. 437; Comment, Selected Problems of the Louisiana Grand Jury, 52 Tul.L.Rev. 707, 733 (1978).

In another case, Cutsinger v. Atlanta, 142 Ga. 555, 83 S.E. 263 (1914), the trial court dismissed plaintiff’s petition to enjoin a city, its chief of police and other officials from prosecuting her under an ordinance discriminatorily applied, and from interfering with her business by repeated intrusive inspections of her premises. In reinstating the petition, the Georgia Supreme Court stated that injunctive relief is available where irreparable damage results from the arbitrary or capricious abuse of power. Because we agree with this proposition, we are of the opinion that an injunction against an existing investigation would be appropriate in some circumstances. In identifying those circumstances, we must balance the interest of the state and its citizens in uncovering and prosecuting conduct which has been defined as criminal by the people’s legislative representatives, against the individual’s interest in freedom from the abuse of power, even when that power is at least nominally within statutory grants of authority.

In so doing, we find relevant the standards employed in those few decisions of the federal courts which have granted in-junctive relief against threatened state prosecutions. Those decisions similarly require balancing the individual’s interest in freedom from the abuse of power against a strong conflicting policy, that of federal non-intervention in state court criminal proceedings. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), was decided before the principle of federal nonintervention in pending state criminal prosecutions was fully enunciated, and it involved the chilling effect of vague and overbroad statutes upon plaintiffs’ highly protected First Amendment rights to freedom of expression. In finding that the district court had erred in dismissing plaintiffs’ petition for declaratory and injunctive relief for failure to state a claim upon which relief can be granted, the United States Supreme Court noted that plaintiffs had attacked the good faith of various governmental officials who were acting to enforce certain statutes without any hope of ultimate success, but only to discourage plaintiffs’ activities by continuing harassment. In Shaw v. Garrison, 467 F.2d 113 (C.C.A. 5 1972), cert. den. 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972), a case decided after the full formulation of the non-intervention principle and one not involving First Amendment rights, the United States Fifth Circuit Court of Appeals held that a showing of bad faith or harassment was equivalent to a showing of irreparable injury, for purposes of the non-intervention doctrine, because there was a federal right to be free of bad faith prosecutions. In denying an injunction against threatened arrest in Holmes v. Giarrusso, 319 F.Supp. 832 (E.D.La.1970), because of the absence of a showing that the arrest would be made in bad faith, the court defined a bad faith arrest as one made with no expectation of conviction but merely to discourage the exercise of protected rights. Similarly, in Scott v. Frey, 330 F.Supp. 365 (E.D.La.1971), the court found that federal injunctive relief against threatened prosecution was available only upon a showing of irreparable injury based on bad faith prosecution or proven harassment.

We conclude, then, that a plaintiff who seeks to enjoin a criminal investigation must show, at a minimum, that he is threatened with irreparable injury in the form of prosecutorial bad faith or harassment, such as particularly oppressive investigations without any prospect of ultimate indictment and conviction. He must also show, of course, that the irreparable injury is one for which there is no adequate remedy at law. Plaintiffs’ petition, in the light of this minimum standard, falls short of making the necessary showing. The petition alleges that the district attorney’s investigatory activities are motivated by personal animosity and by a personal desire to protect his own financial interests. Such bad motives are a part, but not sufficient to constitute, by themselves, the kind of “bad faith” which would overcome the force of the strong public interest in identifying and prosecuting wrongdoers. The proof of the allegations of this petition would not justify a conclusion that the investigation of the theft by Chauppette and the investigation of the parish council and its members and employees is unnecessarily abusive, harassing or illegal, and without any possibility of ultimate indictment supported by probable cause for prosecution.

There appear to be adequate protections from some of the consequences of this investigation which plaintiffs fear. If, as plaintiffs allege, parish governmental activities are being disrupted by the issuance of unreasonable and oppressive subpoenas, the court has the power to vacate or modify these subpoenas under C.Cr.P. 732 and 439. If, as plaintiffs also allege, the district attorney’s activities are causing the undue waste of public funds and are injuring the impartial administration of justice, the parish electorate may petition the governor for a recall election under Constitution Article 10, § 26 and R.S. 42:341 et seq.

Plaintiff Chalin Perez’s fear of damage to his reputation by a criminal investigation, however real, is common to all citizens whose conduct falls under the scrutiny of a prosecutor or grand jury. “No person is immune from prosecution in good faith for his alleged criminal acts.” Douglas v. City of Jeannette, 319 U.S. 157, 163, 63 S.Ct. 877, 881, 87 L.Ed. 1324, 1329 (1943). Nor is any person immune from a criminal investigation. The remedy is a fair trial, if the investigation discovers good cause for prosecution. Protection by injunction against a criminal investigation is not available in the absence of a showing of irreparable injury from prosecutorial bad faith, such as illegal, harassing or oppressive investigations without any prospect of ultimate indictment and conviction.

Plaintiffs’ petition for an injunction against further investigation therefore fails to state a cause of action.

For these reasons, the judgment overruling defendant’s exception of no cause of action is reversed, and the exception is sustained; plaintiffs’ suit is dismissed, at plaintiffs’ cost.

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

WATSON, J., dissents for the reasons assigned by MARCUS and DENNIS, JJ.

DENNIS, Justice,

dissenting.

I respectfully dissent from the majority holding and decree that the petition of Cha-lin Perez fails to allege grounds for recusation of the district attorney.

Chalin Perez alleged that the district attorney, his brother Leander Perez, Jr., should be recused as representative of the state before the grand jury during its investigation of him because (1) The district attorney has a personal interest in the cause which is in conflict with fair and impartial administration of justice, viz., the district attorney’s personal hatred for his brother and his desire to prevent his brother from forming a new bank in competition with one in which the district attorney is a principal stockholder and serves as chairman of the board of directors; and (2) The district attorney’s relationship to his brother combined with his intense feelings of hatred and rivalry for him may appreciably influence him in the performance of the duties of his office.

The majority correctly acknowledges that the allegations would state grounds for the district attorney’s recusation if an indictment or bill of information had been filed against Chalin Perez. La.C.Cr.P. art. 680; State v. Snyder, 256 La. 601, 237 So.2d 392 (1970); State v. Marcotte, 229 La. 539, 86 So.2d 186 (1956). The prosecution argues, however, that the motion to recuse is premature until an indictment has been found. The majority opinion rejects this argument with respect to grand jury investigations of known crimes, but holds, without explaining the distinction, that a prosecutor with a personal interest or bias may not be recused so long as the grand jury investigation remains a general inquiry and has not focused on a particular offense.

