author: WILLIAM NORRIS, III, Justice Ad Hoc. FRED C. SEXTON, Jr., Justice Ad Hoc, BLANCHE, Justice

text:
    STATE of Louisiana v. Ola SMITH.
    No. 81-KA-3189.
    Supreme Court of Louisiana.
    June 21, 1982.
    Rehearing Denied Sept. 3, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., G. M. Grosz, Abbott J. Reeves, William Credo, Asst. Dist. Attys., for plaintiff-appellee.
    Joseph L. Montgomery, Metaire, for defendant-appellant.
   WILLIAM NORRIS, III, Justice Ad Hoc.

Defendant was charged by bill of information with the crime of armed robbery in violation of La.R.S. 14:64. After trial by jury, she was found guilty as charged resulting in the imposition of a sentence of 20 years at hard labor without benefit of probation, parole, or suspension of sentence.

It is from this conviction and the resulting sentence that defendant appeals asserting two assignments of error, to-wit: (1) The Trial Court committed reversible error by failing to grant defendant’s motion for mistrial following questioning and comments by the District Attorney in violation of La.C.Cr.P. Art. 770(2) and La.R.S. 15:495; and (2) The Trial Court failed to properly delineate its reasons when it imposed sentence, and that the sentence was excessive.

FACTS

On January 6, 1977, at approximately 11:30 a. m. two black males and two black females entered the Hum Bug Jeans Store located on Williams Boulevard in Kenner, Louisiana. The two men stood at one end of the store while the two women selected two pair of jeans and shopped for shirts. There were two employees in the store during this time, one of whom was working behind the check-out counter. One of the two men came up behind this particular employee and said, “Turn around slow. This is a stick-up.” When the employee turned around, he was confronted by the two men, one of whom had a gun. The two employees were then taken to the rear of the store and forced to lie on the floor of the stockroom. The black female later identified by the victims as the defendant, Ola Smith, held a gun to each of the victims’ heads while they were being tied up by one of the men. The foursome stole approximately $3400 worth of jewelry, leather coats, jeans and suits and about $200 in cash. After they exited the store, they were seen by an adjoining shopowner who called the police and untied the victims.

Defendant was arrested the next day on a fugitive warrant from the 29th Judicial District Court for an armed robbery in St. Charles Parish. After her arrest, officers of the Kenner Police Department arranged a photographic line-up which was shown to the victims of the instant offense, who identified defendant as the female participant who had held the gun to their heads during the robbery at the Hum Bug Jeans Store.

ASSIGNMENT OF ERROR # 1

Prior to and on the same day as defendant’s trial, a hearing was held on a motion to suppress defendant’s identification at the photo line-up. After defendant’s motion to suppress was denied, defense counsel stated to the court that he had been served with notice of intention to use certain oral and written statements given by defendant. Defense counsel also objected to the use of the written statement because it did not relate to the instant offense but only related to the pending charge in St. Charles Parish. The court sustained the objection insofar as it related to the warrant for arrest from St. Charles Parish and gave the following instruction directed to the prosecutor:

I will sustain the objection to the written statement insofar as it relates to any warrant for arrest from St. Charles Parish. Also, I want you to caution the police officers not to go into the St. Charles Parish warrant. What other motions do we have?

Thereafter, trial on the instant offense commenced. The first witness called was Nick Congemi, a supervisor with the Ken-ner Police Department. He testified that he had directed Detective Fayard to take the photographs of defendant and arrange for the photo line-up. During cross examination, defense counsel pursued a line of questioning seeking to determine why a photo line-up rather than a physical line-up had been utilized for identification purposes. When defense counsel asked why the witness did not utilize the facilities of Jefferson Parish for a line-up, the court excused the jury.

The court then asked the question to the witness outside the jury’s presence. The witness then answered as follows:

Initially, she was arrested on a warrant from St. Charles Parish for armed robbery there and after we had her in our custody and prior to transporting her to Jefferson Parish, we took photographs of her prior to transferring her to St. Charles Parish. There was no way of taking her to Jefferson Parish at that time.

After further questioning by defense counsel [also outside of the presence of the jury], the court informed him that this line of questioning was leading to the St. Charles Parish armed robbery charge. The court further remarked that he might “open the door” with this line of questioning. The court finally remarked:

I am perfectly willing to let you talk about why the procedure wasn’t proper, but are you willing to let him repeat this in front of the jury. I would think that it would be very prejudicial to your client and I am trying to avoid any prejudicial evidence getting before this jury, such as testimony about an outstanding charge of armed robbery in another parish. I think you have made your point. (Emphasis added.)

After this statement, the jury returned, and defense counsel asked no further questions of this witness.

No further reference was made to any prior arrests until the defendant took the stand in her own defense. On direct examination she testified that she had no criminal record. Furthermore, she specifically denied having participated in the instant armed robbery.

Thereafter, on cross examination, the following exchange occurred between the defendant and the prosecutor:

[PROSECUTOR]
Q You testified that you have no criminal record, is that right?
A No.
Q Are you the same Ola Smith that was arrested in 1974, in Harahan, for possession of narcotics?
A No, I have never been arrested.
Q Are you not the same Ola Smith that was arrested on a fugitive warrant from St. Charles Parish for armed robbery?
A Yes, I was.
Q But, you don’t have any criminal record?
A No.
[PROSECUTOR]
That’s all I have.

No objection was made to this line of questions.

Subsequent to this exchange when the defendant completed her testimony on redirect examination, the state attempted to introduce an exhibit which was termed the “rap sheet of Ola Smith.” The defense then objected, and the court sustained the objection admonishing the jury to disregard the offering.

Then during closing argument, the prosecutor made the following comments:

* * * * * *
Another thing, she doesn’t have a good memory about her criminal record, and she denies having ever been arrested for narcotics and about the St. Charles Parish—
MR. WILLIAMS:
Your Honor, I object and I’m going to move for mistrial.

The court sustained the objection but denied the motion for the mistrial. Furthermore, there was no admonition given to the jury to disregard this statement. This is the particular ruling complained of in this assignment of error.

Evidence of an arrest is never admissible at trial. La.R.S. 15-.495. Therefore, La.C.Cr.P. Art. 770(2) mandates that a mistrial be granted in the instant case because of the remarks made by the prosecutor in his argument to the jury relating to the other two arrests for which evidence was not admissible. State v. Constantine, 364 So.2d 1011 (La.1978).

Initially, it was clearly erroneous for the prosecutor to question the defendant on cross examination about her prior two arrests particularly in light of the prior admonitions against such prejudicial testimony given by the trial judge at the hearings on the pre-trial motions. However, because the defense did not object contemporaneously, the erroneous admission of this testimony is not subject to our review. State v. Bernard, 358 So.2d 1268 (La.1978). However, notwithstanding, the prosecutor then attempted to offer the “rap sheet” which was objected to and again referred to the two arrests during his closing argument. The state concedes that its actions were improper but asserts that its reference in closing argument does not constitute reversible error relying on State v. Messer, 408 So.2d 1354 (La.1982) and La.C.Cr.P. Art. 921. Messer holds that a verdict will not be overturned on the basis of improper argument unless the court is firmly convinced that the jury was influenced by the remarks and that they contributed to the verdict. La.C.Cr.P. Art. 921 provides that a judgment or ruling shall not be reversed because of any error, defect, irregularity, or variance which does not affect a substantial right of the accused and did not influence the jury’s verdict. We conclude that these authorities are inapplicable in the instant case to excuse the conduct of the prosecutor because the remarks in argument could not be construed as simply improper, and the ruling affected a substantial right of the defendant, i.e., a statutory right granted to her by La.R.S. 15:495.

Even though defense counsel did not object to the earlier references to the arrest of the defendant, the fact that the prosecutor made a prejudicial reference to the arrests without objection during questioning does not grant him license to exploit defense counsel’s inattention, omission, or mistake by repeated prejudicial comments in the same vein. See State v. Lee, 346 So.2d 682 (La.1977). On the face of the record, this is exactly what was attempted in this case. The following statement from Lee is equally applicable and appropriate here:

Our rules are not intended to be available for manipulation by the defense or by the state. (Emphasis added.) 346 So.2d at 685.

While the evidence in this case may be sufficient to establish defendant’s guilt beyond a reasonable doubt, that is hardly an excuse for the prosecutor to be allowed to make such a statutorily impermissible comment during his argument. Our view in this regard is bolstered by occurrences during the hearing on the pre-trial motions that resulted in the trial court’s statement that evidence of the St. Charles arrest for the offense of armed robbery was not to be admissible at trial, the dialogue during the questioning of the police officer outside the presence of the jury and the sustaining of the objection to the introduction of the “rap sheet” with the accompanying admonition. Furthermore, the reference in the argument called attention to the St. Charles Parish arrest which was for armed robbery, the exact crime for which the defendant was standing trial.

The state’s position that the actions of the prosecutor constitute harmless error is totally without merit. A mistrial is mandated under La.C.Cr.P. Art. 770(2) for the exploitation of the arrest testimony during the closing argument because La.C.Cr.P. Art. 770 conclusively determines that a reference to another crime as to which evidence is not admissible is prejudicial. State v. Green, 315 So.2d 763 (La.1975).

ASSIGNMENT OF ERROR # 2

Defendant argues that the sentence of 20 years at hard labor without benefit of parole, probation or suspension of sentence is excessive and that the trial court failed to give adequate reasons for the imposition of the sentence.

While our holding on Assignment of Error # 1 pretermits any necessity for our discussing this assignment, our review of the record indicates that the trial judge failed to adequately comply with the sentencing guidelines of La.C.Cr.P. Art. 894.1. We simply make this observation in an attempt to avoid the necessity for another remand on this issue should another appeal result from a re-trial of this case.

