source: Caselaw Access Project

author: ELLIS, Justice Ad Hoc . LEMMON, Justice, CALOGERO, Justice, DENNIS, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Norman PEARAA a/k/a Norman Pearah.
    No. 80-KA-2902.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    Dissenting Opinion Nov. 11, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Warren Hebert, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appel-lee.
    Lennie Perez, James Boren of Boren, Holthaus & Perez, Baton Rouge, for defendant-appellant.
   ELLIS, Justice Ad Hoc .

Norman Pearaa was charged by information with three counts of violation of the “endless chain statute,” R.S. 51:361, 362 and 371, by conducting “a system of merchandising slots on a pyramid board by means of an endless chain without having first obtained a permit in writing from the Louisiana Securities Commission.” Defendant filed a motion to quash, based on a number of grounds, which was denied. Thereafter, defendant withdrew his plea of not guilty, and entered a plea of guilty to counts two and three of the information, reserving his right to appeal the adverse ruling on his motion to quash. Count one was dismissed for lack of venue. After sentence was imposed, defendant appealed.

The motion to quash was heard on the following stipulation of fact:

“On May 22, 1980 Norman Pearah, along with other persons, conducted a meeting at Roger’s Auto Parts in Livingston Parish at which a pyramid scheme was initiated and subsequently transported into East Baton Rouge Parish for further propagation. Under this scheme a board was constructed in the form of a board attached to this stipulation. Fifteen were drawn, one through sixteen, excluded the number two, and the persons whose names appear on the board designated S-l, attached hereto, drew the respected numbers and each put up a thousand dollars, with the exception of the person who drew number 1, and paid five hundred ($500.00) dollars to the person immediately above them and five hundred ($500.00) dollars to the person at the top of the board. The number 2 spot, containing the initials PRS, was reserved for Norman Pearah, Charles Rogers, and Kevin Smith. Additionally, Norman Pearah put up the money for the spot filled by the name Richard Rosen, since Richard Rosen was not actually present at the meeting, and shared on a fifty-fifty bases the proceeds from the spot occupied by Kelly Sharp. Thereafter meetings were held at Faul’s Automotive Repair on Madeleine Court in East Baton Rouge Parish for the purpose of promoting this pyramid to sell additional spots on the lower rows as designated on S-l, attached hereto. At each of these meetings Norman Pearah was one of the principal speakers, explaining and promoting this concept with a view toward reaping financial benefits from it. As a result of his participation in these boards, Norman Pearah and his wife received at least fifty eight thousand dollars. When this board was filled completely, it split into four boards along the heavy vertical lines on S-l. Thereafter Jackie Pearah was at the top of two boards, with Richard Rosen being in the number 2 spot on one board and Norman Pearah being in the number 2 spot on the other board. Norman Pearah conducted the meetings for these boards, since Richard Rosen never came to Baton Rouge, and Norman Pearah actually received the financial proceeds from that slot.
“Each of the persons on the board was expected and encouraged to induce and entice other persons to put up a thousand dollars in order to get on this board. This scheme operates as an endless chain, since an order for the new people who come in to get the sixteen thousand dollars that the board promises to pay they must bring in, continually, additional people, and as more people are brought in it becomes necessary for a geometrically greater number of people to be brought in for each person to get his sixteen thousand dollars. It is impossible for every person to get sixteen thousand dollars without some people losing money.”

R.S. 51:361 provides as follows:

“As used in this Sub-part:
“ ‘Endless chain’ means any plan or scheme wherein any person sells, transfers, assigns, or issues to any person any right, property, ticket, coupon, certificate, contract, or other token, and wherein the purchaser, transferee or assignee thereof or the person to whom the same is issued undertakes or is required or is permitted to undertake for himself, or as the agent, representative, or attorney of such person to sell, transfer, assign, or issue to another any right, property, ticket, coupon, certificate, contract or other token which may under certain conditions entitle the purchaser or recipient thereof to any right, property, ticket, coupon, certificate, contract, or other token and wherein the purchasers, transferees or assignees thereof from the original purchasers, assignees, or transferees, or from subsequent purchasers, assignees, or transferees, are also given as a consideration for their entry into or participation in such plan or scheme and their purchase or receipt of such right, property, ticket, coupon, certificate, contract or other token, the right, privilege or obligation of making further sales, assignments, or transfers of any right, property, ticket, coupon, certificate, contract or other token.
“ ‘Dealer’ means each person carrying on and conducting any system of merchandising by means of an endless chain as a principal.
“ ‘Agent’ means every person engaged in the sale, transfer, issuing or assignment of any right, property, ticket, coupon, certificate, contract, or other token in connection with any system of merchandising by means of an endless chain otherwise than as a principal.
“ ‘Commission’ means the Louisiana Securities Commission.”

R.S. 51:362 provides as follows:

“No dealer or agent shall operate, conduct or carry on, or cause to be operated, conducted or carried on in Louisiana any system of merchandising by means of an endless chain without having first obtained from the commission a permit in writing authorizing the dealer or agent to do so.”

In this court, defendant makes two assignments of error. First, he argues that R.S. 51:361 and 362 are unconstitutional because they are overbroad. Second, he argues that the statutes are unconstitutionally vague.

ASSIGNMENT OF ERROR NO.l

Defendant contends that R.S. 51:361 and 362 are unconstitutional because they are overly board. As noted in State v. Cannon, 383 So.2d 389, 394 (La.1980), the overbreadth consideration “applies to statutory language which, though not vague, encompasses protected as well as unprotected conduct. Activities subject to state regulation may not be governed by unnecessarily broad means which invade protected freedoms.” NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964). We find no merit in the argument. It cannot be forcefully contended that the application of these statutes goes beyond the regulation of fraudulent conduct. The purpose of the licensing of such endeavors is to protect the public from irresponsible or fraudulent conduct on the part of those operating “endless chain businesses, and it does not purport to regulate other activities.” Defendant’s examples of such activities are not apposite.