The majority opinion reaches its result, ignoring petitioner Chalin Perez’s rights to due process of law and fair and impartial administration of justice, by seizing upon an extremely narrow interpretation of our statutes. Its basic flaw is its failure to recognize that a grand jury investigation is a judicial proceeding in which a person may be deprived of his liberty and have his rights seriously affected. The distinction drawn by the majority affording a citizen no protection against a general fishing expedition, while allowing him to have a biased prosecutor recused from a focused investigation, has no foundation in constitutional or statutory law. Moreover, the majority misreads the legislative intent by refusing to consider a grand jury investigation to be a “cause” in which the district attorney may have a personal interest, and by refusing to construe the term “accused” to include a person under investigation by a grand jury. In my view, the majority opinion is mistaken in both its constitutional and statutory constructions.

The constitutions of our nation and state guarantee that no person shall be deprived of liberty except by due process of law. When a grand jury finds an indictment, a person not in custody or at large on bail must be arrested. La.C.Cr.P. art. 496. A person under indictment is formally accused of a crime, causing him to defend against the awesome prosecutorial power of the government and, oftentimes, the social stigma perceived by his peers. Consequently, a citizen under grand jury investigation faces deprivation of liberty and serious effects upon his rights and therefore is entitled to the protection of due process of law and fair and impartial administration of justice.

As the lone professional in a judicial proceeding otherwise conducted by laymen and as a high governmental official, the prosecutor has great influence with the grand jury throughout its hearings. Although the grand jury is in theory a check on prosecu-torial discretion, in reality the jurors do not often assume their protective function, and a prosecutor can virtually obtain an indictment at will. See, e. g., Comment, The Grand Jury: Powers, Procedures, and Problems, 9 Col.J., L & Soc.P., 681, 701 (1973); Campbell, Delays in Criminal Cases, 55 F.R.D. 229 (1972). It is evident, therefore, that due process of law and fair administration of justice cannot permit a grand jury proceeding to be led by a prosecutor who is under the influence of either sibling hatred or hope of personal gain.

The majority correctly points out that there is no case on all fours with this one. But there are many canons, cases and laws which indicate that due process should afford an individual recourse from a demonstrably unfair grand jury proceeding.

The Code of Professional Responsibility, a set of rules adopted by this Court, having the force and effect of substantive law, see Singer, Hutner, Levine, Seeman & Stuart v. Louisiana State Bar Association, 378 So.2d 423 (La.1979), Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1979), provides that “[t]he responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict.” EC 7-13. Furthermore, every attorney must refrain from accepting employment, except with the consent of his client after full disclosure, if “the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.” DR 5-101. Accordingly, it is plainly unfair and unprofessional for a district attorney to continue representation of the state in a grand jury proceeding if his personal interest or relation to an investigated party conflicts with fair and impartial administration of justice.

Even courts in states which apparently have no prosecutor recusation statutes have fashioned remedies for skewed grand jury proceedings. They provide relief by holding that presentation of evidence before a grand jury by a prosecutor with a personal interest in prosecution to be ground for quashing an indictment. See Corbin v. Broadman, 6 Ariz.App. 436, 433 P.2d 289 (1967); State v. Rocker, 130 Iowa 239, 106 N.W. 645 (1906); see generally, Prosecutor, Disqualification, 31 A.L.R.3d 953.

The redactors of our code of criminal procedure have indicated that courts should construe broadly the legislation designed to maintain the right of every litigant to an impartial and disinterested tribunal. In determining whether a district attorney who has a personal interest in a grand jury investigation has “a personal interest in the cause ... in conflict with fair and impartial administration of justice,” courts should turn first to the Official Revision Comment under Article 671, which provides comparable grounds for the recusation of judges. According to the redactors, the words “cause” and “case” are advisedly used in Title XXII, “Recusation of Judges and District Attorneys.” La.C.Cr.P. art. 671, Official Revision Comment. While the word “case” is limited to “the particular criminal prosecution at bar,” “[t]he broader word ‘cause’ embraces the entire situation, in both its civil and criminal implications.” Id. Thus, in deciding whether Chalin Perez has fairly alleged that the district attorney has a “personal interest in the cause,” this Court should not apply a niggardly construction. On the contrary, its clear duty under the statute and the constitution is to determine, after considering the “entire situation,” whether the prosecutor’s personal interest is in conflict with fair and impartial administration of justice.

This Court itself has held that a “cause” arises in a criminal case for purposes of recusation before issue is joined between the state and defendant. In State ex rel Martin v. Judge, 152 La. 768, 94 So. 389 (1922) this Gourt ordered a district judge, who was alleged to have been personally and politically interested in the relator’s prosecution, either to recuse himself from presiding over a preliminary examination or appoint a judge of an adjoining district to determine whether he should be recused. Although the court recognized that a conviction could not be had on the charge, which was under affidavit, it reasoned that “[nonetheless it is a proceeding in which the liberty of the accused depends . The judge is called upon, therefore, to exercise his judicial powers and discretion by virtue of his office, in a manner which may affect seriously the rights of the accused.” 94 So. pp. 390, 391.

The district attorney as the representative of the state before the grand jury is, like the judge in other proceedings, required to promote the fair and impartial administration of justice. The exercise of his discretion and the powers of his office also may affect seriously the rights and liberty of individuals. Surely, if Leander Perez, Jr. were the judge assigned to charge the grand jury and select its foreman, see La.C.Cr.P. arts. 413, 432, this Court would consider the allegations of the petition sufficient to warrant a hearing to determine if he should be recused because he was “personally interested in the cause.” La.C.Cr.P. art. 671. In my opinion, it is even more crucial to the fair and impartial administration of justice that a prosecutor, alleged to be biased, not be allowed, without at least a hearing on the question, to represent the state before the grand jury and be its legal advisor, see La.C.Cr.P. art. 64, because he is the only professional and public official who may be present at the jury’s sessions, see La.C.Cr.P. art. 433, examine witnesses before it, see La.C.Cr.P. art. 64, and present evidence to it. See La.C.Cr.P. art. 439. The prosecutor’s influence with the grand jury is infinitely greater than that of the district judge.