Accordingly, for the foregoing reasons, the conviction of defendant for armed robbery is reversed, her sentence is vacated, and the case is remanded to the district court.

FRED C. SEXTON, Jr., J. ad hoc, concurs with reasons.

BLANCHE, J., dissents and assigns reasons.

FRED C. SEXTON, Jr., Justice Ad Hoc,

concurring.

I concur in the treatment of Assignment No. 1 in holding that a mistrial is mandated under the authority of LSA-C.Cr.P. Art. 770(2). However I disagree with the treatment of Assignment No. 2 with respect to the sentence. In my view, the severity of the offense coupled with this defendant’s specific actions in committing it are sufficient to place the sentence imposed within the considerable discretion of the trial judge.

BLANCHE, Justice

(dissenting).

I respectfully dissent.

Objection by defense counsel interrupted the state’s argument before the prosecution was able to inform the jury that the St. Charles warrant was issued on a charge of armed robbery. Although the state’s reference to the St. Charles warrant was decidedly improper, I do not believe its effect was so prejudicial to the defendant as to warrant reversal of this conviction. The error was harmless and the conviction should be affirmed.

       Judges William Norris, III, and Fred C. Sexton, Jr., of the Court of Appeal, Second Circuit, and Judge Robert L. Lobrano of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, Jr., and Harry T. Lemmon.

      . La.R.S. 15:495 provides:
      Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.

      . La.C.Cr.P. Art. 770 provides:
      Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      (1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      (3) The failure of the defendant to testify in his own defense; or
      (4) The refusal of the judge to direct a verdict.
      An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

      . La.C.Cr.P. Art. 921 provides:
      A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.


source: Caselaw Access Project

author: FRED C. SEXTON, Jr., Justice Ad Hoc .

license: Public Domain

text:
    STATE of Louisiana v. Lawrence Wayne HUNTLEY.
    No. 81-KA-3139.
    Supreme Court of Louisiana.
    June 21, 1982.
    Rehearing Denied Sept. 3, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Jack D. Miller, Michael Garsen, Asst. Dist. Attys., for plaintiff-appellee.
    Jack Rogers, John M. Crochet, Rogers, St. Romain & Crochet, Lake Charles, for defendant-appellant.
   FRED C. SEXTON, Jr., Justice Ad Hoc .

On February 28, 1980, defendant, Lawrence Wayne Huntley, was indicted by the Grand Jury of Vermillion Parish for first degree murder. The defendant was arrested the same day pursuant to an arrest warrant arising from the Grand Jury indictment. The defendant was charged with the April 9, 1976, stabbing death of Linda Hebert, which occurred during the armed robbery of a liquor store owned by the deceased and her husband. At the time of the robbery, the deceased was alone in the store. The day after his arrest, February 29, 1980, the defense confessed to the murder of Mrs. Hebert, giving both oral and written admissions of guilt.

On January 6, 1981, the state amended the indictment to charge the defendant with second degree murder. After a trial by a jury of twelve, the defendant was found guilty of second degree murder as charged. On February 17, 1981, the defendant was sentenced to life imprisonment, at hard labor, without benefit of parole, probation, or suspension of sentence for a period of forty (40) years. The defendant appeals his conviction and argues two assignments of error.

ASSIGNMENT OF ERROR NO. 1

Defendant’s first assignment of error charges that the trial court erred in denying defendant’s motion to suppress pos1>in-dictment confessions given to police officers shortly after his arrest and before he had counsel. The defendant contends that confessions given by him were elicited unconstitutionally by state agents in violation of his right to the presence of counsel at all critical stages of a criminal proceeding as secured by the Sixth and Fourteenth Amendments to the United States Constitution.

He asserts that Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, and its progeny, Brewer v. Williams, 403 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424, as well as the recent case of United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), preclude interrogation after indictment in the absence of counsel, unless the state proves convincingly that the defendant affirmatively waived counsel’s presence.

In Massiah, a 1964 decision, the United States Supreme Court held improper the placing of a transmitter on a cooperating co-defendant, whose cooperation was unknown to the defendant. The purpose of the transmitter, of course, was to enable government agents to overhear statements elicited from the defendant by the cooperating co-defendant. This action was post-indictment and the defendant was on bond.

Henry is similar to Massiah. After indictment the government agents contacted an informant who had previously worked with them and who was also in the same jail. The defendant subsequently made incriminating statements to this paid informant which were introduced at his trial. The differences between Henry and Massi-ah are that in Henry the informant and the defendant did not have a long standing relationship and further, in Henry, the informant was specifically instructed not to initiate any conversations about the alleged conduct of the defendant in question.

Brewer is the well known “Christian burial speech” case rendered by a sharply divided court. The defendant had consulted with an attorney in Des Moines, Iowa, prior to turning himself in to police in Davenport, Iowa. His attorney in Des Moines had told him not to talk to police officers. After his arrest and appearance before a judge in Davenport an attorney was appointed in those proceeding who likewise advised him not to talk with police officers. Additionally the Des Moines attorney specifically instructed the officers who were to travel to Davenport to return the defendant not to interrogate him. Likewise the Davenport attorney told the Des Moines officers when they arrived there that they were not to interrogate the defendant during the course of the return trip. He also advised the defendant not to make any statements to the officers.

Apparently the weather was quite cold and snow was expected. During the trip, after warning the defendant not to discuss the matter with him, one of the detectives told the defendant that he realized they would be going past the site where the defendant had left the child who was the victim of this offense and asked the defendant to consider the fact if they did not stop and locate the body, that if they attempted to do so after going first to Des Moines, that the snow might preclude even the defendant from locating the body. He told the defendant not to tell him anything then but to “think about it.” Brewer subsequently told the officer without further prompting where to locate the body. This statement and the resulting evidence were used against him at the trial.

There was no real dispute as to the facts between either the “majority,” those concurring or the dissents. The divergence of opinion was on the interpretation to be given to those facts. The majority viewed the action of the detective as not being an interrogation, while the dissents saw the defendant’s statement as a voluntary waiver. The concurrence of Justice Stevens caught the spirit of the opinion as he pointed out that an experienced trial attorney had trusted the officers not to interrogate the defendant. Thus the court felt that this trust had been dishonored by surreptitious police conduct.

On examination it is apparent the main concern of the court in all these cases was over what was viewed as surreptitious indirect action by law enforcement agents involving trick or artifice. That is, the police agency “deliberately elicited” the incriminating statements from the defendants after counsel had been brought into the case.

Note that in Massiah and Henry the government action complained of is substantially after indictment and the entry of counsel into the case. Massiah makes it clear that it was the surreptitious police conduct in obtaining evidence that concerned the court.

“. .. here the damaging testimony was elicited from the defendant without his knowledge while he was free on bail.” (Emphasis added).

The majority noted with approval language from a dissent in the Court of Appeal:

“If such a rule is to have any efficacy it must apply to indirect and surreptitious interrogation as well as those conducted at the jail house.” (Emphasis added).

The court narrowed the holding by stating:

“All that we hold is that the defendant’s own incriminating statements, obtained by federal agents under the circumstances here disclosed, could not constitutionally be used by the prosecution as evidence against him at his trial.” Massiah, supra, 84 S.Ct. at p. 1203. (First emphasis added).

By the time Massiah had matured into Henry it was clear that the United States Supreme Court considered the rule of Mas-siah to preclude government agents deliberately eliciting incriminating statements after counsel was or should have been in the case. The Chief Justice, as author, noted:

“The question here is whether under the facts of this case, a government agent ‘deliberately elicited’ incriminating statements from Henry within the meaning of Massiah.” Henry, supra, at p. 2186.

The Chief Justice went on to say:

“By intentionally creating a situation likely to induce Henry to make incriminating statements without the assistance of counsel the government violated Henry’s Sixth Amendment right to counsel. . . . [This is a case] where the ‘constable’ planned an impermissible interference with the right to the assistance of counsel.” Henry, supra, at p. 2189. (Emphasis added).

Thus the debate among the court seemed to center on whether the facts and holding in Henry established a more passive test. Justice Blackmun complained in dissenting that the majority holding in Henry required henceforth:

“. . . a showing that the agent created a situation ‘likely to induce’ the production of incriminating remarks.” Henry, supra, at p. 2193. (Emphasis added).

So whether the test was actually changed by Henry to the more passive “likely to induce,” the real concern in all three cases was over planned surreptitious conduct after the case had reached, or should have reached, an adversary level.

In articulating that subjective concern the United States Supreme Court spoke in objective terms of the action being a deprivation of the right to counsel in that the actions of the law enforcement officers “interrogated” the defendant after a critical stage of the proceedings (indictment) and that it was error to do so.

The defendant in this case had only been arrested the day before and had not yet been brought before a magistrate. He was apparently under the influence of alcohol and thus the interrogation complained of was some 26 hours later, at least partly because of his condition at the time of arrest. If the state had obtained an arrest warrant for the defendant instead of an indictment, the defendant obviously could not then be heard to complain as to his statements on a Sixth Amendment basis. It is illogical under these circumstances to compare this case with Massiah, Brewer or Henry where the concern was over conduct intended to “deliberately elicit” or “induce” the defendant to incriminate himself. There is not the slightest allegation of surreptitious or indirect conduct here.

It is evident that this defendant convincingly waived his Sixth Amendment rights. He was rendered his Miranda warnings on at least four occasions. Importantly the record shows that the defendant initiated the conversation which led to his eventual statements in question with Officer Bernard. Bernard, apparently a jailer, saw the defendant, whom he knew, in the corner of his cell and asked him how he was feeling. The defendant responded that his stomach was bothering him and he came and sat next to the officer and began talking about the offense to him. Bernard interrupted him and told him that he did not have to tell him anything about it.