ASSIGNMENT OF ERROR NO. 2

Defendant next contends that R.S. 51:362 is unconstitutionally vague. In State v. Cannon, supra, we said:

“A statute is unconstitutionally vague if men of common intelligence must guess as to its meaning. Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). To meet due process requirements, the language of the statute must give adequate warning of the conduct proscribed and must also provide standards to enable judges and juries to fairly administer the law. Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1951). “In State v. Dousay, 378 So.2d 414 (La., 1979) the court stated:
‘With regard to the requirement of adequate notice, this court has held that the constitutional guarantee that an accused shall be informed of the nature and cause of the accusation against him requires that a penal statute must describe unlawful conduct with sufficient particularity and clarity that ordinary men of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto. . . . The due process clause of the Louisiana Constitution has also been found to demand that words and phrases employed in statutes or regulations may not be so vague and indefinite that any penalty prescribed for their violation constitutes the taking of liberty or property without due process of law.... Similarly, a conviction under a criminal enactment which does not give adequate notice that the conduct charged is prohibited is violative of the due process clause of the Fourteenth Amendment of the United States Constitution. . . . (Citations omitted)
‘Both the constitutional guarantees of procedural due process and the right to a fair trial embodied in Article 1, § 16 of the Louisiana Constitution also require that a criminal enactment contain an ascertainable standard of guilt and that it “mark[s] boundaries sufficiently distinct for judges and juries to administer the law in accordance with the legislative will.” City of Baton Rouge v. Norman, 290 So.2d 865, 868 (La., 1974). The United States Supreme Court has held that “[a] law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it .. . leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.” Giaccio v. Pennsylvania, 382 U.S. 399, 403, 86 S.Ct. 518, 520-521, 15 L.Ed.2d 447, 450 (1965). The constitutional requirement of definiteness is satisfied when the language of a criminal enactment “has a generally accepted meaning such that a person of ordinary intelligence would be given fair notice of what conduct is forbidden.” State v. Defrances, 351 So.2d 133, 135 (La., 1977) or when “the crucial words [or] phrases in the criminal statute have a fixed and definite meaning for a person of ordinary intelligence.” State v. Cloud, 248 La. 125, 130, 176 So.2d 620, 622 (1965).’ 378 So.2d 416-417.”

In the instant case, defendant argues that the term “system of merchandising” is without well-defined meaning and that the definition of “endless chain” provided by La.R.S. 51:361 is “completely undecipherable.”

Stripped of language not applicable here, La.R.S. 51:361 defines an endless chain as:

“Any plan or scheme wherein any person sells ... to any [other] person any . .. contract . . ., and wherein the purchaser ... is permitted to . .. sell ... to another any . . . contract . . . which may under certain conditions entitle the purchaser ... to any . . . property . . . and wherein the purchasers . . . thereof from the original purchasers ... are also given as a consideration for their entry into . . . SUch plan or scheme .. . the right ... of making further sales .. .. ”

Though admittedly lacking clarity, this provision defines a chain distributor scheme as a sales device whereby a person making an investment is granted a license to recruit for profit one or more persons who are in turn also granted such a license to recruit.

We find, therefore, that R.S. 51:361 is not unconstitutionally vague, but that it adequately apprises the general public of the nature of an “endless chain” system of merchandising.

Webster’s Third New International Dictionary defines merchandising as “sales promotion as a comprehensive function including market research, development of new products, coordination of manufacture and marketing, and effective advertising and selling.” R.S. 51:361 includes both tangibles and intangibles as possible subjects of the system of merchandising. We find nothing vague about the use of that term as used in R.S. 51:362, but rather, that it has a clear and well-defined meaning. We find no merit in this assignment of error.

The conviction and sentence are therefore affirmed.

LEMMON and CALOGERO, JJ., concur and assigns reasons.

DENNIS, J., dissents with reasons.

LEMMON, Justice,

concurring.

I agree that the term “system of merchandising” is not vague and does not render R.S. 51:362 unconstitutional. It is arguable, however, that defendant’s conduct, as described in the stipulation, does not constitute the conducting or carrying on of a system of merchandising by means of an endless chain, for which a permit must be obtained, and that the evidence is therefore insufficient to support a conviction.

Nevertheless, defendant pleaded guilty to a violation of R.S. 51:362, reserving only his right to challenge the statute’s constitutionality on appeal. Under these circumstances it is inappropriate to consider on appeal the sufficiency of evidence supporting the conviction.

CALOGERO, Justice,

concurring.

I concur, being of the view that defendant’s conviction should be affirmed.

I do not agree, necessarily, with the constitutional analysis of the majority, although I find the statute valid as applied to this defendant. In dealing with the over-breadth doctrine, I prefer the language expressed in United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960): “one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.”

DENNIS, Justice,

dissenting.

I respectfully dissent. Defendant was convicted of operating, conducting or carrying on a system of “merchandising by means of an endless chain without first having obtained from the commission a permit in writing authorizing the dealer or agent to do so.” La.R.S. 51:362. However, there was no evidence that any merchandise was involved in the defendant’s conduct. Accordingly, if the defendant is guilty of any crime, it was not a violation of La.R.S. 51:362. Therefore, the motion to quash should have been granted.

       Judges Ellis, Lottinger, and Ponder of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Calogero, Dennis, Watson, and Lemmon.

      . Merchandising connotes the marketing and sales of merchandise. R.S. 51:361-362 clearly regulate use of a pyramid distribution plan by a manufacturer to sell large quantities of a product under the guise of an employment relationship. It is arguable, however, that the statutes do not apply to endless chain operations which do not involve the sale of merchandise.

      . In addition to questioning the constitutionality of the statute the motion to quash asserted that defendant’s conduct did not constitute a violation of R.S. 51:362. As stated above, that issue is not before the court on appeal because of the guilty plea’s expressly limited reservation.
      Moreover, the motion to quash is usually an inappropriate vehicle for contesting the sufficiency of the evidence, at least when the motion is not based on a bill of particulars which shows the grounds for the motion. See State v. Gerstenberger, 260 La. 145, 255 So.2d 720 (1971). Perhaps the stipulation of facts in this case was intended to serve the purpose of the determination of whether the bill of information charges a crime under R.S. 51:362, but we need not face the problem because of the express limitation of issues on appeal.


author: DIXON, Chief Justice. MARCUS, Justice

text:
    P. H. A. C. SERVICES, INC. v. SEAWAYS INTERNATIONAL, INC., Pennzoil Company and Pennzoil Producing Company. ACOUSTICAL SPRAY INSULATORS, INC. v. PENNZOIL COMPANY et al.
    Nos. 80-C-2915, 80-C-2928 and 81-C-0366.
    Supreme Court of Louisiana.
    Sept. 8, 1981.