Since in my opinion Chalin Perez alleges grounds for recusing the district attorney and his petition states a cause of action, I would not reach the question of injunctive relief. However, the majority’s disposition of the injunction issue puts a troublesome gloss on the definition of “irreparable injury” which should not be approved.

The majority holds that Chalin Perez cannot enjoin the district attorney’s investigation because he has shown no “bad faith or harassment.” By requiring bad faith or harassment, the court has imparted a federal concept to Louisiana law. It is true that the federal courts will not enjoin pending state prosecutions absent a showing of bad faith or harassment, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), but this rule is not necessarily applicable in state courts. A federal court is restrained from interfering with a pending state prosecution on the principle that federal intrusion into the right of a state to enforce its own laws in its own courts is unwarranted except in exceptional circumstances. Wright, The Law of Federal Courts, § 52A (3d ed. 1976). Since the underpinning of the requirement that the petition for an injunction of a pending state prosecution must show bad faith or harassment is that a state court is competent to handle its own affairs, it is improper for this Court to utilize this federal rule in outlining the powers of a state trial court to enjoin a prosecution by a state district attorney. Indeed, by imposing the federal strictures on our courts, we deny a citizen the very relief the federal courts consider the province of the state courts.

I concur in the remaining portions of the majority opinion.

Accordingly, I respectfully dissent from the majority’s decree and the portions of the majority opinion pertaining to the exception of no cause of action (recusal) and the exception of no cause of action (injunction).

MARCUS, Justice

(dissenting).

La.Code Crim.P. art. 680 provides that a district attorney shall be recused when he has a personal interest in the “cause” which is in conflict with fair and impartial administration of justice. I consider that plaintiffs herein have sufficiently stated a cause and right of action to entitle them to a hearing to determine whether the district attorney should be recused in this “cause.” Accordingly, I respectfully dissent.

      . In October, 1979, the plaintiffs petitioned the Twenty-Fifth Judicial District Court to enjoin the district attorney from taking any further action in connection with the Chauppette theft and with the investigation of the council, its employees and officials, and to recuse the district attorney. A few days thereafter, both judges of the Twenty-Fifth Judicial District requested that this court recuse them from acting in the matter of plaintiffs’ petition, and plaintiffs filed motions with this court seeking both the appointment of a judge to hear their petition and the issuance of a stay order against further investigation by the district attorney. On October 16, No. 65891, this court granted the judges’ motion to be recused and appointed Honorable Julian E. Bailes as judge ad hoc, but denied the stay order. The following day, Judge Bailes issued a temporary restraining order against the district attorney, who immediately petitioned both this court and the Fourth Circuit Court of Appeal to dissolve that order. On October 19, both courts ordered that the temporary restraining order be dissolved. On October 24, Judge Bailes heard argument on the defendant’s exception of prematurity to plaintiffs’ motion for recusation. In that exception, the district attorney contended that an action to recuse him could not properly be brought until an indictment was returned or a bill of information was filed in the case. The exception of prematurity was maintained, plaintiffs applied to this court for supervisory writs, and on November 1, No. 65972, this court overruled the trial court and remanded the case for further hearings on plaintiffs’ motion for recusation. At a hearing held pursuant to that order, the trial court denied defendant’s plea of unconstitutionality and overruled his exceptions of lack of subject matter jurisdiction and no right or cause of action. We granted supervisory writs to review these rulings.

      . These states were California, Indiana, Illinois, Minnesota, Missouri, New Jersey, New York, Pennsylvania, Washington and Wisconsin.

      . The United States Supreme Court has similarly defined the public prosecutor’s role. In Gannett Co. v. DePasquale, - U.S. -, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), it stated: “The Court has recognized that a prosecutor ‘is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a particular and very definite sense the servant of the law . . . ’ Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314. . . . ” - U.S. at -, 99 S.Ct. at 2908, 61 L.Ed.2d at 624.

      . Article 5, § 34 provides in pertinent part: “(A) Grand Jury. There shall be a grand jury or grand juries in each parish, whose qualifications, duties, and responsibilities shall be provided by law. The secrecy of the proceedings, including the identity of witnesses, shall be provided by law.”

      . C.Cr.P. 434 provides in pertinent part:
      “A. Members of the grand jury, all other persons present at a grand jury meeting, and all persons having confidential access to information concerning grand jury proceedings, shall keep secret the testimony of witnesses and all other matters occurring at, or directly connected with, a meeting of the grand jury. However, after the indictment, such persons may reveal statutory irregularities in grand jury proceedings to defense counsel, the attorney general, the district attorney, or the court, and may testify concerning them. Such persons may disclose testimony given before the grand jury, at any time when permitted by the court, to show that a witness committed perjury in his testimony before the grand jury. A witness may discuss his testimony given before the grand jury with counsel for a person under investigation or indicted, with the attorney general or the district attorney, or with the court.” A violation of this provision is punishable as constructive contempt of court.