The defendant stopped talking but later apparently without questioning by Bernard stated, “I’ve been wanting to tell for a long time.” He did not actually relate the events and the officer told him that he did not have to tell him if he did not want to. The defendant reiterated his desire to discuss the matter. Bernard then asked the defendant if he wanted to confess without a lawyer. The defendant responded that he did not have money for a lawyer and Bernard told him that he did not need money to have a lawyer. At the defendant’s request Bernard contacted the defendant’s mother and sister so he could talk with them about it before talking to the investigating officers.

Bernard emphasized that he told the defendant that if he repeated his statements to one of the investigating officers that they would use it against him. Bernard testified that the defendant stated he did not care. Subsequent to giving an oral recorded confession the defendant also gave a written confession. The written confession was before a notary public unconnected with the police department. It was this notary’s first occasion to render such a service to the Abbeville Police Department. In that notarized statement after each line of warning the notary asked the defendant if he understood the enumerated right. Specifically included therein was the following:

“I was, also, warned and advised of my rights to the advice and presence of my own lawyer. Before any time during any questioning of statements I make, or if I am not able to hire a lawyer, I may request and have a lawyer appointed for me by the proper authorities without cost or charge to me. I do not want to talk to a lawyer, and I hereby knowingly and purposely waive my rights to the advice and presence of a lawyer before and during questioning or at any time before or while I voluntarily make the following statements to the aforementioned or aforesaid person.”

Thus the defendant initiated the conversation with an officer (who was not investigating the case) by indicating his desire to tell about the event. He was given the opportunity to talk to his mother and sister before the investigating officers inquired of him. He specifically waived his right to counsel in no uncertain terms before the police officers and later before an impartial notary public, after numerous Miranda warnings. His statements were not “deliberately induced” or even “enticed.” Thus the agents for the state did not violate the defendant’s Sixth Amendment right to counsel as articulated by Massiah, Brewer and Henry.

This assignment of error lacks merit. ASSIGNMENT OF ERROR NO. 2

The defendant’s second and final contention is that the trial court erred in allowing a photograph of the victim’s body to be admitted into evidence. The test of admissibility of a so called “gruesome” photograph is whether its probative value outweighs its possible inflammatory or prejudicial effect on the jury. State v. Myles, 389 So.2d 12 (La.1979), rehearing denied. As this court noted in State v. Manieri, 378 So.2d 931 (La.1980):

“Photographs of the body of a victim depicting fatal wounds are generally relevant to prove the corpus delicti, to corroborate other evidence of manner in which death occurred, to establish the location, severity and number of the wounds, and to establish the identity of the victim. State v. Cooper, 334 So.2d 211 (La.1976). However, the danger of abuse where photographs are exhibited to the jury warrants some qualification of this rule. The sight of cruel injuries tends to overwhelm reason and to associate the accused with the atrocity without sufficient evidence. 4 Wigmore, Evidence, § 1157 (Chadbourn, rev. ed., 1972). State v. Gilmore, 332 So.2d 789 (La.1976).”

Here the photograph tends to corroborate the pathologist’s testimony and although the photograph is unpleasant it is not of such a great inflammatory or prejudicial nature as to outweigh its probative value. We find that the trial court did not abuse its discretion in admitting the photograph of the victim’s body. Accordingly we find the assignment of error without merit.

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

AFFIRMED.

LEMMON, J., concurs.

DENNIS, J., dissents with reasons.

       Judges Fred C. Sexton, Jr., and William Norris, III, of the Court of Appeal, Second Circuit, and Judge Robert L. Lobrano of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Jack C. Watson, and Harry T. Lemmon.

      . Justice Stewart wrote for the two man majority with Justice Marshall, Powell and Stevens concurring. Chief Justice Burger was joined in an extremely sharp dissent by Justice White, Black and Rhenquist. Note that the Chief Justice was the author of Henry.

      . Note that Louisiana only requires an indictment in capital cases and life imprisonment cases, Art. 1, Section 15 of the Louisiana Constitution of 1974, LSA-C.Cr.P. Art. 382, but an indictment is required in all federal prosecutions unless waived by the defendant, U.S. Constitution, Amend. 5, Federal Rules of Criminal Procedure, Rule 7.


author: DENNIS, Justice. CALOGERO, Justice, MARCUS, Justice BLANCHE, Justice

text:
    Henry J. SENAC v. Ronald Davis SANDEFER, Manchester Insurance & Indemnity Company and the Louisiana Insurance Guaranty Association.
    No. 81-C-2925.
    Supreme Court of Louisiana.
    June 21, 1982.
    Rehearing Denied Sept. 3, 1982.
    Dennis A. Pennington, Spedale, Sanders & Pennington, Baton Rouge, for applicant.

      Richard Creed, Jr., Owen, Richardson, Taylor, Mathews & Atkinson, Baton Rouge, for respondents.
   DENNIS, Justice.

The plaintiff, Henry J. Senac, filed suit against Ronald D. Sandefer and his automobile liability insurer, Manchester Insurance & Indemnity Company, seeking damages for personal injuries received in an automobile accident. Plaintiff was operating his employer’s delivery truck when it was involved in an accident on December 3, 1971, with a vehicle owned by the defendant, Ronald Sandefer and insured by Manchester Insurance & Indemnity Company. Plaintiff sought recovery for medical expenses, pain and suffering, and loss of wages. Manchester Insurance & Indemnity Company became insolvent and its obligations were assumed by the Louisiana Insurance Guaranty Association (LIGA) pursuant to La.R.S. 22:1375 et seq.

The parties entered into a joint stipulation which provides as follows:

“1. That, but for the legal issue involved herein, there shall be judgment rendered in favor of plaintiff, HENRY J. SENAC, and against the defendants, MANCHESTER INSURANCE & INDEMNITY COMPANY AND LOUISIANA INSURANCE GUARANTY ASSOCIATION, in the full sum of FOUR THOUSAND NINE HUNDRED and no/100 ($4,900.00) DOLLARS.
“2. That all recovery due the plaintiff shall be for general damages and shall not be construed as recovery for special damages such as lost wages or medical expenses.
“3. That plaintiff, HENRY J. SE-NAC, recovered from Employers Commercial Union Insurance Company, the sum of $4,900.00 in weekly indemnity workmen’s compensation benefits, (not medical expenses).
“4. That the parties hereto agree that the legal issue to be decided by this Court is whether the Louisiana Insurance Guaranty Association is entitled, under LSA R.S. 22:1386 to offset the stipulated general damages due plaintiff of $4,900.00 with the $4,900.00 in workmen’s compensation benefits received by the plaintiff from Employers Commercial Union Insurance Company.”

The legal issue stated in section 4 of the joint stipulation, supra, was resolved in favor of the plaintiff by the trial court. In written reasons for judgment, the trial court observed that the $4,900 in stipulated general damages to which the plaintiff was entitled did not include recovery for any loss of wages. The compensation benefits received by the plaintiff under the provisions of La.R.S. 23:1021, et seq. were payments, made in lieu of salary. Citing Fontenot v. Hanover Insurance Company, 385 So.2d 238 (La.1980), the trial court held that LIGA was not entitled to any credits for the $4,900 paid by the compensation insurer because there had not been a duplication of recovery as contemplated by La.R.S. 22:1386.

The court of appeal reversed the trial court judgment finding that “compensation payments are in lieu of both wage loss and damages for pain and suffering, and that recovery of both compensation payments and damages for pain and suffering is double recovery under the workmen’s compensation law.” Senac v. Sandefer, 405 So.2d 1128, 1131 (La.App. 1st Cir. 1981). This court granted writs to review the correctness of that decision. 407 So.2d 747 (La.1981).

The Insurance Guaranty Association Law, La.R.S. 22:1375 et seq., was enacted by the legislature in 1970 as a response to the serious problem of insurer insolvencies. Ursin v. Insurance Guaranty Association, 412 So.2d 1285 (La.1982) (on rehearing). The purpose of the Insurance Guaranty Association Law is stated in La.R.S. 22:1376 as follows:

The purpose of this Part is to provide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies, and to provide an association to assess the cost of such protection among insurers.

La.R.S. 22:1378 provides for a liberal construction of the act to effectuate the designated purpose “under section R.S. 22:1376, which shall constitute an aid and guide to interpretation.”

La.R.S. 22:1382(1)(b) provides that the Louisiana Insurance Guaranty Association shall:

(b) Be deemed the insurer to the extent of its obligation on the covered claims and to such extent shall have all rights, duties and obligations of the insolvent insurer as if the insurer had not become insolvent.

Accordingly, in the instant case, LIGA is to be treated as though it were the insurer that issued Mr. Sandefer’s policy. Billeaudeau v. Lemoine, 386 So.2d 1359 (La.1980); Hickerson v. Protective National Insurance Company, 383 So.2d 377 (La.1980). LIGA contends, however, that it is entitled to a credit for the benefits which Senac has received from his employer’s compensation insurer, by virtue of La.R.S. 22:1386, entitled “Nonduplication of recovery,” which provides in relevant part as follows:

“(1) Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall be required to exhaust first his right under such policy. Any amount payable on a covered claim under this Part shall be reduced by the amount of any recovery under such insurance policy.”

The purpose of this provision is to prevent double recovery. Hickerson, supra, at 379. The issue before this court, therefore, is whether double recovery will result from a judgment against a third party tortfeasor awarding a claimant, who has already received workers’ compensation disability benefits, general damages which do not include lost wages or medical expenses.