      John E. Ortego, and Silas B. Cooper, of Cooper, Ortego & Woodruff, Abbeville, for plantiff-applicant.
    Amos H. Davis, and John W. Hutchison, of Voorhies & Labbe, Lafayette, Donald G. Cave, of Cave & McKay, Baton Rouge, Michael J. McNulty, Jr. of Bauer, Darnall, McNulty & Boudreaux, Franklin, for defendants-respondents.
   DIXON, Chief Justice.

This is a suit instituted by two unpaid subcontractors who supplied labor and materials for the construction of an offshore drilling platform living quarters unit; defendants are the general contractor and the owner. The primary issue is what, if any, privileges are available to these plaintiffs.

The unit involved in this litigation is a three story steel structure which was built on blocks at a construction site in St. Mary Parish. It was then transported by the owner, Pennzoil Company and Pennzoil Producing Company, and attached to an offshore drilling platform located in the Gulf of Mexico off the coast of Texas.

Pennzoil contracted with Seaways International, Inc. for construction of the unit. This contract was not recorded and no bond was required of Seaways as contractor. Seaways contracted with P. H. A. C. Services, Inc. for installation of plumbing, heating and air conditioning in the unit, and with Acoustical Spray Insulators, Inc. for labor and acoustical materials for the unit.

It is uncontested that P. H. A. C. and Acoustical performed their work in accordance with their subcontracts with Seaways, and that they have not been paid. They have timely filed lien affidavits, and have instituted suit to enforce their privileges.

Three statutes are relied upon by plaintiffs: R.S. 9:4801 et seq. (Private Works Act); R.S. 9:4861 et seq. (dealing with privileges on oil, gas and water wells); and, in the alternative, R.S. 9:4502 (dealing with privileges on movables). The trial court ruled that the only privilege available to plaintiffs is that granted by R.S. 9:4861 et seq. The Court of Appeal disagreed, and held that only the Private Works Act, R.S. 9:4801 et seq. is applicable. P. H. A. C. Services, Inc. v. Seaways International, Inc., 393 So.2d 117 (La.App. 1st Cir. 1980). This court granted writs on application of all parties. 398 So.2d 527 (La.1981).

R.S. 9:4861 et seq.

R.S. 9:4861 creates a privilege in favor of certain persons who perform work in connection with the exploration for oil, gas or water. That statute provides:

“Any person who performs any labor or service in drilling or in connection with the drilling of any well or wells in search of oil, gas or water, or who performs any labor or service in the operation or in connection with the operation of any oil, gas or water well or wells, has a privilege on all oil or gas produced from the well or wells, and the proceeds thereof inuring to the working interest therein, and on the oil, gas or water well or wells and the lease whereon the same are located, and on all drilling rigs, standard rigs, machinery, appurtenances, appliances, equipment, buildings, tanks, and other structures thereto attached or located on the lease, for the amount due for labor or service, in principal and interest, and for the cost of preparing and recording the privilege, as well as ten per cent attorney’s fees in the event it becomes necessary to employ an attorney to enforce collection. Any person who does any trucking, towing, or barging, or who makes any repairs, or furnishes any fuel, drilling rigs, standard rigs, machinery, equipment, material or supplies for or in connection with the drilling of any well or wells in search of oil, gas or water, or for or in connection with the operation of any oil, gas, or water well or wells, whether or not a producing well is obtained and whether or not such materials, machinery, equipment, services and supplies are incorporated in or become a part of the completed oil, gas or water well, has a privilege on all oil or gas produced from the well or wells and the proceeds thereof inuring to the working interest therein and on the oil, gas or water well or wells and the lease whereon the same are located, and on all drilling rigs, standard rigs, machinery, appurtenances, appliances, equipment, buildings, tanks and other structures thereto attached for drilling, equipment and operation of the well or lease, for the amount due for such trucking, towing, barging, repairs, fuel, drilling rigs, standard rigs, machinery, equipment, material, or supplies, in principal and interest, and for the cost of preparing and recording the privilege, as well as ten per cent attorney’s fees in the event it becomes necessary to employ an attorney to enforce collection thereof. This privilege is second in rank only to the privilege granted in favor of laborers.”

This statute confers a privilege to fur-nishers of labor or services whose work was done “in drilling or in connection with the drilling of any well,” or “in the operation or in connection with the operation of any oil, gas or water well.” The parties and the lower courts have focused on whether the work done by plaintiffs is the type of work intended to be protected by this statute. Specifically, the parties’ concern has been on whether it is significant that the work done by plaintiffs was performed at a construction site miles away from the lease site.

Pennzoil maintains that, since the unit was under construction and had never been brought to the well site, the unit was not identified with any particular lease. Plaintiffs point out that at all times the unit was designated for, and was eventually transported to, a specific well site.

It is clear from the statute that in some cases a lien might secure a claim for work performed away from the well or lease. The statute specifically includes persons who perform trucking, towing and barging, even though such services are generally performed away from the leased premises. In the case before us, the living quarters unit was constructed onshore because this was more practical than building it on the well location over the outer continental shelf; the unit at all times was designated for Pennzoil’s High Island Block 340 platform.

In interpreting statutes granting liens and privileges for working material furnished, courts have generally construed the statutes strictly against the claimant; the usual contest arises when ultimate liability will be placed on the owner, even though he might have previously paid the contractor, who failed to pay the claimant.

The claim in this case does not appear to be covered by R.S. 9:4861. First, the lien is granted to “any person . . . who performs any labor or service ... in connection with the operation” of any oil or gas well. The privilege, however, is on the production, the well, the lease, and “machinery, . . . equipment, buildings, tanks, and other structures thereto attached or located on the lease.” The lien is further granted for transporting or furnishing “material or supplies .. . for or in connection with the operation” of any well; however, the privilege granted is on the production, the well, the lease and “buildings, tanks and other structures thereto attached for the . . . operation of the well.”

It is clear that the building involved in this case was designed to be used “in connection with the operation” of oil or gas wells. It is not, however, clear that this statute was designed to govern the case where production equipment is constructed for use completely out of this state and on the high seas. The statute seems to contemplate that the lien be on the well, the lease, or property located on the lease. In this case, the building was ultimately located on a lease, but a lease which is completely outside the state. The statute does not purport to affect producing wells outside the State of Louisiana.

R.S. 9:4861 is therefore not applicable.

R.S. 9:4801 et seq.