      . Our research has revealed some instances in which the courts of other jurisdictions have held that a prosecuting attorney should have been disqualified before the inception of the criminal trial itself. However, these cases seem to deal with a stage in the proceedings at which a “case” existed against the accused, in terms of his specific illegal conduct, and not with a purely investigative stage, the context of the petition before us here. Corbin v. Broadman, 6 Ariz.App. 436, 433 P.2d 289 (1967), review denied 1968, affirmed the quashing of an indictment returned after a grand jury investigation occasioned by the collapse of a title company. The prosecuting attorney before the grand jury had briefly worked in the law office of one of the defendants, at a time when two of the other defendants were clients of that firm. Although Arizona had no statutory provision for disqualification of a prosecuting attorney, the court found that disqualification on the ground of conflicting interests was mandated by the American Bar Association Canons of Professional Ethics, the Arizona State Bar Committee Opinions on Rules of Professional Conduct, and the due process and equal protection clauses of the state and federal constitutions. The court reasoned that, because the prosecutor should have been disqualified, his presence at the grand jury sessions violated the statute authorizing only specified persons to be present at such sessions, and that this violation was a sufficient ground for quashing the indictment. One of the bases for the court’s decision was its reading of the United States Supreme Court’s opinion in Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962) as holding that due process guarantees are applicable to grand jury proceedings; actually, however, the Beck court specifically declined to reach that issue.
      In Ganger v. Peyton, 379 F.2d 709 (C.C.A. 4 1967), an attorney representing defendant’s wife in a pending divorce action also acted as prosecutor in state court proceedings which resulted in defendant’s conviction and sentence on a charge of assaulting his wife. Finding that the requirement of fundamental fairness assured by the due process clause of the Fourteenth Amendment had been violated by this conflict of interests, the Circuit Court of Appeals affirmed the district court in vacating the sentence on a writ of habeas corpus. See also State v. Rocker, 130 Iowa 239, 106 N.W. 645 (1906), quashing an indictment because the prosecuting attorney may have used information obtained while acting as counsel for the defendant, at that time plaintiff in a civil action, in examining witnesses before the grand jury and advising the grand jury; State v. Detroit Motors, 62 N.J.Super. 386, 162 A.2d 227 (1960), quashing an indictment on similar facts; Steeley v. State, 17 Okl.Cr. 252, 187 P. 821 (1920), quashing an information because the prosecuting attorney had previously made a brief appearance as substitute counsel for defendant; State v. Jones, 306 Mo. 437, 268 S.W. 83 (Mo. 1924), quashing an information because the prosecuting attorney was an interested party and finding that such a conflict of interests constituted a violation of due process. For a discussion of the potential for abuse by a district attorney of his grand jury powers, see Comment, Selected Problems of the Louisiana Grand Jury, 52 Tul.L.Rev. 707, 735 (1978), and Johnston, The Grand Jury — Prosecutorial Abuse of The Indictment Process, 65 J.Crim.Law and Criminology 157 (1974).

      . The Code of Practice of 1870, precursor of the current Code of Civil Procedure, provided ten specific grounds for the mandatory issuance of injunctions in article 298. Article 303 provided for the discretionary issuance of injunctions, most significantly “when it is necessary to preserve the property in dispute during the pend-ency of the action, and to prevent one of the parties, during the continuance of the suit, from dilapidating the same, or from doing some other act injurious to the other party.” The “irreparable injury, loss or damage" language of C.C.P. 3601 appeared in the Code of Practice as a prerequisite to the granting of a temporary restraining order, in article 297.2, while article 307 provided that an injunction might be dissolved if the act enjoined would not work an irreparable injury to the plaintiff. The Official Revision Comments to C.C.P. 3601 note that this article adopts the equitable rule established by article 303 of the Code of Practice.

      . In so holding, the Durrett court cited New Orleans Water Works Co. v. City of New Orleans, 164 U.S. 471, 17 S.Ct. 161, 41 L.Ed. 518 (1895), in which the United States Supreme Court held, more broadly, that a city should not be enjoined from enacting an ordinance, and that the proper remedy for one alleging irreparable injury caused by an unconstitutional ordinance would be an injunction against its execution.

      . The United States Supreme Court has found that, because no member of the community is immune from good faith prosecution for his alleged criminal acts, criminal prosecutions may not ordinarily be enjoined; the legality of the statute or ordinance on which the prosecution is based should properly be tested in defending the prosecution. Beal v. Missouri Pacific R. Corp., 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577 (1940), Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). Similarly, this court stated in West v. Town of Winnsboro, 252 La. 605, 612, 211 So.2d 665, 668 (La.1968):
      “The assailed ordinance is a regulatory measure, enforceable by a penalty provision including fine and imprisonment. It is, therefore, criminal in nature. Thus the equity arm of civil courts have no jurisdiction to prevent the enforcement of such ordinances by injunction. LeBlanc v. City of New Orleans, 138 La. 243, 70 So. 212 (1915). The enforcement of criminal laws belongs within the exclusive province of those tribunals created for that purpose. . . ”

      . Most of the cases of this nature which have been considered by the United States Supreme Court since 1965 have involved allegations of interference with the highly protected First Amendment right to freedom of speech. Lay-cock, Federal Interference with State Prosecutions: The Need for Prospective Relief, 1977 S.Ct.Rev. 193, 207.

      . The doctrine of non-intervention is based on principles of federalism and comity. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Huffman v. Pursue, 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). The doctrine is codified in 28 U.S.C. § 2283, which provides:
      “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”

      . In 1971, in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and its companion cases, the United States Supreme Court held that the possible unconstitutionality of a statute on its face would not justify a federal injunction against a pending state court prosecution, absent a showing of bad faith, harassment or any other unusual circumstances calling for equitable relief.

      . In Dombrowski, plaintiffs and intervenors had been arrested, their offices raided, and their records seized. Although the arrest warrants were subsequently quashed for lack of probable cause and the evidence seized was suppressed as the product of an illegal search and seizure, a grand jury summoned to investigate these parties returned indictments against them.

      .Shaw, charged with conspiracy to assassinate President Kennedy, was acquitted after less than an hour of jury deliberation. On the next working day following the verdict of acquittal, he was charged by the district attorney with having committed perjury at the conspiracy trial.


author: WATSON, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Gary JEFFERSON.
    No. 65379.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    Rehearings Denied March 3, 1980.

      Robert Barnard, New Orleans, Orleans Indigent Defender Program, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   WATSON, Justice.

Defendant, Gary Jefferson, was charged with armed robbery in violation of LSA-R.S. 14:64. The defendant initially pled not guilty; but, at trial, entered pleas of not guilty and not guilty by reason of insanity. A twelve member jury returned a verdict of guilty. Defendant was billed as a multiple offender and sentenced to 198 years at hard labor without benefit of parole, probation, or suspension of sentence. LSA-R.S. 15:529.1.

On appeal, defendant relies on two assignments of error. The first relates to the court’s charge to the jury concerning disposition after a verdict of not guilty by reason of insanity. The second involves the sentence as an habitual offender.