The Workers’ Compensation Act was described by this court in Atchison v. May, 201 La. 1003, 10 So.2d 785 (1942), as social legislation passed for the joint benefit of labor and management.

“In order that this end might be accomplished, the Legislature provided for sacrifices to be made by both the employer and the employee. The employee was required to waive the right granted him under the general law, Article 2315 of the Civil Code, in consideration of receiving a fixed percentage of his wages during the period of his disability. The employer, on the other hand, was deprived of the defenses afforded to him by the general law and he was assured that, in case any of his employees were injured, they would be entitled to no more than the amount stipulated in the statute as compensation during the period of disability.” 10 So.2d at 788.

It can thus be seen that as between the employee and his employer, the employee surrenders his former right to full damages and accepts, instead, compensation measured as a percentage of his wages. See W. Malone & H. Johnson, Workers’ Compensation in 13 Louisiana Civil Law Treatise § 32 (1980); 1 A. Larson, The Law of Workmen’s Compensation § 1.10 (1981).

The same quid pro quo arrangement is not present in the relationship between the injured worker and a third party tort-feasor. La.R.S. 23:1101 authorizes the employee to proceed against any third party for damages even though he has been awarded compensation by his employer for the same injury. The third party is not entitled to a credit against the amount of damages awarded in the employee’s suit for the amount of compensation paid the employee which would have been claimed by the employer or insurer if there had been an intervention pursuant to La.R.S. 23:1102. Richoux v. Grain Dealers Mutual Ins. Co., 175 So.2d 883 (La.App. 3d Cir. 1965), certiorari denied 248 La. 366, 178 So.2d 656; Nunez v. Modern Woodcraft Co., 197 So.2d 339 (La.App. 4th Cir. 1967); Malone & Johnson, supra, at § 369. Professors Malone and Johnson observe that,

“This is merely a recognition of the well established rule in tort law that where an injured party proceeds against the wrongdoer for damages, he is entitled to an award for the full amount of his loss, even though the loss is partially or wholly made good by an insurer. Such a result does not amount in truth to ‘double recovery’ or at least is not one that is to be regarded as offensive. The primary objection to ‘double recovery’ is that it makes a wrongdoer pay twice for the same item, and thus he pays more than would be proper. But in this situation, the wrongdoer pays only what he would have been obliged to pay had the Act never existed: a complete tort recovery.”

We do not think that a different result should prevail merely because the third party’s insurer is insolvent. We therefore hold that a double recovery, in the contemplation of La.R.S. 22:1386(1), does not result where, as in this case, the recipient of workers’ compensation benefits receives a stipulated judgment for general damages which does not include lost wages or medical benefits. The provisions of the Insurance Guaranty Association Act must be interpreted to protect claimants and policyholders and to advance their interests rather than the interests of the association. La.R.S. 23:1376; Hickerson, supra; Arnone v. Murphy, 153 N.J.Super. 584, 380 A.2d 734 (1977).

Decree

The judgment of the court of appeal is reversed and the trial court judgment is reinstated.

CALOGERO, J., concurs and assigns reasons.

MARCUS and BLANCHE, JJ„ dissent and assign reasons.

CALOGERO, Justice,

concurring.

I concur in the majority opinion because it has been stipulated, and is not disputed, that the $4,900.00 judgment against the tortfeasor and LIGA is for general damages and does not include recovery for lost wages. However, if that point was disputed or if the employer’s compensation insurer had intervened, a different result might be in order.

MARCUS, Justice

(dissenting).

I agree with the court of appeal that “compensation payments are in lieu of both wage loss and damages for pain and suffering, and that recovery of both compensation payments and damages for pain and suffering is double recovery.” Hence, I consider that LIGA is entitled to a credit for the benefits which Senac received from his employer’s compensation insurer under La.R.S. 22:1386 (nonduplication of recovery). Accordingly, I respectfully dissent.

BLANCHE, Justice

(dissenting).

In the instant case, plaintiff recovered workmen’s compensation benefits from Employers Commercial Union Insurance Company. By allowing plaintiff to also recover against LIGA, the majority has ignored the express language of R.S. 22:1386, which provides in pertinent part:

§ 1386. Nonduplication of recovery
(1) Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall be required to exhaust first his right under such policy. Any amount payable on a covered claim under this Part shall be reduced by the amount of any recovery under such insurance policy, (emphasis added)

LIGA was entitled to receive a credit for the workmen’s compensation benefits collected by plaintiff. Because the appellate court’s opinion was correct, I respectfully dissent.

      . The employer’s compensation insurer failed to intervene in this action and is thus barred from claiming reimbursement of the benefits paid to the plaintiff. Roche v. Big Moose Oil Field Truck Service, 381 So.2d 396 (La.1980); Todd-Johnson Dry Docks v. City of New Orleans, 55 So.2d 650 (La.App. Orleans 1951). An intervention by the compensation insurer would be barred by La.R.S. 22:1379(3) which defines “covered claim” (those claims LIGA will be obligated to pay) and specifically excludes from that definition “any amount due any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise.” See, Ursin, supra. The result reached in this opinion will not, therefore, lead to a “shuffling of funds among insurance companies.” Ferrari v. Toto, 9 Mass.App. 483, 402 N.E.2d 107 (Suffolk 1980).

      . I think the majority is incorrect in its implication (in footnote 1) that an intervention by the compensation insurer would, in this litigation, be barred by La.R.S. 22:1379(3). While it is true that that provision would prevent the compensation insurer from recovering from LIGA, it would not prevent it from recovering from the tortfeasor. See Ursin v. Insurance Guaranty Association, 412 So.2d 1285 (La.1982), On Rehearing.


author: AUGUSTINE, Justice Ad Hoc .

text:
    STATE of Louisiana v. Dora Mae SAVOY.
    No. 81-KA-2924.
    Supreme Court of Louisiana.
    June 21, 1982.
    Rehearing Denied Sept. 3, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, III, Dist. Atty., Robert Brinkman, Asst. Dist. Atty., for plaintiff-appellee.
    Lawrence B. Sandoz, III, Leslie J. Schiff, Sandoz, Sandoz & Schiff, Opelousas, for defendant-appellant.
   AUGUSTINE, Justice Ad Hoc .

The defendant, Dora Mae Savoy, was charged by grand jury indictment of March 9, 1981 with the second degree murder of Francis Sam, Jr. A jury of twelve heard this case on June 24-26, 1981 and returned a verdict of guilty as charged. The defendant was later sentenced to life imprisonment. On appeal, she raises ten assignments of error.

By the first assignment of error, appellant urges that her conviction should be reversed and a judgment of acquittal entered by this court, due to the State’s failure to bear its burden of proving her guilt beyond a reasonable doubt.

I.

Francis Sam, Jr. and Dora Mae Savoy lived together in a common-law arrangement in Sunset, Louisiana. On the night of February 10, 1981, Ms. Savoy shot, and killed Francis Sam, Jr. with one bullet to the chest. The shooting took place on the front porch of the couple’s residence. There were no witnesses other than the defendant herself.

Joseph Sam, the victim’s brother, testified that on the night of February 10, he and John Eric Lewis had just left a pool hall and were walking towards the defendant’s and victim’s residence when a shot was fired. The men continued walking in the direction of the shot, and upon reaching the sidewalk in front of Savoy’s house, the defendant called out to them. They saw the defendant Savoy on the front porch, standing over Francis Sam’s body. The victim’s feet were toward the front door of the residence; his head was almost on the top of the steps leading up to the porch. According to John Lewis, the defendant appeared to be very shaken, and told him that Francis Sam had accidentally shot himself while playing with a gun.

Joseph Sam, John Lewis and Dora Mae Savoy carried the victim from the front porch and placed him in the victim’s pick-up truck parked in the front yard. Savoy then drove the victim to the Sunset Police Station, unaccompanied by either Joseph Sam or John Lewis. She still carried the pistol in her left hand while driving the truck with her right. When she neared the station, she threw the gun out of the driver’s window and into a ditch on the opposite side of the street.

Upon arrival at the police station, Savoy gave a brief, unsolicited account of the incident to Officer Tim Allman. She told him that “Tatoo” (Francis Sam, Jr.) had just shot himself accidentally and was out in the truck, perhaps dying. She gave no further explanation. When Officer Allman went to the truck to determine the victim’s condition, he found no vital signs. Upon being informed of Francis Sam’s death, Savoy became hysterical and ran from the police station, finally collapsing about a block and a half away.

Shortly afterward, Officer Boss removed the victim’s body from the front passenger seat of the truck. While doing so, he discovered a closed, sheathed knife on the floorboard. It belonged to the victim, and was later to become a key piece of evidence in the prosecution’s case.

Later that night, Detectives Roy Mallet and Rene Spryer arrived at the station and, after advising the defendant of her Miranda rights, conducted an interrogation. This time, Savoy gave a different account of the shooting, stating, in essence, that Francis Sam was shot by another man in an argument over whiskey.

The next afternoon, Savoy gave a written statement to Detective Robert Daly, wherein she admitted for the first time that Francis Sam was killed while struggling with her over a gun. She stated that she and the victim had argued at a bar earlier that night, and that he came home drunk and threatening. She refused to allow him in the house, she said, but the victim was persistent in his efforts to get in, even to the point of repeatedly kicking on the doors, while cursing her the whole time. Looking out on the porch, Savoy saw that Francis Sam was armed with a knife. In response, Savoy said she went to her purse and retrieved her own gun. When she again looked out through the front door, Francis Sam thrust the knife at her, then grabbed her by the neck. A struggle ensued, each party armed and wrestling with the other. During the fight, as Savoy told it, the gun went off. Francis Sam fell to the porch, shot in the chest. Joseph Sam and John Lewis then came upon the scene and helped her put the victim in the truck. The defendant drove alone with him to the police station. Savoy admitted that along the way, she became scared and threw the gun out of the truck.