The Private Works Act, R.S. 9:4801 et seq., confers a privilege to certain persons who supply labor or materials “for the erection, construction, repair, or improvement of immovable property.” R.S. 9:4801. The parties agree that the act applies if the living quarters unit is an immovable.

The Civil Code articles on the classification of thing were recently amended. 1978 La. Acts, No. 728, amending the Civil Code of 1870 articles 448-87. Because the revision became effective in 1979, and the operative facts leading to this litigation occurred in 1978, the rights of the parties are governed by the articles as they existed prior to the revision. Nonetheless, examination of the revision provides guidance and insight into a proper interpretation of the pre-amendment articles.

The Civil Code of 1870 divided immova-bles into three categories: immovables by nature, immovables by destination and im-movables by the object to which they are applied. C.C. of 1870 art. 463. The Code attempted to define immovables by nature as things which “can not move themselves or be removed from one place to another.” C.C. of 1870 art. 462. This definition was followed by a listing of those things considered to be immovables by nature.

This definition was deleted from the Code by the 1978 revision, because, as explained by the revision’s redactors:

“This analytical scheme — definition and illustrations — contradicts reality. Contemporary mechanical means make possible the relocation of immense quantities of earth, timber, buildings, and various kinds of constructions. It appears, therefore, that immovability by nature under present Louisiana law is a legal fiction based partly on practical considerations and partly on inherent characteristics of things. In the light of contemporary conceptions the only immovables by nature are tracts of land, i.e., portions of the surface of the earth individualized by boundaries.” Expose des Motifs of Act 728, 1978 La. Acts, Vol. II, p. 1908.

Immovability is a legal concept and not merely an inherent quality of a thing. Whether a thing is classified as an immovable depends upon whether the legislature has accorded to that thing the preferred status of immovability. Immovability “in fact” is not itself a prerequisite to immovability “in law”, and things regarded as im-movables by the law might be moved through the application of extraordinary mechanical means. To determine whether this living quarters unit is an immovable by nature, the Code articles listing the things which are immovables by nature should be considered.

The 1870 Code classified as immova-bles by nature buildings and other constructions. Although the Code did not define these terms, it did provide that buildings and other constructions are immovables regardless of “whether they have their foundations in the soil.” C. C. of 1870 art. 464. Integration with the soil was not a prerequisite to immovability under former article 464, and the courts have properly classified as immovables things whose foundations rested upon blocks or posts. See Prevot v. Courtney, 241 La. 313, 129 So.2d 1 (1961) (tractor shed and poultry house); Lafleur v. Foret, 213 So.2d 141 (La.App.3d Cir. 1968) (beagle and chicken brooders); Vaughn v. Kemp, 4 La.App. 682 (2d Cir. 1926) (small wooden frame garage).

Nor did former article 464 require unity of ownership as a prerequisite to immovability. Buildings and other constructions erected by persons other than the owner of the land are nonetheless immova-bles by nature under the 1870 Code. Buchler v. Fourroux, 193 La. 445, 190 So. 640 (1939); Lighting Fixture Supply Co. v. Pacific Fire Insurance Co. of New York, 176 La. 499, 146 So. 35 (1932); Scardino v. Maggio, 15 La.App. 444, 131 So. 217 (1st Cir. 1930); Vaughn v. Kemp, supra.

The 1978 revision effects several changes. Constructions other than buildings are now classified as movables unless they are component parts of a tract of land. To be a component part of a tract of land, a construction must meet two requirements: it must be permanently attached to the ground, and it must belong to the owner of the ground. C. C. 463, as amended by 1978 La. Acts, No. 728.

The 1978 legislation made no changes in the classification of buildings. Under the revision, buildings which belong to the owner of the ground are considered component parts of a tract of land, C. C. 463, as amended by 1978 La. Acts, No. 728, and, when there is no unity of ownership, the building is considered a separate immovable. C. C. 464, as amended by 1978 La. Acts, No. 728. Thus, under the revision, as under the 1870 Code, buildings are always classified as im-movables.

The trial court concluded that the living quarters unit was not a building because it “was not being used as a building; rather it was set upon wooden blocks while it was under construction.” The Court of Appeal reversed, correctly noting that there is no codal requirement that a building have its foundation in the soil. Additionally, the trial court’s reasoning would frustrate the purpose of the Private Works Act, which is to protect the claims of laborers and workmen. Many lien claimants perform work for the erection of new structures which naturally are not placed into use until completion. If classification must await actual use, then these lien claimants would find themselves unprotected by the act.

We agree with the conclusion of the Court of Appeal that this living quarters unit is a building. As the picture of the unit demonstrates, the facts speak eloquently for themselves. This is a three story high permanent steel structure with a helicopter landing pad constructed above it, built at a cost of over $400,000. It is designed to house offshore workers. Under prevailing notions, such a structure is a building and is therefore classified as an immovable.

Pennzoil maintains that the unit should not be classified as an immovable because the unit was intended to be moved offshore. The fact that the unit is capable of being moved by a powerful crane does not defeat classification of that thing as an immovable, for, as mentioned earlier, immovability is a legal concept and not an inherent quality of a thing.

Implicit in Pennzoil’s position is the concept that classification of a thing as an immovable by nature is somehow contingent upon the owner’s intentions. We do not believe the Code granted the owner such flexibility, nor do we believe that immovability by nature should hinge upon such a subjective factor as the owner’s intentions. Such a contention may have been meritorious in connection with the 1870 Code’s category of immovables by destination, but is not applicable to immovables by nature. As this court has previously explained:

“. .. there is a vast distinction between immovables by destination and immova-bles by nature. The status of an immovable by destination can be changed by an act of the landowner, but there is no provision of law that we are aware of, and none has been cited to that effect, that the act of the landowner, or any other person, can change the status of an immovable by nature. . . .
The status of an immovable by nature is never changed by any act of the owner, while the status of an immovable by destination changes according to its use by the owner. ... In the instant case, the status of the property could not be changed by the intention or act of the landowner because its status is fixed by law and does not depend upon its use.” Buchler v. Fourroux, 193 La. at 477—78, 190 So. at 650-51.

The legislature has determined that a building is an immovable regardless of whether its foundation is integrated with the soil. This three story high permanent steel structure qualifies as a building and therefore is an immovable, and subject to the laws governing immovables. Consequently, the Private Works Act (including R.S. 9:4812) applies to this case.