After the jury had retired for deliberation, it requested further instructions. The jury asked what would happen to defendant if he were found not guilty by reason of insanity. The trial judge read the relevant code articles (LSA-C.Cr.P. arts. 654, 655 and 656). In response to a juror’s question concerning medical help available in prison, the judge stated that if defendant were found guilty and sentenced to a prison term, he “would get all the medical help he needs”. (Tr. 88) Defense counsel asked what would happen, as a practical matter, if defendant were confined in Jackson Mental Hospital. The judge paraphrased LSA-C.Cr.P. art. 655, concluding with the statement that defendant could file an application to be re-evaluated for release “every six months”. (Tr. 91) After the jury retired to deliberate, defense counsel made a general objection to the court’s charge stating:

“Your Honor, I’m not so much concerned with your reading them the law as your answer to some of the other questions, which may have tendered (sic) to lead the jury in a direction that is adverse to the defendant.” (Tr. 91)

After the verdict, the State filed a bill of information charging the accused as a triple offender. Defendant, in open court through counsel, admitted the allegations in the multiple bill, was adjudged a multiple offender, and sentenced to a maximum sentence of 198 years.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant complains that the trial court erred when it gave additional instructions about the law pertaining to a verdict of not guilty by reason of insanity, and misled the jury in regard to the mental treatment given in prison. In brief, counsel argues that the statement that defendant would get all necessary medical help in prison, and the suggestion of endless litigation resulting from a verdict of not guilty by reason of insanity were intended to coerce the jury into a verdict of guilty.

These objections are not properly before this Court as defendant did not object to the statements at the time they were made. An objection to the court’s charge after the jury has retired is untimely. State v. Williams, 366 So.2d 1365 (La., 1978); State v. Beard, 312 So.2d 278 (La., 1975); LSA-C.Cr.P. art. 841. The purpose of the contemporaneous objection rule is illustrated here, where a timely objection would have allowed curing of the alleged defect.

Further, the objections are without merit. In State v. Babin, 319 So.2d 367 (La., 1975), it was held that instructions explaining the consequences of a verdict of not guilty by reason of insanity must be given if requested by defendant or by the jurors. LSA-C.Cr.P. art. 803. Babin has been followed in subsequent decisions. See, for example: State v. Gurley, 376 So.2d 110 (La., 1979); and, State v. Liesk, 326 So.2d 871 (La., 1976). In State v. Watkins, 340 So.2d 235 (La., 1976) it was held that the relevant articles need not be read in their entirety and can be paraphrased by the trial court.

It is established that particular expressions in a jury charge must be considered in the context of the entire charge. State v. Williams, 366 So.2d 1365 (La., 1978); State v. George, 346 So.2d 694 (La., 1977). There was no refusal here to give requested instructions. The judge made a conscientious effort to comply with State v. Babin, supra, by reading the text of LSA-C.Cr.P. arts. 654, 655, and 656. Although it was slightly inaccurate to state that defendant could be re-evaluated “every six months”, the error was inadvertent and counsel made no effort to correct the court. When considered along with the judge’s careful attempt to stay within the context of the relevant Code of Criminal Procedure articles, it does not appear that this statement and the reference to medical help available in prison were designed to coerce the jury into a verdict of guilty. There is no merit in this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant also complains that he was illegally sentenced as a multiple offender under LSA-R.S. 15:529.1, because the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 274 (1969), were not followed at the time of his prior guilty pleas and convictions. Defense counsel did not object to the sentence at the hearing on December 8, 1978, nor in the original assignment of error filed in the trial court.

State v. Lewis, 367 So.2d 1155 (La., 1979) held that:

“In a multiple offender hearing, only those previous pleas of guilty may be used to enhance a sentence which are supported by a contemporaneous record of a Boykin examination demonstrating the free and voluntary nature of a plea of guilty with an articulated waiver of the constitutional rights required by Boykin v. Alabama.” 367 So.2d 1160.

Subsequent to Lewis, the United States Supreme Court decided that a plea of guilty which failed to comply with Rule 11 of the Federal Rules of Criminal Procedure (which incorporates the requirements of Boykin v. Alabama, supra) could not be collaterally attacked in a habeas corpus proceeding solely on that basis. United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979).

In State v. Holden, 375 So.2d 1372 (La., 1979) the State sought to use a federal conviction to enhance the sentence under LSA-R.S. 15:529.1. Timmreck, supra, was interpreted to require a defendant making a collateral attack on a prior federal conviction to show affirmatively that he was not advised of the consequences of his previous guilty plea, either by the court or through counsel. Holden overruled Lewis insofar as it applied to federal and non-Louisiana convictions and insofar as it applied to Louisiana convictions prior to December 8, 1971. On December 8, 1971, the decision in State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971) became final. It recog-. nized the requirements of Boykin in Louisiana and applies to subsequent guilty pleas. State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972).

Holden declared:

“Upon objection by defense counsel that the guilty plea does not affirmatively show it was taken in compliance with Jackson and LeBlanc, the state will have the burden to show as to these convictions that the defendant waived his constitutional rights . . . .” 375 So.2d 1376.

Holden specifically notes in the quoted language that an objection is required before the State has the burden of proving advice of rights on previous pleas.

There was no objection at the time the multiple offender bill was considered; in fact, defendant, through counsel, admitted the allegations. Therefore, the State was not required to show a Boykin compliance.

The assignment is without merit.

DECREE

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

CALOGERO and BLANCHE, JJ., concur.

MARCUS, J., concurs and assigns reasons.

MARCUS, Justice

(concurring).

I would overrule both State v. Lewis, 367 So.2d 1155 (La.1979) and State v. Holden, 375 So.2d 1372 (La.1979); however, if Lewis is not overruled outright, I would continue to concur in the limitation placed on it in Holden. Accordingly, I respectfully concur.

      . LSA-C.Cr.P. art. 655(B) provides that an application for discharge by a committed person may not be filed until the person has been confined for at least six months; if the determination of the court is adverse, another application may not be filed for a period of one year.


author: DENNIS, J., WATSON, J.,

text:
    James OTIS v. STATE of Louisiana THROUGH the DEPARTMENT OF CORRECTIONS.
    No. 66663.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In Re: James Otis, applying for Certiora-ri, or writ of review to the Court of Appeal, First Circuit, No. 12,862, Parish of E. Baton Rouge.

Writ granted. Case remanded to Court of Appeal for evaluation of the record.

DENNIS, J.,

concurs. Although an opinion is not required in this case by the Court of Appeal, its per curiam does not make clear that it independently reviewed the evidence rather than basing its decision of the facts as found by the trial court.

BLANCHE, J., would grant for reason assigned by WATSON, J.