Detective Daly noted during the taking of this statement that the defendant showed no signs of having been in a struggle — her clothes were not torn, her body had no obvious bruises or cuts. Their suspicions about Ms. Savoy growing, policemen returned to the scene for further investigation. On the way, they combed the streets of the route to the police station taken by Savoy the night before. They found Sa_-voy’s discarded weapon in a ditch. Further inspection of the scene itself revealed no more significant evidence.

The coroner’s examination did reveal evidence of some value. It was discovered that the bullet which killed Francis Sam was fired from a distance of between six inches and four feet and had a horizontal trajectory through the victim’s body. Although the coroner removed a bullet from the body, subsequent ballistics tests were unsuccessful in matching the bullet with the defendant’s gun, due to the lack of identifying striations on the pellet.

The above-stated facts comprised the whole of the State’s case-in-chief against Dora Mae Savoy. There were no witnesses to the shooting — the evidence was entirely circumstantial.

II.

After the State rested its case, the defendant took the stand and told yet another version of the facts — her fourth. While she maintained that Francis Sam had been shot in a fatal struggle over the gun, she gave a markedly different account of the events leading up to the shooting. Savoy told the jury that on the night of February 10, she and the deceased had a heated argument at a bar. The dispute concerned whether Francis Sam was sober enough to drive home. Savoy kept the keys to Sam’s truck, despite his violent protest, and went home to cook- supper. Later that night, when Francis Sam returned home (with the assistance of a Sunset policeman), the argument resumed inside the house. Savoy retreated to her own bedroom and locked the door. There she finished supper while Francis Sam banged and kicked the bedroom door, angrily demanding that she come out and continue the fight. After a while, he tired of badgering her and left the house, or so she thought. It was late by that time, and Savoy decided to secure the house for the night. As she entered the living room to lock the front door, she reached into the sofa to retrieve the gun which she had customarily hidden there. Holding the gun in her left hand, she was about to latch the door with her right, when Francis Sam suddenly burst through the door and attacked her with a knife. In the struggle for control of the weapons, Savoy’s gun discharged, firing a bullet into Francis Sam’s chest.

The remainder of the defendant’s testimony was similar to the statement she had previously given to Officer Daly, except for the remarkable explanation as to why the gun happened to be found in the ditch; she stated that while driving the truck and at the same time trying to prop up the dying victim, she lost control of the vehicle. The gun flew out of her left hand and into the street.

Additional damage to Savoy’s credibility as a result of that explanation was probably minor — a serious question as to her veracity had been already raised by the fact that each of Savoy’s accounts of the incident was radically different. But the critical blow to her credibility came on cross examination when she tried to explain why the victim’s knife, supposedly the weapon used against her, was found in the truck rather than on the porch, as would be expected. Savoy told the jury that the knife remained in Francis Sam’s grasp even after he had been shot, and even after he was carried from the porch to the truck. She surmised that he dropped the knife to the floorboard en route to the police station. Not only was such an explanation utterly incredible, but also flatly contradicted by Joseph Sam (the victim’s brother), who had helped to carry the victim to the truck. He stated that although he had seen Francis Sam carrying his knife earlier in the day, closed and in a scabbard, he did not see the knife at all on the night of the shooting, either on the porch or in the victim’s hand.

The only real support for Savoy’s claim of self-defense was provided by testimony concerning the victim’s character and prior behavior. Savoy stated that following the argument at the bar, Francis Sam had come home drunk, angry and carrying a bottle of liquor. Savoy further stated that when Francis Sam drank to excess, which was a frequent occurrence, he became argumentative and even violent. This fact was certified through the testimony of Officer Robert Daly, who knew Sam to be a problem drinker with several arrests for disturbing the peace, public intoxication and battery. Chief Boss testified that he had arrested Francis Sam sixteen times on a variety of charges, principally, driving while intoxicated, fighting and disturbing the peace.

There was little doubt that Francis Sam had been drinking heavily on the day of the shooting. Joseph Sam testified that he and Francis and J. S. Taylor had been drinking together early that afternoon. John Lewis testified that he and Francis Sam had a few drinks together later that night at a pool hall. Savoy herself testified that the original argument took place in a bar over the question of Francis Sam’s capacity to drive home. Later, Officer Henry drove the victim home from a liquor store — he was carrying a bottle of Crown Royal.

There was also evidence that on the day of the shooting, Francis Sam was in one of his belligerent moods. Maxine Plumbar testified that that afternoon, the victim had caused a disturbance at a gas station, spinning the tires of his vehicle so as to throw rocks and gravel against her windshield. When Plumbar said something to him about his display of temper, he cursed her and drove off.

III.

The State has the entire and affirmative burden of proving beyond a reasonable doubt that a homicide was not perpetrated in self-defense. State v. Collins, 306 So.2d 662 (La.1975); State v. Patterson, 295 So.2d 792 (La.1974). The defendant who raises the issue of self-defense does not assume any burden of proof whatsoever, Collins, supra; Patterson, supra.

At the close of the trial there remained only one ultimate issue for the jury to decide: did the State prove beyond a reasonable doubt and, since this was a purely circumstantial case, to the exclusion of every reasonable hypothesis of innocence, that Dora Mae Savoy did not kill Francis Sam, Jr., in self-defense? Stated another way, did the State prove that Francis Sam, Jr., did not attack Dora Mae Savoy in such a manner as to give rise to a reasonable belief in her that she was in imminent danger of losing her life or receiving great bodily harm and that killing Francis Sam was necessary to save herself from that danger?

Our review of the jury’s decision of this critical issue is governed by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which held that the relevant question which an appellate court must answer in cases such as this is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

We shall first consider the State’s case-in-chief, as set out in part I of this opinion. An analysis of that evidence reveals that even if every fact relied upon by the State to prove its prima facie case were accepted as true, the defendant’s guilt has not been proven.

Viewing the evidence in a light most favorable to the prosecution, a rational juror might conclude that Savoy fired the shot with the specific intent to kill or to do great bodily harm. However, none of the physical evidence bears on whether or not Francis Sam, Jr. attacked Ms. Savoy on the night of February 10 — neither the trajectory of the bullet, nor the distance from which the bullet was fired, nor the fact that the victim’s knife was found in the truck (and not on the porch), nor the fact that Savoy did not appear to have been in a struggle — none of these facts is inconsistent with the reasonable possibility of self-defense.

The addition of testimonial evidence does not solve the matter for the State. We grant that Savoy was shown to be a consummate liar through the testimony of several policemen who recounted the various conflicting scenarios told by the defendant. But even the total destruction of Savoy’s credibility does not entail the creation of affirmative, substantive evidence which weighs on the side of the State. Without such evidence, the State cannot be held to have proved lack of self-defense beyond a reasonable doubt.

In the absence of circumstantial evidence to prove the defendant’s guilt, that is, the lack of self-defense, we are left with only the defendant’s various accounts. The most that any juror could rationally conclude was that the defendant was lying, and that no one except the defendant will ever know to a moral certainty the truth as to what happened on the night of February 10,1981. In the absence of such a moral certainty, we must find no rational juror could have regarded the State as having proved its case beyond a reasonable doubt.

Accordingly, the judgment of conviction and the sentence of Dora Mae Savoy are hereby set aside and annulled, and a judgment of acquittal is entered on her behalf.

CONVICTION AND SENTENCE SET ASIDE AND ANNULLED, JUDGMENT OF ACQUITTAL.

MARCUS, J., and CIACCO and GAU-DIN, JJ. ad hoc, dissent.

       Judge Gaudin of the Court of Appeal, Fifth Circuit and Judges Ciaccio and Augustine of the Court of Appeal, Fourth Circuit, participated in this opinion as Associate Justices ad hoc, joined by Chief Justice Dixon, and Associate Justices Marcus, Blanche, and Watson.

      . While the evidence does remove the reasonable possibility that Francis Sam, Jr., attacked with a knife, it does not eliminate the reasonable possibility that he attacked her in some other physical manner and with such force as to warrant Savoy’s use of deadly force in self-defense.


author: DENNIS, Justice,

text:
    STATE of Louisiana v. Don ANDERSON.
    No. 81-KA-2836.
    Supreme Court of Louisiana.
    June 21, 1982.
    Rehearing Denied Sept. 3, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Michael M. Simpson, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    H. CHARLES GAUDIN, Justice Pro Tem.

       Judge H. Charles Gaudin of the Court of Appeal, Fifth Circuit, and Judges Israel M. Augustine, Jr. and Philip C. Ciaccio of the Court of Appeal, Fourth Circuit, participated in this de-cisión as Associate Justices Ad Hoc joined by Justices Calogero, Dennis, Watson and Lem-mon.

   Defendant Don Anderson was convicted of purse snatching in violation of LSA-R.S. 14:65.1 and he appeals on two assignments of error:

(1) That the evidence was insufficient to prove purse snatching and that, at most, he was guilty of theft; and

(2) That the trial judge erred in not reading a requested jury charge.

On January 1, 1981, Martha Menefee and a friend, Louis McRedmond, were in the Superdome watching the Sugar Bowl football game. They were seated in the very top row, with Miss Menefee’s purse on the floor between her legs. Directly behind their seats was an aisle or passageway.

Miss Menefee felt a vibration, she said, and she “... looked down and my purse was gone.” She advised McRedmond, who immediately began searching the adjacent areas and he found “. . . the defendant bending over, going through her purse ...”