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

MARCUS, J., concurs and assigns reasons.

MARCUS, Justice

(concurring).

I agree with the majority’s conclusion that La. R.S. 9:4861 is not applicable here. Moreover, La.Civ.Code art. 464 (under old law prior to amendment effective January 1, 1979) provided: “Lands and buildings or other constructions, whether they have their foundations in the soil or not, are immovable by their nature.” Clearly, the living quarters unit was a building whose foundation was not in the soil. Hence, it was an immovable by its nature. Accordingly, I respectfully concur.

      . Initially separate lawsuits were instituted, but they were consolidated prior to trial.

      . Seaways International, Inc. is no longer involved in this litigation, as that party did not appeal the trial court’s decision.

      . In finding that the unit is an immovable, the Court of Appeal relied in part upon language from this court’s opinion in Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1978). That case dealt with the definition of a building for the purpose of imposing delictual responsibility upon the owner under C. C. 2322. This court was confronted in that case with the question of whether a fixed offshore platform constitutes a building for purposes of article 2322. The heating system in the living quarters unit was found to be a defect, and the unit itself to be an appurtenance to the platform. The classification of the unit under the property law articles was declared to be immaterial to that decision.


author: FORET, Justice Ad Hoc . MARCUS, Justice BLANCHE, Justice

text:
    STATE of Louisiana, Appellee, v. Howard Lee GOODS, Appellant.
    No. 80-KA-2946.
    Supreme Court of Louisiana.
    Sept. 8, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Sturgeon, Dist. Atty., John F. Johnson, Asst. Dist. Atty., for appellee.
    Jerry Daye, Ferriday, for appellant.
   FORET, Justice Ad Hoc .

Howard Lee Goods (defendant) was charged with aggravated burglary in violation of LSA-R.S. 14:60. Defendant entered a plea of not guilty and was tried before a twelve-member jury, which found the defendant guilty as charged. The trial court sentenced defendant to thirty years at hard labor, the maximum sentence for aggravated burglary. Defendant makes the following assignments of error:

(1) The district court erred in refusing to declare a mistrial after Deputy Pete Tolar made prejudicial remarks in his testimony before the jury.
(2) [Abandoned]
(3) The district court erred in denying defendant’s motion for a directed verdict under LSA-C.Cr.Proc. Art. 778 after the State failed to prove all of the essential elements necessary for a conviction of aggravated burglary.
(4) and (5) The district court erred in imposing the maximum sentence on defendant in light of the particular facts and circumstances of this case, and the imposition of said sentence constitutes a violation of LSA-Const. Art. 1, § 20.

FACTS

The crime for which defendant has been convicted occurred on February 8, 1980, at approximately 12:55 P.M. in Catahoula Parish. Fannin Brothers conducts a large farming operation in that parish and a shop located on U.S. Highway 84, some six miles west of Jonesville, Louisiana.

Dale Fannin, Doyle Pritchard, and Kenneth Cooper were doing some welding on a piece of farm equipment in the shop when Cooper happened to glance out of a window. He saw a black and white Chrysler automobile cross a nearby railroad track and park in front of a barn approximately twenty-five to thirty-five feet away. Dale Fan-nin’s truck was also parked at the barn and Cooper saw the driver and sole occupant of the Chrysler (whom he later identified as defendant) get out of his vehicle and walk over to the truck. Cooper alerted the other men as to what was happening and they joined him at the window. At that time, the driver of the Chrysler reached into Dale Fannin’s truck and removed two .22 caliber rifles from the gun rack. He then got back into his vehicle and drove away, taking the rifles with him.

Fannin, Pritchard, and Cooper climbed into another truck and began to pursue the Chrysler, which headed east on Highway 84 towards Jonesville. However, after traveling approximately three miles, their truck stalled. Cooper then went to a nearby telephone and called the Jonesville Police Department to inform them of what had occurred.

Upon apprehension following a chase by police, defendant gave the arresting officers permission to search his vehicle, but they did not find the stolen guns in it. The guns were found some three hours later on the side of the old Masonic building in Jonesville, which is located approximately one hundred yards from the spot where defendant was apprehended.

Defendant was transported to the Jones-ville police station after his arrest and questioned. Defendant stated that he knew nothing about the stolen guns. Fannin, Pritchard, and Cooper arrived at the police station later that afternoon and positively identified the car, which defendant had been driving, as the one used in the commission of the crime. Fannin also identified defendant as the one who had burglarized his truck.

Initially, defendant was charged with simple burglary. However, defendant was formally charged by bill of information on March 13, 1980, with having committed the offense of aggravated burglary. Defendant was tried and convicted of aggravated burglary and appeals the said conviction.

ASSIGNMENT OF ERROR NO. 1

The defense contends that the trial court erred in not declaring a mistrial due to prejudicial remarks made by Deputy Tolar during the testimony before the jury.

Defense attorney, Jerry Daye, was cross-examining Deputy Tolar relative to the accused’s willingness to allow a warrantless search of his vehicle as follows:

“Q. But he had, prior to that, given a voluntary permission to search the vehicle also?
A. He did.
Q. No problems with him?
A. No problems. He knew the guns weren’t in there, so he didn’t give us any problems.
Q. Your Honor, I would object to that.
Judge: Alright. The answer is not responsive, Deputy Tolar.
Q. Now, I am going to move for a mistrial.
Judge: Alright, let’s remove the Jury. Remove the Jury, Mr. Bailiff. Mr. Day, I am going to let you argue that. Have the Jury step out. Alright, what’s your grounds for a mistrial?
Mr. Daye: Your Honor, I’m asking for a mistrial based on Article 775 of the Code of Criminal Procedure where a prejudicial comment is made which prejudiced the Jury. That comment was completely uncalled for. It was not a response.” [Emphasis added]

The trial court admonished the jury to disregard the emphasized portion of Deputy Tolar’s answer. However, defendant argues that a police officer should be considered a “court official” under LSA-C. Cr.Proc. Article 771 and, thus, prejudicial remarks made by a police officer in testimony before a jury should be the basis for a mistrial. We note that under the provisions of LSA-C.Cr.Proc. Article 771, it makes no difference whether a police officer is considered to be a “court official” or an ordinary witness. A prejudicial remark made by a police officer in either capacity provides the basis for a mistrial under LSA-C. Cr.Proc. Art. 771 if the trial court is satisfied that an admonition is not sufficient to insure the defendant of a fair trial. LSA-C.Cr.Proc. Art. 771 leaves the decision as to whether to grant a mistrial or admonition to the sound discretion of the trial court. State v. Harris, 383 So.2d 1 (La.1980); State v. Hegwood, 345 So.2d 1179 (La.1977); State v. Sepulvado, 342 So.2d 630 (La.1977). A mistrial is a drastic remedy and is warranted only when trial error results in substantial prejudice to the defendant sufficient to deprive him of a fair trial. State v. Haris, supra; State v. Williams, 375 So.2d 364 (La.1979); State v. Heads, 370 So.2d 564 (La.1979).