WATSON, J.,

would grant the writ on the merits; he also dissents from the remand.


author: HAMITER, Justice.

text:
    214 La. 424
    SCHAUB et al. v. O’QUIN.
    No. 38613.
    Supreme Court of Louisiana.
    Nov. 8, 1948.
    Rehearing Denied Dec. 13, 1948.
    Appeal from First Judicial District Court, Parish of Caddo; Henry F. Turner, Judge.
    Action by William H. Schaub and others against Leon O’Quin for specific performance of a written contract .to purchase certain immovable property. From a judgment for plaintiffs, defendant appeals.
    Irion & Switzer and Harry A. Johnson, Jr., .all of Shreveport, for plaintiffs-appel-lees.
    Blanchard, Goldstein, Walker & O’Quin, of Shreveport, for defendant-appellant
   HAMITER, Justice.

The defendant is appealing from a judgment, rendered in this specific performance action, ordering a compliance with 'his written contract dated January 30, 1947, to purchase from plaintiffs certain immovable property located' in the City o.f Shreveport. The contract, among other things provided: “Should the title of Vendors in and to the .property described be found from the examination contemplated to be unmerchantable or invalid, then this agreement shall have no further force or effect and the Cashier’s check (in the sum of One Thousand Dollars) hereinabove mentioned shall be returned to Vendee, * * * ”.

The plaintiffs claim title through mesne conveyance from Jeannette Crea Pugh and John Crea Pugh IV, the minor children of John Crea Pugh, deceased, their interests purportedly having been transferred in an act of private sale of date June 13, 1945, executed pursuant to a judgment of court ‘by the First National Bank of Shreveport,, as tutor of such minors, in favor of one John A. Kirspel, plaintiffs’ vendor.

In the confection of that .sale' o.f the minors’ interests the named tutor presented a petition to the District Court of Caddo Parish showing “that said property can not be sold advantageously except at private sale, and that it is to the evident advantage of the said minors that the property be sold, since it is unproductive and requires, the payment of taxes and is therefore a burden upon the estate, whereas the proceeds can 'be invested and bring in a ■revenue.” Further, the petition recited the price, terms and conditions of the sale proposed to be .made to John A. Kirspel:

The tutor’s acting trust officer verified the petition by an attached affidavit of date June 9, 1945. Also annexed was an affidavit (bearing the same date) executed by the minors’ .undertutor and reciting: “That 'he is undertutor of the minors, Jeannette Crea Pugh and John Crea Pugh. IV; 'that be has read the above and foregoing petition and that he concurs in the recommendations and prayer thereof; and that he considers it to 'the evident advantage of the said minors that the said property be sold as outlined therein.”

'On the showing thus made (the recommendation of the tutor with the concurrence of the undertutor) the court, on June 11, 1945, rendered and signed a judgment authorizing a sale of the property as recommended and prayed for in the petition. In keeping therewith, two days later, a deed to Kirspel was executed.

In regulating the private sale of property belonging wholly or in part to a minor or to an interdict (not for the purpose of partition) Act No. 209 of 1932, insofar as pertinent, provides:

“Section 1. Be it enacted by the Legislature of Louisiana, That whenever it shall appear to the tutor of a minor, or the curator of an interdict, who shall own property, either in its entirety or in indivi-sión, that it is to the advantage of the minor or of the interdict to sell the interest of the minor or of the interdict therein at private sale, the tutor or curator may file a petition in the District Court of the parish in which said minor or interdict resides, setting forth the nature of the property, the reasons which make it to the advantage of the minor or of the interdict to sell such interest at private sale, and the price, terms and conditions of the proposed sale.
“Section 2: That thereupon a rule shall issue, directed to the undertutor or under-curator, returnable on such date as the Court shall fix, during a .term of Court or in vacation, to show cause why the prayer of the petition filed by the tutor or curator should not be granted; and uppn trial of said rule, the Court shall hear such evidence as may be necessary to establish the advantage to the minor or to the interdict of the private sale of the property.
“Section 3. The Court may appoint -experts to examine into th-e conditions and value of the property, or may receive evidence on the trial of the rule; and the Court may, in its discretion, order the convocation of -a family meeting for the purpose of advising upon the issues presented by the petition of the tutor or curator.
“Section 4. That, in the event the private sale of the interest of any minor or interdict in any property be ordered under the foregoing Sections of this Act, the judgment of the Court shall fix the minimum price to be accepted, the cash or credit terms of the sale, and the security to be given the minor or interdict to secure the credit portion of the purchase price.”

The defense to this specific performance action is that the title tendered by plaintiffs is defective and suggestive of litigation, defendant particularly questioning the validity of the order or judgment authorizing the mentioned private sale of the minors’ interests to Kirspel. 'In this connection, to quote from the answer, -he alleges:

* * * tihat said order could have been validly rendered only upon strict compliance with the provisions of Paragraphs 1, 2, 3 and 4 of Act 209 of the Legislature of Louisiana for the year 1932, and -that said order and the private sale attempted pursuant thereto are null, void and without effect for failure of compliance with the provisions of the statute referred •to-, in the following respects:
“(a) There was no prayer for nor did any rule issue in the proceedings leading to the order of June 11, 1945, directed to -the undertutor of the minors, ordering 'him to show cause why the prayer of the petition of the tutor (for authority to sell at private sale) should not be granted.
“(b) There was no'pleading or appearance by or on be'hálf of the undertutor, pursuarf-t to any judicial process.
“(c) No time or date was fixed for trial or hearing of the application of the tutor for authority to sell at private sale.
“(d) There was no trial or hearing of any rule directed to the under-tutor, nor was any evidence adduced -in open court or at chambers to establish the advantage of the sale proposed. v
“(e) The judgment or order of June 11, 1945, purporting to authorize a private sale of the interests of the minors was not rendered or signed in open Court.”

Defendant prays that plaintiffs’ demands be rejected.

While conceding that the facts are as defendant alleges, counsel for plaintiffs take the position that the proceedings resorted to by the tutor constituted a substantial compliance with the provisions of Act No. 209 of 1932, and that the objections of the defendant are purely technical. and relate, to form rather than to substance. Further, they maintain that defendant is without right to collaterally attack the proceedings and judgment under which the minors’ interests were conveyed.

The defendant, in our opinion, is not making a collateral attack such as is prohibited in certain real actions. His defense creates merely the issue of whether or not the title tendered is suggestive of serious litigation, dearly he is entitled to raise that issue in this specific performance action, and a ruling thereon will determine rights only as between him and plaintiffs. Even if it could be correctly said that the questioned proceedings and judgment’were invalid, a holding to that effect in this cause would not be binding on the mentioned minors because they are not parties to this action; whatever decision i-s rendered will be ineffective against persons not impleaded.