McRedmond said that Anderson v/as with two other boys, but they escaped as McRed-mond “grabbed” Anderson. Before the purse was taken, both McRedmond and Miss Menefee had noticed Anderson and the two others walking up and down the aisle.

Anderson slipped out of his shirt and got away from McRedmond but he was apprehended moments later.

LSA-R.S. 14:65.1 reads:

“Purse snatching is the theft of anything of value contained within a purse or wallet at the time of the theft, from the person of another, or which is in the immediate control of another, by use of force, intimidation, or by snatching, but not armed with a dangerous weapon.”

Anderson contends that there was no force or intimidation and that the legal definition of “snatching” is not certain. Webster’s dictionary, he points out, defines snatching as a “sudden seizure,” and this implies, defendant suggests, a physical confrontation.

The State, on the other hand, contends that the statute is unambiguous and does cover the instant situation. While Miss Me-nefee was not actually holding the purse, it was within her immediate control and it was suddenly seized.

We agree with the prosecution, being of the opinion that “snatching” does not require an actual face-to-face confrontation and is distinguished from “use of force” and “intimidation” by the statute’s very wording.

Anderson also complains because the trial judge refused to consider this charge:

“It is your responsibility to distinguish theft from purse-snatching. Purse-snatching is an offense against property by misappropriation with violence to the person. Theft is an offense against property by misappropriation without violence to the person. To find the defendant guilty as charged, you must find beyond a reasonable doubt that there was force directed against the person, and not just the force involved in the mere lifting and carrying away of the purse.”

This is inaccurate in that purse snatching does not require either “misappropriation with violence to the person” or “force directed against the person.” The trial judge properly refused this charge.

Although Anderson waived a jury, he had the right to submit charges to the trial judge and to thereby ascertain the extent of the judge’s familiarity with pertinent legal principles. See State v. Reeves, 342 So.2d 605 (La.1977).

We find both assignments of error without merit and we affirm Anderson’s conviction and seven-year sentence.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I concur in the majority opinion only insofar as its narrow holdings, viz., (1) that there was sufficient evidence of a “snatching,” and (2) that the trial court did not err in failing to give the suggested jury charge because it was not wholly correct. The defendant did not raise the issue of whether La.R.S. 14:65.1 is unconstitutionally vague. This case does not resolve that question or definitively interpret the statute.


author:
PIKE HALL, Jr., Justice Ad Hoc.
     DENNIS, Justice,

text:
    Sharon W. LAMBERT and Donald G. Lambert v. MARYLAND CASUALTY COMPANY.
    Nos. 81-C-2750, 81-C-2756.
    Supreme Court of Louisiana.
    June 21, 1982.
    Rehearing Denied Sept. 3, 1982.

      Arthur J. Lentini, Hall, Lentini, Moule-doux & Wimberly, Metairie, for applicant in No. 81-C-2750 and for respondents in No. 81-C-2756.
    Fred Clegg Strong, Guy B. Scoggin, Scoggin, Strong & Kuhner, New Orleans, for applicant in No. 81-C-2756 and for respondents in No. 81-C-2750.
    Marian Mayer Berkett, Matt J. Farley, Deutsch, Kerrigan & Stiles, New Orleans, for respondents in both cases.
   PIKE HALL, Jr., Justice Ad Hoc.

Writs were granted to review a decision of the court of appeal reversing the district court’s judgment for $9,866,739.50 in favor of plaintiffs and dismissing plaintiffs’ suit for damages. Finding the result reached by the court of appeal on the merits of the case to be correct, we affirm the judgment of that court.

The factual background and procedural history of this litigation are chronicled in detail in the court of appeal opinion and in the reasons for judgment of the district court attached as an appendix to a dissenting opinion in the court of appeal. Lambert v. Maryland Cas. Co., 403 So.2d 739 (La.App. 4th Cir. 1981). There are other reported cases involving the same parties. See Bank of New Orleans & Tr. Co. v. Lambert, 373 So.2d 550 (La.App. 4th Cir. 1979), writ denied, 376 So.2d 959 (La.1979); Lambert v. Cronvich, 373 So.2d 554 (La.App. 4th Cir. 1979), writ denied, 376 So.2d 960 (La.1979); Maryland Cas. Co. v. Lambert, 612 F.2d 229 (USCA 5th Cir. 1980); Bank of New Orleans and Trust Co. v. Lambert, 409 So.2d 294 (La.App. 1st Cir. 1982).

Donald G. Lambert and his wife, Sharon W. Lambert, filed this suit against Maryland Casualty Company seeking $33,000,000 in damages allegedly resulting from actions by Maryland, surety and creditor of a road contracting corporation wholly owned by plaintiffs, which brought about the financial collapse and bankruptcy of the corporation. After trial, the district court found that Maryland acted in bad faith and without legal right when, on October 1, 1975, it notified the state and other public bodies for which the Lambert corporation was performing road construction contracts to pay all contract funds to it and that Maryland’s actions triggered the financial downfall of the corporation. Damages were calculated on the basis of the trial court’s assessment of the value of plaintiffs’ stock in the construction company and a related corporation. Maryland appealed. The trustee of the bankrupt Lambert corporation, who unsuccessfully attempted to intervene in the trial court after judgment was rendered, also appealed. The court of appeal, in an exhaustive opinion which dealt with numerous issues raised by the parties, ultimately determined that Maryland had the legal right under the contracts between the parties and good business reasons to take the action it did and, hence, there was no liability. Plaintiffs and the trustee applied for writs, which were granted.

Plaintiffs set forth the following assignments of error:

(1)The court of appeal erred in substituting its judgment for that of the trier of fact in the absence of a finding of “manifest error”;

(2) The court of appeal erred in ruling that the plaintiffs should not be allowed to proceed individually to recover damages caused by the defendant;

(3) The court of appeal erred in ruling that Maryland had a perfected assignment of the progress payments due Lambert as of October 1, 1975;

(4) The court of appeal erred in ruling that Maryland had a right to contract funds as of October 1, 1975, by reason of legal subrogation;

(5) The court of appeal erred in ruling that Maryland is not liable to Lambert for a bad-faith breach of a fiduciary relationship; and

(6) The court of appeal erred in ruling that Maryland did not actionably abuse any of the rights it may have possessed.

The trustee in bankruptcy essentially adopts the plaintiffs’ assignments of error relating to Maryland’s liability, but additionally urges that the court of appeal erred:

(1)’In affirming the denial of the trustee’s petition to intervene in the district court; and

(2) In holding there was not sufficient evidence in the record to justify substituting the trustee for the plaintiffs as the party entitled to judgment in this case.

In response, Maryland urges the correctness of the court of appeal decision finding no liability on the merits of plaintiffs’ claims. Maryland further urges its other defenses asserted in the trial court and court of appeal, including:

(1) Plaintiffs’ claims have prescribed because this suit was not filed within one year after the occurrence of the events complained of;

(2) Judgments rendered in related federal court actions are res judicata as to the plaintiffs’ claim for damages;

(3) Plaintiffs cannot assert a cause of action belonging to the bankrupt corporation;

(4) Even if Maryland had no right to take the action it did, such action did not cause the financial collapse of the corporation or plaintiffs’ damages;

(5) The trustee’s intervention is untimely; and

(6) The damages awarded by the district court are excessive.

The primary issue in this case is whether on October 1, 1975, under the contractual relationship between the parties, there existed an effective assignment by the Lambert corporation to Maryland of contract funds due Lambert, thereby giving Maryland the legal right to direct the state and other public bodies to make payment of the contract funds to it as assignee. A second issue is whether Maryland, in exercising that right, breached its obligation of good faith performance of the contracts with Lambert or otherwise abused the rights it held. We conclude the court of appeal correctly decided these issues which are dispos-itive of the case.

The Lamberts were the sole stockholders of a corporation known as Donald G. Lambert Contractor, Inc., one of the state’s largest road construction companies. In the normal course of business the corporation was required to furnish public works bonds under LSA-R.S. 38:2241, guaranteeing performance and payment. For many years Maryland had acted as surety on all of the corporation’s bonds. In connection with the issuance of each bond the corporation and the Lamberts individually routinely executed an indemnifying agreement whereby the corporation and the Lamberts agreed to indemnify Maryland for any losses Maryland might suffer because of its execution of the bond being issued or any bonds previously or subsequently issued.

The indemnity agreement contains an assignment of the indemnitors’ right, title, and interest in and to all tools, plant equipment, and materials, and in and to all subcontracts connected with the bonded contract, the assignment to be enforceable and effective should the indemnitors fail to discharge any obligations incurred in the performance of the contract, or be unable to complete the work in accordance with the terms of the contract, or in the event of any default on the part of the indemnitors under the contract, or in the event of a claim or default in connection with any other former or subsequent bonds executed for the indemnitors. Particularly pertinent to this litigation, the indemnifying agreement provides:

“In the event of claim or default under the bond(s) herein applied for, or in the event the undersigned shall fail to fulfill any of the obligations assumed under the said contract and bond(s), or in the event of claim or default in connection with any other former or subsequent bonds executed for us or at our instance and request all payments due or to become due under the contract covered by the bond(s) herein applied for, shall be paid to the Company — and this covenant shall operate as an assignment thereof and the residue, if any, after reimbursing the Company as aforesaid, shall be paid to the undersigned after all liability of the Company has ceased to exist under the said bond(s), and the Company shall at its option be subrogated to all rights, properties and interest of the undersigned in said contract, or contracts .. .. ”

In the spring of 1974 the corporation was experiencing a severe cash flow problem because of high interest rates, the oil embargo and resulting shortage and higher cost of petroleum products, bad weather which delayed performance of and payment on major projects, and other factors. At that time the corporation had outstanding unsecured loans of $2,200,000 from the Bank of New Orleans & Trust Company and $547,000 from Hibernia National Bank in New Orleans. BNO, the Lamberts’ principal bank, would not lend additional money without Maryland’s guarantee of payment of any additional funds advanced and the furnishing of collateral to secure the existing indebtedness.