In the present case, the unresponsive remark was made by Deputy Tolar after defense counsel had twice asked him whether defendant had voluntarily agreed to a search of his vehicle and whether he had given the officers any problems. Obviously, defense counsel was attempting to raise an inference that defendant had consented to the search of his vehicle because he had a clear conscience. While this does not excuse the unresponsive remark made by Deputy Tolar, we find that the remark was not so prejudicial as to deprive defendant of a fair trial. The sustaining of defendant’s objection and the admonition given by the trial court provided defendant with adequate protection.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

The defense contends that the trial court erred in refusing to grant its motion for a directed verdict on the aggravated burglary charge. The basis of that motion was that the State had failed to prove an essential element of the crime of aggravated burglary, i. e., that the unauthorized entering of the movable took place while a person was present.

With the amendment of LSA-C.Cr.Proc. Art. 778 by the Louisiana Acts 1975, # 525, § 1, the directed verdict in jury trials became unavailable. The trial judge only has such authority in bench trials. State v. Adams, 355 So.2d 917 (La.1978). See, e. g., State v. Domanque, 350 So.2d 599 (La.1977).

This Court has consistently held that in a jury trial the proper procedural vehicle for preserving, for appellate review, an issue regarding the failure of the State to present evidence of an essential element of the crime charged is a motion for a new trial. State v. Peoples, 383 So.2d 1006 (La.1980); State v. Spencer, 374 So.2d 1195 (La.1979); State v. Williams, 354 So.2d 152 (La.1977); State v. Cobbs, 350 So.2d 168 (La.1977); State v. Blackstone, 347 So.2d 193 (La.1977). The instant case was tried before a jury and the record does not reveal that defendant filed a motion for a new trial. Prior to State v. Peoples, supra, defendant’s claim that the State presented no evidence of an essential element of the crime charged would not be properly before this Court for review since he failed to file a motion for a new trial. But, in Peoples we said at page 1007:

“However, on further consideration, we conclude that it would be patently unfair and a substantial denial of due process to deny a defendant the right to obtain review by this court of a conviction where it is claimed that the state failed to present any evidence of the crime charged or an essential element thereof simply because he did not file a motion for a new trial or filed such a motion and neglected to assert this contention therein. Hence, whether or not a defendant raises a claim of no evidence in a motion for a new trial, upon formal assignment of error, we will review whether the defendant’s claim of no evidence has merit.”

LSA-R.S. 14:60 provides in pertinent part:

“§ 60. Aggravated burglary
Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.” (emphasis provided.)

The evidence clearly shows that Cooper, Pritchard, and Fannin were inside a shop some twenty-five to thirty-five feet away from Fannin’s truck when defendant took the guns from the cab thereof. Defendant argues that the emphasized portion of LSA-R.S. 14:60, supra, requires that the State prove, beyond a reasonable doubt, that a person was present within the burglarized structure, water craft, or movable as one of the essential elements of aggravated burglary. We agree.

In State v. Pierre, 320 So.2d 185 (La.1975), we found that the definition of aggravated burglary as set forth in LSA-R.S. 14:60, supra, falls to some extent within the contemplation of the historical and common law definition of burglary, as a law designed for the protection of the person’s place of habitation. We then noted that it was significant that LSA-R.S. 14:62, infra, setting forth the crime of simple burglary makes no reference to an “inhabited” dwelling, structure, water craft or to a movable “where a person is present”.

The Reporter’s Comment to LSA-R.S. 14:60, supra, sets forth the scope of the crime covered by that statute as follows:

“Scope:
The crime extends to buildings, vessels, and movables as well as dwellings. The reason for this inclusion is that there may also be great danger to human life in the burglarizing of vessels, trailers, and the like.
In cases involving a structure, water craft, or movable, however, it is necessary that someone be present when the crime is committed. If no one is present in such cases the crime can only be simple burglary. In the case of dwellings, inha-bitation is all that is necessary; whether someone is actually there at the time of the crime is unimportant.”

There is no need for us to apply the standard of review set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), as there is no doubt that no one was present in the movable at the time defendant burglarized it. Thus, lacking this essential element, the State could not prove that the defendant was guilty of aggravated burglary.

In State v. Byrd, 385 So.2d 248 (La.1980), we held that the discharge of a defendant is neither necessary nor proper when the evidence supports a conviction on a lesser and included offense which was a legislatively authorized responsive verdict. LSA-C.Cr.Proc. Art. 814(39), provides that the responsive verdicts to a charge of aggravated burglary are: “guilty”, “guilty of simple burglary”, and “not guilty”.

LSA-R.S. 14:62 provides in pertinent part:

“§ 62. Simple burglary
Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein, other than as set forth in Section 60.”

In this case, all of the elements of simple burglary have been proved beyond a reasonable doubt to the satisfaction of the trier of fact. The verdict of guilty of the greater offense explicitly reflects the finding that defendant’s entry into the cab of Fannin’s truck was unauthorized and was made with the intent to commit a theft therein. LSA-R.S. 14:62, supra.

Accordingly, the conviction of aggravated burglary and the sentence are set aside, and the matter is remanded to the trial court with instructions to enter a judgment of guilty of simple burglary and to sentence the defendant accordingly. Because of our decision herein, we pretermit any discussion of the issues raised by defendant in his assignments of error numbered 4 and 5.

CONVICTION AND SENTENCE SET ASIDE, REMANDED FOR ENTRY OF JUDGMENT OF GUILTY OF SIMPLE BURGLARY AND FOR SENTENCING.

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

WATSON, J., dissents.

MARCUS, Justice

(dissenting).

I agree that there is no evidence of an essential element of the crime for which defendant was charged and convicted, that is, the unauthorized entering of a movable where a person is present. Therefore, defendant should be discharged. I respectfully dissent.