In the jurisprudence of this court are to be found many cases involving actions to compel specific performance (of contracts to purchase immovable property) in which the defendants urged' defective titles by reason of alleged outstanding interests in third persons who were not parties to the suits. In some of them specific performance was ordered, the court deeming the legal questions raised by the respective proposed vendees, to be free of doubt and the objections obviously groundless. In others, however, the relief sought by the plaintiffs was denied; and the denials were not primarily because the court concluded that the titles tendered were actually defective. The decisions were grounded on the theory that third persons, not parties to the actions and unaffected by the judgments to be rendered, could thereafter make claims of a substantial nature against the titles and further subject the defendants to serious litigation. The purchaser, reasoned the court, is entitled to receive a complete, valid, unclouded title; he cannot be compelled to accept ■a title burdened with a claim having a substantial basis and, therefore, which is suggestive of serious future litigation; his agreement provided for the purchase only of the property, not the property plus a probable law suit. Bachino v. Coste, 35 La.Ann. 570; Bodcaw Lumber Company v. White, 121 La. 715, 46 So. 782; Scheuermann et al. v. De Latour, 130 La. 549, 58 So. 223; Praegner v. Kinnebrew and Ratcliff, 156 La. 132, 100 So. 247; Johnson v. Johnson, 213 La. 1092, 36 So.2d 396.

To the last mentioned group of cases, we think, the instant action belongs. Of course, in making this observation, we are not holding that plaintiffs’ title is actually defective in that the interests of the minors of John Crea Pugh, deceased, by reason of the tutor’s failure to obsérve strictly and literally the provisions of Act No. 209 of 1932, were not divested; it may be that in a proper proceeding, with thd minors duly represented, the position of plaintiffs would prevail and their title adjudged" good and valid. What we do hold is that there appears a substantial basis for a claim by the Pugh minors, who are not parties to this cause, thereby rendering the tendered title suggestive of serious future litigation and constituting it one which defendant is not obliged to accept.

This conclusion is inescapable when it is considered that Act No. 209 of 1932 provides clearly a specific procedure, which the tutor admittedly did.not strictly follow, for consummating a private sale of property belonging to a minor; when it is realized that there exists no jurisprudence previously determining the question of whether or not a substantial compliance with those statutory provisions (the position which plaintiffs take herein) will suffice; and when it is remembered that •the courts are required to carefully scrutinize transactions respecting the alienating of property of a minor and to otherwise zealously guard his interests.

Moreover, a decision in favor of these plaintiffs, amounting to the confirming of their title as against the unrepresented minors and the compelling of defendant to accept the property and pay the agreed purchase price, could possibly lead to the experiencing of undue hardships by either the minors or this defendant. If in the future, following such a decision, the minors attempt to litigate their claim, naturally the court would be inclined to respect its previously rendered ruling, in which event they would be seriously handicapped In urging their demands. On the other hand, should the minors in future litigation succeed in setting aside the judgment confirming the title o,f these plaintiffs, the defendant will have to relinquish the property (which the court ordered accepted) and there will be left to him the sometimes difficult task of attempting to obtain reimbursement from his vendors of the sizable purchase price paid.

For the reasons assigned the judgment o'f the district court is reversed and set aside, and there is now judgment in favor of the defendant dismissing this suit and rejecting the demands of plaintiffs at their costs.


author: HAWTHORNE, Justice.

text:
    214 La. 434
    LEE v. LEE.
    No. 38954.
    Supreme Court of Louisiana.
    Nov. 8, 1948.
    Rehearing Denied Dec. 13, 1948.

      Richard Kilbourne, of Clinton, and Dur-rett & Hardin, of Baton Rouge, for defendant and appellant.
    Ashton L. Stewart, of Baton Rouge, for plaintiff and appellee.
   HAWTHORNE, Justice.

Plaintiff-appellee, Mrs. Jeanne Jamison Lee, instituted this suit against her husband, Clarence O. Lee, from whom she was judicially separated, to have set aside an agreement for the settlement of the community which had existed between them.

The trial judge after trial on the merits rendered judgment annulling and rescinding the agreement or contract entered into between these parties, and ordering that defendant make a true statement and accounting to the plaintiff of all properties belonging to the community of acquets and gains which had existed between them, and that plaintiff and defendant be recognized as the owners in indivisión, in the proportion of one-half to each, of all the property belonging to the community prior to its dissolution, and further ordering a true and correct inventory of all the property belonging to the community. From this judgment defendant, Clarence O. Lee, has appealed to this court.

The appellee, Mrs. Lee, attacks the agreement settling the community which >ihad existed between her and her husband on several grounds, one of these being fraud. She contends that the agreement was obtained through fraudulent representations and fraudulently withheld information, and, since we are of the opinion that this contention is well founded, it is unnecessary for us to discuss her other contentions.

A careful consideration of all the evidence and testimony adduced during the trial of this case convinces us that the relationship of these parties, who were married on October 8, 1936, was unpleasant and not harmonious, and that plaintiff had made the statement on numerous occasions that she was going to leave her husband if their relationship did not improve. On July 18, 1946, the difficulties between these parties reached their zenith, and, due to the husband’s abuse and physical mistreatment of the wife, she left their common dwelling, taking with her to the home of friends her young son, born of her marriage to Clarence O. Lee, and some of her personal belongings. Mr. and Mrs. Lee haVe never become reconciled since the separation. A suit was instituted by the husband on or about August 1, 1946, for a separation from bed and board, and judgment was rendered decreeing such separation on August 9.

On the same day on which the judgment of separation was rendered, an agreement or contract was entered into by these parties in which it was stated that they desired to make full and complete settlement of the community of acquets and gains which existed between them, and for the purpose of effecting such settlement and partition the said Clarence O. Lee paid unto Mrs. Jeanne Jamison Lee the sum of $18,-000 cash, in consideration whereof Mrs. Lee conveyed, transferred, and delivered unto Mr. Lee all of her right, title, and interest in any and all the community property and the assets acquired during the marriage. On the trial of this case the district judge found — and we agree with his finding — that the community which had existed between these parties had a value in excess of $100,000 at the time of the separation.