In May 1974 the corporation had in excess of $22,000,000 of unfinished construction contracts. In order to generate the cash needed for the corporation to continue in business an agreement was reached between the Lamberts, BNO, and Maryland, and was reduced to writing on May 31, 1974. The letter agreement signed by the Lamberts recites that because the Lambert corporation and its affiliated firms and controlling stockholders are in immediate need of financial assistance because of a cash shortage, Lambert requests that Maryland assist Lambert by guaranteeing a loan of up to $2,000,000 principal amount to be made to Lambert by the Bank of New Orleans & Trust Company. To induce BNO to extend payment terms on its existing indebtedness and to induce Maryland to guarantee and BNO to advance the additional $2,000,000, Lambert agreed, inter alia, as follows:

“1. LAMBERT recognizes that the assignment of contract funds, materials, equipment and rights in subcontracts made by LAMBERT to Maryland in the various indemnity agreements, heretofore executed by LAMBERT, are now execu-tory. LAMBERT confirms the aforesaid indemnity agreements and the effectiveness of those assignments as of this date and agrees to execute, when called upon by Maryland, whatever documents may be required to evidence to third-parties the effectiveness of the assignment.”

The agreement further provides that Lambert recognizes that Maryland is not bound to issue further bonds to Lambert but will consider requests for additional bonds as each additional application is made and that Maryland reserves the right to refuse, in whole or in part, such applications. The agreement also contains the following provision:

“The undersigned recognize that the indemnity agreements heretofore or hereafter given by LAMBERT to Maryland are not modified or altered by any of the transactions contemplated by this letter, except to the extent that the indemnities are made executory as set forth in paragraph numbered 1 above.”

The Lamberts further agreed to furnish additional security to secure both the existing and additional indebtedness including a pledge and assignment of all the stock in the Lambert companies, a chattel mortgage on all equipment and other movable property owned by the Lamberts, a pledge and assignment of all life insurance policies, a mortgage on any interest in real property owned by the Lamberts, and a pledge and assignment and/or chattel mortgage of whatever accounts receivable the Lamberts may have “other than the contract proceeds covered by the assignment already anticipated in item 1 above.” The document contains numerous other agreements on the part of Lambert relating to the handling and use of funds, furnishing of reports, and obligating the Lamberts to execute the work in progress with maximum dispatch, to reduce overhead, and to dispose of all unneeded equipment at the earliest possible date and at the best price available.

BNO agreed to lend the Lambert corporation up to $2,000,000 principal amount and Maryland bound itself to BNO in solido for the repayment of the new loan. The loan was made and was thereafter renewed from time to time.

In December 1974 Maryland prepared notices of assignments of contract funds to be executed by Lambert and forwarded them to Lambert’s attorney for execution. The notices were to advise the highway department and other public agencies of the exec-utory assignments and authorize payment of contract proceeds to Lambert as agent of Maryland. Lambert declined to execute the notices, advising Maryland that if they were signed and delivered to third parties they would likely trigger adverse action by Lambert’s creditors. Maryland apparently acquiesced, did not pursue the matter, and the notices were never executed.

By the spring of 1975 the Lambert corporation’s financial condition had grown worse. In May 1975 Maryland guaranteed a $250,000 note held by Hibernia and Hibernia was given the right to share in the collateral pool created in the May 31, 1974 agreement.

During 1975 Lambert was pursuing claims in excess of $10,000,000 against the state for amounts Lambert claimed were due under its contracts with the state. Suits had been filed by Lambert on most of the claims. Sometime between May and July the state offered Lambert $2,000,000 in settlement of all pending claims. The settlement was not accepted by Lambert, who made a counter offer of $5,000,000 to $6,000,000. The counter offer was not accepted by the state and the $2,000,000 offer remained viable. Lambert remained hopeful and had some encouragement from the governor that the settlement offer would be increased.

Also during 1975 claims exceeding $1,000,000 were made by various trade creditors of Lambert of which claims Maryland was given notice. Most of the claims were disputed and defended by Lambert. It was necessary for Maryland to bond out liens filed in connection with some of the claims, increasing its exposure on its performance and payment bonds.

In August 1975 Maryland agreed to consider advances of additional funds to Lambert and the parties’ agreement was reduced to writing on August 20. The letter agreement recites that Lambert, who is in immediate need of cash, requests Maryland to advance from time to time as needed by Lambert, cash not to exceed $2,000,000. The letter provides that Maryland will not be obligated to grant the requests of Lambert but may in its sole discretion grant or refuse each or all of Lambert’s requests as Maryland may elect. The letter stipulates how funds advanced are to be used and provides that the advances made by Maryland shall be repaid on or before January 30, 1976. Lambert recognized that Maryland was not bound to execute any additional bonds but would consider requests for the execution of additional bonds with Maryland reserving the right to refuse in whole or in part such applications. Particularly pertinent to this litigation the letter provides:

“(4) Under the existing executory assignment heretofore made by LAMBERT on March 31, 1973 (sic) to MARYLAND, which the parties reconfirm, MARY-' LAND has an assignment of all funds recovered by or to be recovered by LAMBERT in connection with any construction contracts of LAMBERT, or any of the persons included in that collective reference. LAMBERT anticipates that within a short period of time, it may recover substantial sums on claims and suits for extras and damages now pending against the State of Louisiana and other governmental bodies, which claims do in fact arise out of said construction contracts. If recovery is effected, LAMBERT will pay the sums recovered directly to MARYLAND first to the repayment of any advances MARYLAND may make under this letter agreement.
“(5) The undersigned recognize that the indemnity agreements heretofore or hereafter given by LAMBERT to MARYLAND are not modified or altered or extinguished by any of the transactions contemplated by this letter.”

Pursuant to this agreement Maryland advanced approximately 1.1 million dollars to Lambert before October 1, 1975, and another $600,000 — $700,000 between October 1 and October 14, or a total of approximately $1,800,000.

In the latter part of September 1975 Maryland officials decided that the Lambert situation was hopeless. A meeting was called for the morning of October 1 at which meeting Maryland advised Lambert and the banks that it had irrevocably decided to write no further bonds for Lambert, to make no further cash advances, and to send to the Department of Highways and other public agencies letters notifying them of Maryland’s rights of subrogation, exoneration, and assignment to the contract balances. Lambert and the bank officials were surprised at this unexpected action on the part of Maryland. Later that same day Maryland delivered the letter to the Department of Highways. Maryland realized this action would probably cause the financial collapse of the Lambert corporation but considered the action necessary in order to cut Maryland’s losses.

During the next few days after the October 1 meeting, discussions were held between Maryland, Lambert, and the banks in regard to allowing Lambert to continue with certain jobs. Maryland advanced an additional $600,000 to pay current bills. No agreement was reached and the Lambert corporation filed a Chapter XI petition under the Federal Bankruptcy Act. The attempted arrangement under Chapter XI failed and after an unsuccessful attempt to convert to a Chapter X proceeding the corporation voluntarily went into straight bankruptcy and a trustee was appointed. In the meantime the banks called their notes.

The bankrupt corporation’s unfinished contracts were later formally declared in default by the public agencies. Maryland undertook completion of the outstanding contracts.

When the October 1 action was taken there was approximately $10,000,000 of unfinished work on the outstanding public works contracts. The bank notes were not in default, being due on November 30, 1975. The advances under the August 20 agreement were not due for repayment until January 30, 1976. The Lambert corporation was not in formal default on any of its contracts, although the highway department had notified the company that it was making insufficient progress on one of the principal remaining contracts.

At the time the October 1 action was taken, the corporation had been losing money, that is, generating less income than needed to meet expenses, for almost two years. Over $3,000,000 in loan indebtedness, in addition to the over $2,700,000 previously owed to banks by the corporation, had been incurred since May 1974, and remained unpaid. Maryland was faced with the prospect of having to make substantial immediate additional cash advances to meet the corporation’s expenses, and made additional advances within the next few days after October 1. There existed substantial unpaid claims against the corporation, whether meritorious or not. The corporation’s claims against the state had not been settled as anticipated. The evidence does not establish that the balances to be earned by the corporation on the contracts would have met or exceeded expenses or would have been sufficient to pay the loan indebtedness to the banks and Maryland. Plaintiffs’ evidence that other arrangements for financing, bonding and completion of the contracts could have been made is scant and unconvincing.

The initial inquiry is whether Maryland, under its contracts with the corporation, had effective assignments of the contract proceeds which gave it the legal right to call upon the highway department and other public agencies to pay such proceeds to it as they came due. Plaintiffs argue that under the indemnifying agreements Maryland was entitled to be paid contract proceeds only in the event of default by the corporation on the contracts or if substantial claims were made against the bonding company, and that the corporation was not in default and substantial claims had not been made as of October 1, 1975. Plaintiffs argue that the May 31, 1974 agreement did not change or modify the requirement of default or claims as a condition to the effectiveness of the assignment.

On the other hand, Maryland argues, and the court of appeal held, that the May 31, 1974 agreement made the assignments effective and enforceable, and amounted to a waiver of the default or claims requirement.