BLANCHE, Justice

(dissenting).

I respectfully dissent. The opinion is correct. The defendant is not guilty of aggravated burglary as charged, but is guilty of simple burglary. However, the district attorney ought to have known the elements of these crimes as well as the court, and should have realized the defendant was overcharged. State v. Byrd, 385 So.2d 248 (La.1980) takes care of the jeopardy problem because defendant does not get another trial as we find him guilty of the lesser included offense and order the trial court to enter a judgment accordingly.

This writer is not charging the district attorney with prosecutorial abuse, but Byrd, supra, makes it possible, especially in tough cases involving murder and manslaughter.

This writer agrees with Marcus, J. The defendant should be discharged.

       Judges J. Burton, Foret, Jimmy M. Stoker and P. J. Labordc of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices ad hoc joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, and Jack C. Watson.

      . “§ 20. Right to Humane Treatment
      Section 20. No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment. Full rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense.”

      . “Art. 771. Admonition
      In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
      (1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
      (2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
      In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.”

      . This Court has generally recognized that a police officer’s unsolicited, unresponsive reference to another crime by the defendant is not the comment of a “court official” under the provisions of LSA-C.Cr.Proc. Art. 770. Absent a showing of a pattern of unresponsive answers or improper intent by the police or prosecutor, such comments would not fall within the purview of LSA-C.Cr.Proc. Art. 771. State v. Harris, 383 So.2d 1 (La.1980); State v. Schwartz, 354 So.2d 1332 (La.1978); State v. Hammontree, 363 So.2d 1364 (La.1978); State v. Foote, 379 So.2d 1058 (La.1980); State v. Jones, 332 So.2d 466 (La.1976); State v. Martin, 376 So.2d 300 (La.1979); State v. Hardy, 344 So.2d 1018 (La.1977).

      . The United States Supreme Court in Jackson v. Virginia, supra, set forth the following standard of appellate review in matters involving the sufficiency of evidence to support a criminal conviction:
      “. . . the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
      See 443 U.S. 307, 99 S.Ct. 2781, at 2789, 61 L.Ed.2d 560.


author: PONDER, Justice Ad Hoc.

text:
    STATE of Louisiana v. Robert HOGAN.
    No. 81-KA-0030.
    Supreme Court of Louisiana.
    Sept. 8, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., George T. Mustakas, II, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Robert T. Garrity, Jr., and Joseph Montgomery, Indigent Defender Board, Metairie, for defendant-appellant.
   PONDER, Justice Ad Hoc.

Defendant appealed from a conviction and sentence for armed robbery. LSA-R.S. 14:64.

The issues are: suppression of evidence, sufficiency of evidence and sentencing.

We affirm.

Two men robbed a convenience store, one holding a shiny “silver” revolver to the head of the store employee. He grabbed a pair of sunglasses as he left the store. The police were summoned and given a description: a tall Negro male, with light complexion and light colored eyes, wearing blue jeans and a light colored pullover. Both this description and the information of the shiny “silver” gun and the sunglasses were broadcast. Shortly thereafter, another officer, finding some similarities with a prior robbery re-issued the description of a vehicle and license number of a vehicle allegedly involved in the prior robbery. A third officer, after verifying the license number, stopped defendant’s vehicle. A pair of sunglasses and the handle of a chrome-plated revolver were in plain view in the car. Other officers identified Robert Hogan as the owner of the sought-after car. The victim, brought to the scene, identified Hogan as the robber.

The trial court denied defendant’s motion to suppress the seized evidence. Defendant’s objection to the admission of several photographs taken at the scene of arrest was also denied. The trial court found defendant guilty and sentenced him to seven and one-half years imprisonment at hard labor without parole, probation or suspension of sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant argues that because the police lacked the requisite reasonable suspicion to stop his auto, the seized revolver and sunglasses must be suppressed as the fruit of the violation of defendant’s Fourth Amendment rights. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Defendant’s claim is without merit. The Fourth and Fourteenth Amendments to the United States Constitution as well as Article 1, Section 5 of the Louisiana Constitution protect against unreasonable searches and seizures. LSA-C.Cr.P. Art. 215.1 provides for an investigatory stop on reasonable suspicion of criminal activity. Although reason for the investigatory stop may be less than probable cause, the detaining officer must have knowledge of facts which imply criminal behavior to justify interference with an individual’s freedom. State v. Bolden, 380 So.2d 40 (La.1979). In assessing the reasonableness of an officer’s conduct, it is necessary to weigh the need to search and seize against the harm of invasion. State v. Bolden, supra.

Here, the stopping officer had a detailed description of the perpetrator of an armed robbery that had just occurred, plus the description of a vehicle already identified as being involved in previous similar armed robberies. The stop was made only after verification of the license number of the vehicle. We find the investigatory stop was reasonable.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the court erred in admitting into evidence photographs of defendant’s automobile taken at the scene of the arrest. The photographs of the interior of the car reveal two revolvers, sunglasses and a paper bag of money. The trial court noted, as do we, some discrepancies between the police officers’ testimony and the position of some of the items. The crime technician who took the photographs testified the photographs depicted the scene as he found it. The discrepancies were minor and we find them to be inconsequential. We find no error in the admission of the photographs. State v. Fox, 251 La. 464, 205 SO.2d 42 (1967). The ability to see the revolvers, sunglasses and paper bag with money was well supported by other evidence.

ASSIGNMENT OF ERROR NO. 3

Relying on Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and State v. Landry, 381 So.2d 462 (La.1980), defendant claims the due process clause of the United States Constitution mandates reversal of a conviction when the proof of guilt is such that no rational trier of fact could find guilt beyond a reasonable doubt. Defendant’s interpretation of the cited cases is correct, but we feel the trial court had sufficient proof of every essential element of the offense.

The victim gave a description of defendant and identified him at the scene of the arrest and in court. She testified the robber had accosted her with a short-barreled “silver” revolver and forced her to put the money into a No. 8 paper bag. Upon leaving the store, the robber took a brown pair of sunglasses. A short-barreled chrome-plated revolver, a pair of sunglasses, and a No. 8 brown paper bag containing money was found in defendant’s car shortly after the robbery. We agree with the trial court that the totality of the evidence supports defendant’s conviction beyond a reasonable doubt.