On July 19, the day following the night on which Mrs. Lee left the common dwelling, the defendant herein went to a safety deposit box in a bank in Baton Rouge and removed therefrom over 3500 shares of stock in various corporations, which had been purchased during the existence of the community for approximately $35,000, and sold them through the stock exchange for an amount in excess of $88,000, realizing a profit therefrom of over $52,000. On the same day he withdrew from banks in Baton Rouge, by means of checks made payable to C O. Lee, Jr., his son by a prior marriage, large sums of money which allegedly belonged to the community — $1100 from the American Bank & Trust Company, $2000 from the Louisiana National Bank, and $375 from the City National Bank, or a total of $3475.

■ A short time prior to the filing of the suit for separation from bed and board and prior to the settlement of the community, Mr. Lee falsely represented to his wife that he had lost from his person on the same ■day on which the various stocks were sold the proceeds thereof (which the record discloses amounted to more than $88,000). When “his wife inquired about the sale of the stock, he admitted the sale, adding: “It is a funny thing — I lost that money before I got home.”

Mrs. Lee frankly admitted that, at the time the settlement was made, she realized that she was not getting her full share of the community. ■ She stated, however, that she had no idea of its true value or worth until requested in March, 1947, to sign income tax returns showing a very large community income for the year 1946, on which her portion of the tax amounted to more than one-third of the sum she had taken in full settlement of the community. In other words, she learned then for the first time that she was actually entitled to ¡a much larger sum than that which, in her ignorance of. the true value of -the community property, she had accepted in the settlement. A short time after she saw this income tax return, she employed an attorney, and this suit was instituted.

’ When Mrs. Lee signed the settlement agreement in' August, 1946, her situation was a trying and even a desperate one. Shortly after she left the common'dwelling and took refuge with friends, her husband permitted her.to cash one check for $100, and this was apparently all the money she had. She stated that she had no home and no place to live. She knew that her husband had sold all the shares of stock and believed that, whether the money realized from these sales was actually “lost” as her husband asserted, it had been placed out of her reach- and was, “lost to her”. She knew that her husband 'would not voluntarily pay her alimony, She realized that he could Ánd would mortgage the immovable property and place it beyond her reach. In her own words, she had “nothing to fight with.” She .dreaded-a protracted lawsuit and the 'publicity incident thereto, and believed she would losd in 'the .long run by litigation. She endeavored to obtain the services of several different attorneys to represent her in a separation proceeding and in the property settlement, but due to her financial condition was unable to employ counsel.

Her husband informed her that she could accept the $18,000 he offered her in full settlement of her interest in their property or resort to a lawsuit, which would avail her nothing, and, further, that, if she did not accept the $18,000 but tried to get more, she would end by getting an even smaller sum or nothing at all. Having been in.duced by her husband’s representations to believe that the sum of $18,000 was the .largest amount which she could get as her share of the property, and believing that this sum would' enable her to obtain some measure of security for herself and her young son, she acquiesced and signed the settlement agreement.

We must bear in mind that the parties to this contract or .agreement were not strangers dealing with each other at arm’s length, but had the relationship of husband and wife to each other. .Mr. Lee, as head and master of the community, was in a position to sell and dispose of the community property without-the knowledge and consent of his wife. The property was under his supervision and control, and, with the advantage which this position gave to him, he practically,' if not positively, coerced his wife to accept the settlement, knowing full well at the time that he had withheld from her the true value of the property belonging to the community and also knowing that she - had been forced into a position, without the benefit of counsel, of accepting a settlement subject to his own terms. In our opinion, under the circumstances in this case the husband did not discharge his duty to deal fairly and justly with his wife.

■ It is appellant’s contention that Mrs. Lee is not entitled to have the contract annulled and set aside on the ground of fraud unless her reliance on the false, representations of her husband cause^ her to sign the agreement. He argues that she has failed to show that she relied in any way upon the representations of her husband, whether they were true or false, or that she was prompted to execute the contract because of her belief in the truth of Mr. Lee’s representations.

This contention might merit our serious consideration if the parties to the contract were strangers to each other, but, bince they are husband and wife, and since the husband by virtue of his superior position may compel his wife to settle the community for less than her share, this court will scrutinize such contract with the utmost care in order to ascertain whether he has coerced his wife by any circumstances into signing an unfair settlement agreement.

As further evidence that Mr. Lee intended to defraud his wife out of her just proportion of the community and to prevent her from obtaining any additional amount .other than the $18,000 previously paid, a little over a month before the present suit was filed, Mr. Lee executed a mortgage on certain movable and immovable property, allegedly belonging to the community, in the sum of $46,000—the record discloses that this property was appraised at only a little more than $28,000—and gave the note secured by this mortgage to his son, Clarence O. Lee, Jr., to whom he had previously given a large sum of money withdrawn from the banks in Baton Rouge on the day after the separation, as pointed out here-inabove.

In a -supplemental petition Mrs. Lee prayed for and caused a writ of attachment to issue without giving bond as required by Article 245 of the Code of Practice. In the lower court defendant-appellant filed a motion to dissolve, which was overruled, and the judgment of the lower court from which he has -appealed maintained this writ of attachment. Appellant takes the position that the trial court erred in maintaining the writ of attachment, and that it should be dissolved due to the failure of plaintiff to give bond.

Under the plain terms of Article 245, a creditor praying for a writ of attachment must, among other things, give bond before the writ is -issued. Furthermore, the remedy by attachment is an extraordinary one, dispossessing the party of his property, upon the ex parte showing of his oppoment, before his indebtedness is judicially ascertained. For these reasons it has been repeatedly held that the legal prerequisites must be fully complied with under pain of nullity. Erwin v. Commercial & Railroad Bank of Vicksburg, 3 La.Ann. 186, 48 Am.Dec. 447; Planters’ Bank of Tennessee v. Byrne, 3 La.Ann. 687.

Appellee contends that the question as to the validity of the writ is now moot under Article 266 of the Code of Practice, which provides that, if the debtor whose property has been attached has filed his answer, etc., the act of surety given by the plaintiff shall be cancelled as soon as judgment shall have been rendered in favor of such plaintiff. A reading of this -article shows conclusively that it has no application here.

For the reasons assigned, the judgment appealed from is reversed insofar as it maintains the writ of attachment. In all -other respects it is affirmed and made the judgment of this court. Appellant is to pay all costs.