Contracts must be construed in such a way as to lead to logical conclusions and to give effect to the obvious intention of the parties. St. Ann v. American Insurance Companies, 182 So.2d 710 (La.App. 4th Cir. 1966). They must be interpreted in a common-sense fashion, according to the words of the contract their common and usual significance. LSA-C.C. Art. 1946. A cardinal rule in the construction of contracts is that the contract must be viewed as a whole and, if possible, practical effect given to all its parts, according to each the sense that results from the entire agreement so as to avoid neutralizing or ignoring any of them or treating them as surplusage. LSA-C.C. Art. 1955; Polozola v. Garlock, Inc., 343 So.2d 1000 (La.1977); Reuter v. Reuter’s Succession, 206 La. 474, 19 So.2d 209 (1944); Solomon v. Hickman, 219 So.2d 330 (La.App. 1st Cir. 1969); Crow v. Southern Natural Gas Company, 210 So.2d 596 (La.App. 2d Cir. 1968), writ refused, 252 La. 834, 214 So.2d 160 (1968). Some effect is to be given to every word or clause if possible for a court may not impute to the parties the use of language without meaning or effect. American Mfg. Corp. v. National Union Fire Ins. Co., 203 La. 515, 14 So.2d 430 (1942); Gautreaux v. Harang, 190 La. 1060, 183 So. 349 (1938); Solomon v. Hickman, supra; Bruno v. McCabe, 71 So.2d 245 (Orl.App.1954).

When there is a doubt as to the true sense of the words of a contract, they may be explained by referring to other words or phrases used in the same contract. LSA-C.C. Art. 1948. Terms that present two meanings must be taken in the sense most congruous to the matter of the contract. LSA-C.C. Art. 1952.

Under the indemnifying agreements, the corporation agreed to indemnify and hold Maryland harmless from any and all liability for damages, loss, costs, charges and expenses incurred by reason of the execution of any bonds executed by Maryland for the corporation. For the protection of Maryland, the corporation assigned to Maryland all payments due or to become due under contracts covered by the bonds, such payments to be paid to Maryland in the event of claim or default under the bonds or failure of the corporation to fulfill its obligations under the contracts and bonds.

In the May 31, 1974 agreement, to induce Maryland to guarantee the $2,000,000 loan from Bank of New Orleans and for the protection of Maryland, the corporation recognized that “the assignment of contract funds ... made by LAMBERT to Maryland in the various indemnity agreements, heretofore executed by LAMBERT, are now executory.” The corporation confirmed “the effectiveness of those assignments as of this date” and agreed “to execute, when called upon by Maryland, whatever documents may be required to evidence to third-parties the effectiveness of the assignment.” The corporation recognized that the indemnity agreements were modified or altered “to the extent that the indemnities are made executory” as previously set forth in the agreement.

The meaning of the May 31, 1974 letter agreement is clear. The assignments of contract proceeds were made executory and effective as of the date of the letter, and the corporation agreed to sign notices to third parties of the effectiveness of the assignments. The assignments were made executory, effective and enforceable in the same manner as if there had been a default or claim as originally stipulated in the indemnity agreements, the original agreement being modified to that extent.

When it became necessary for Maryland to guarantee the $2,000,000 loan in order to obtain funds for the payment of expenses related to the corporation’s bonded contracts which the corporation could not otherwise pay, the situation was virtually the same as if Maryland had been called upon to pay claims directly to suppliers, subcontractors, and the like. It was only reasonable and logical for Maryland and the corporation to agree, as they did, that the assignments should, at that time, become effective as in the case of default or claims.

Plaintiffs argue that the word “ex-ecutory” means contingent and incomplete and that, consequently, the May 31 agreement did not have the effect ascribed to it by Maryland, or at best the agreement was ambiguous and that the ambiguity should be construed against Maryland, the drafter of the agreement. Plaintiffs do not, however, advance any suggestion as to what was meant or intended by the language used in the May 31 agreement, arguing only that the agreement did not change or modify the contingent nature of the assignment as stipulated in the original indemnifying agreements.

The word “executory” can have more than one meaning, depending on the context in which it is used. Here, the word does not stand alone, but is used with the word “effectiveness” and plainly means effective, or capable of being executed. The May 31 agreement by its express terms altered and modified the indemnifying agreements to the extent that it made the assignments of contract proceeds executory and effective as of that date. The intent and meaning of the agreement is further demonstrated by the corporation’s agreement to execute, at Maryland’s request, any documents necessary to notify third parties of the “effectiveness” of the assignments, notice to the debtor being required in order to make the assignment effective as to third parties. See LSA-C.C. Art. 2643; LSA-R.S. 9:3101, et seq.

The parties’ agreement was reconfirmed in the August 20, 1975 letter agreement which recognized that “under the existing executory assignment heretofore made by LAMBERT ... MARYLAND has an assignment of all funds recovered by or to be recovered by LAMBERT in connection with any construction contracts .. . . ”

As of May 31, 1974, Maryland had effective unconditional assignments of contract proceeds and the legal right to notify third parties from whom contract proceeds were due of the assignments and to require payment of the proceeds of the contracts to it as assignee. It is inconsequential that Maryland chose not to exercise that right until October 1, 1975, choosing instead at Lambert’s behest to forego notification to third parties as being in the best interest of both the corporation and Maryland. That this forebearance on the part of Maryland did not amount to a modification of the May 31, 1974 agreement or a waiver of its rights thereunder is evidenced by the confirmation of that agreement contained in the August 1975 agreement.

Maryland had the legal right under its contracts with the corporation to take the action it took on October 1, 1975 in notifying the highway department and other public bodies to make payment of contract proceeds to it under its assignments. Plaintiffs argue that even if Maryland had the legal right to take such action, Maryland, nevertheless, breached the fiduciary relationship owed by a surety to its principal, breached its obligation of good faith performance of their contracts, and abused any rights Maryland held under the contracts.

These contentions of plaintiffs were analyzed, discussed in detail and correctly decided by the court of appeal. See 403 So.2d at pages 754-757.

Maryland was obligated to act in good faith toward the Lamberts and the corporation under their contractual relationship, LSA-C.C. Art. 1934, and particularly under their relationship as surety-principal-indemnitors. Good faith did not, however, require that Maryland continue to support the corporation by the advancing of additional funds or by continuing to forebear in the exercise of its rights, contracted at arms length, for its own protection against further liability and loss as surety, guarantor, and creditor. It is certain from the evidence that the corporation could not have completed performance of the contracts and payment of expenses arising out of the contracts without additional financial support from Maryland, which support Maryland as surety had no obligation to provide. Maryland’s right to refuse requests for additional advances was expressly reserved in the August 1975 agreement. As previously stated, the evidence does not establish that the corporation could have made other arrangements for financing and bonding had Maryland informed Lambert of its intention to exercise its assignment rights prior to actually doing so; the evidence is to the contrary.

The same reasons apply to plaintiffs’ abuse of rights argument. Maryland had a legitimate and serious interest in the exercise of its legal rights at the time and in the manner it did so, reasonably believing that the corporation could not meet its obligations under its contracts and that continued financial support of the corporation would not prevent or reduce the ultimate loss to either the corporation or Maryland. See Morse v. J. Ray McDermott & Co., Inc., 344 So.2d 1353 (La.1977); Cueto-Rua, “Abuse of Rights”, 35 La.L.Rev. 965 (1965); Stone, Tort Doctrine, 12 La. Civil Law Treatise, § 261 (1977).

The holdings that Maryland had effective assignments of contract proceeds with the right to notify third parties thereof and to request payment thereunder, and that its legal rights were reasonably exercised in good faith without abuse thereof, are determinative of the case. Discussion of the other issues raised by the parties is unnecessary.

The judgment of the court of appeal is affirmed.

CALOGERO, J., dissents for reasons assigned by REDMANN, J., in dissent from the Court of Appeal Opinion.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

Although I agree that Maryland Casualty had the right to notify project owners of the assignment and to claim the proceeds due under the contracts, I nevertheless feel that the defendant’s actions constituted an abuse of rights.

This Court expressly recognized the doctrine of abuse of rights in Morse v. J. Ray McDermott & Co., Inc., 344 So.2d 1353 (La.1977), and has employed a similar analysis in earlier decisions. Higgins Oil & Fuel Co. v. Guaranty Oil Co., 145 La. 233, 82 So. 206 (1919); Onorato v. Maestri, 173 La. 375, 137 So. 67 (1931). See, generally, Herman, Classical Social Theories and the Doctrine of “Abuse of Right,” 37 La.L.Rev. 747 (1977); Cueto-Rua, Abuse of Rights, 35 La. L.Rev. 965 (1975); Maynard, Abuse of Rights in France and Quebec, 34 La.L.Rev. 993 (1974); Catala and Weir, Delict and Torts: A Study in Parallel (Part II), 38 Tul.L.Rev. 221 (1964); Comment, Abuse of Rights in Louisiana, 7 Tul.L.Rev. 426 (1933).

The trial court’s findings and the record in the instant case support a finding that Maryland’s exercise of its rights resulted in a breach of the duty of good faith it owed to Lambert. See, Lambert v. Maryland Casualty Co., 403 So.2d 739, 770 (Kliebert, Judge, concurring) (La.App. 4th Cir. 1981); Id. at 758 (Redmann, Judge, dissenting). The exercise of a right should not be protected or enforced when it is against moral rules, good faith, or elementary fairness. See, Illinois Central Gulf Railroad Co. v. International Harvester Co., 368 So.2d 1009, 1014 (La.1979); Cueto-Rua, supra, at 996-99.

       Judge Pike Hall, Jr. of the Court of Appeal, Second Circuit, participated in this case in the place of Justice Harry T. Lemmon, who recused himself because of his participation in the case while judge of the Court of Appeal, Fourth Circuit. LSA-C.C.P. Arts. 151 and 159.