ASSIGNMENT OF ERROR NO. 4

Defendant complains the court imposed a cruel, unusual and excessive sentence upon him in violation of the United States and Louisiana Constitutions and further failed to give adequate consideration to the sentencing guidelines.

Defendant’s claim is without merit. Although the trial court did not vocalize its consideration of the factors listed in LSA-C.Cr.P. Art. 894, we do not find this necessitates reversal. This court may vacate a sentence and remand for resentenc-ing, when the reason for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record. State v. Cox, 369 So.2d 118 (La.1979). A sentence is unconstitutionally excessive if it is grossly out of proportion to the offense. State v. Bo-nanno, 384 So.2d 355 (La.1980). Here, defendant was convicted of armed robbery (LSA — R.S. 14:64) which carries a minimum sentence of five years without parole, probation, or suspension of sentence and a maximum of ninety-nine years. We do not find the sentence excessive.

Although the trial court did not articulate the sentencing criteria of Article 894.1, nevertheless, this court need not remand for re-sentencing if it finds that the sentence was not apparently severe or out of proportion to the crime of armed robbery. See State v. Russell, 397 So.2d 1319 (La.1981).

For the above reasons, the judgment of the trial court is affirmed.

LEMMON, J., concurs.

“A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
(1) The defendant’s criminal conduct neither caused nor threatened serious harm;
(2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
(3) The defendant acted under strong provocation;
(4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
(5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
(8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
(9) The character and attitudes of the defendant indicated that he is unlikely to commit another crime;
(10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
(11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence. Added by Acts 1977, No. 635, § 1.”

       Judges Ellis, Lottinger and Ponder of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Associate Justices Calogero, Dennis, Watson and Lemmon.

      . LSA-C.Cr.P. 215.1:
      “A. A law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or a misdemeanor and may demand of him his name, address and an explanation of his actions.
      B. When a law enforcement officer has stopped a person for questioning pursuant to this Article, and reasonably suspects that he is in danger of life or limb, he may search the outer clothing of such person for a dangerous weapon or for any other thing the possession of which may constitute a crime.
      C. If the law enforcement officer finds a dangerous weapon or any other thing the possession of which may constitute a crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person. Added by Acts 1968, No. 305, § 1.”

      . LSA-C.Cr.P. Art. 894.1:


author: MARCUS, Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Alfred SIMPSON.
    No. 81-KA-0047.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Premila Chumbley, Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-appel-lee.
    Jeff Calmes, Baton Rouge, M. Michelle Fournet, Asst. Public Defender, for defendant-appellant.
   MARCUS, Justice.

Alfred Simpson was charged by bill of information with simple burglary in violation of La. R.S. 14:62. After trial by jury, defendant was found guilty of attempted simple burglary and sentenced to serve four years at hard labor. Although defendant designated nine years to be urged on appeal, he briefed and argued only Assignment of Error No. 1. Therefore, the remaining assignments of error are considered to have been abandoned.

In assignment of Error No. 1, defendant contends the trial judge erred in denying his motion for continuance. We agree.

Defendant was arrested and booked with simple burglary on the night of January 29, 1980. On the following day, defendant appeared in court, bail was fixed, and defendant stated that he would retain his own counsel. He was given notice to appear in court on February 15,1980 in order to name counsel. On that day, defendant appeared without counsel before Judge Doug Moreau. The Office of Public Defender was appointed to represent him and it was ordered that notice of appointment be sent to that office.

Defendant was released from jail on an appearance bond filed on March 6, 1980. He was formally charged by bill of information on April 18, 1980. On May 27, 1980, when defendant failed to appear for arraignment, Judge Moreau issued a warrant for his arrest and ordered the bond forfeited. Three days later (May 30), defendant appeared in court. The warrant was recalled and the bond forfeiture was set aside. Defendant was arraigned and advised of his right to counsel. He entered a plea of not guilty and the case was set for trial for July 7, 1980. The court questioned defendant and determined that he could afford to hire counsel. Defendant was given notice of trial and advised to contact counsel. On July 7, 1980, defendant appeared in court without counsel. The case was passed and reset for trial for August 11, 1980. The court advised defendant to appear in court on that day with an attorney.

Apparently unaware of any progress in defendant’s case since being appointed to represent him, the Office of Public Defender, through attorney Vincent Wilkins, Jr., filed a motion for a speedy trial on August 5, 1980. The motion indicated that the Office of Public Defender had been appointed to represent defendant on February 20, 1980 and erroneously stated that defendant was incarcerated and unable to furnish bond and that no trial date had been set.

On August 11, 1980, Judge Moreau called the case for trial. The state indicated that it was ready for trial. At this point, Mr. Jeff Calmes, assistant public defender, informed the court that he was not prepared to represent defendant. He stated that he was not even aware that the Public Defender’s Office had been appointed to represent defendant. Thereupon, he moved for a continuance. The trial judge denied the motion noting that defendant had been advised to be ready to proceed to trial with an attorney on August 11, 1980, and that the blame was on defendant if he was not prepared to do so, “first, for not bringing another attorney; second, for if having the Office of Public Defender appointed, for not going there.” Judge Moreau stated that at both of defendant’s prior appearances before him, defendant had not informed the court that the Office of Public Defender had been appointed to represent him and had indicated that he would retain counsel. The judge further observed the he was “fully aware of the circumstances” that Mr. Calmes was in and did not consider him at fault.

Upon suggestion of the state, the judge decided to select the jury and then to proceed with the remainder of the trial on the following day. Selection of the jury was to commence after a noon recess. Upon inquiry by Mr. Calmes, Judge Moreau confirmed the fact that the Office of Public Defender represented defendant. Mr. Calmes then moved to withdraw his motion for a speedy trial. The trial judge deferred ruling on the motion until after the recess. Defense counsel noted his objection to the denial of his motion for continuance.

After the recess, but before selection of the jury commenced, defense counsel again objected to going to trial that day. He argued that defendant could not receive a fair trial because he was not prepared to defend him. He pointed out that although his office was counsel of record in the ease, it was never sent notice of a hearing on the motion for a speedy trial or notice of the trial date. Judge Moreau ordered the motion for a speedy trial dismissed “as being moot” because the case was going to trial. He further stated that since defendant had been given personal notice of the trial date, any prejudice resulting from his failure to communicate that information to either his appointed counsel or counsel of his choice was attributable to him. The court then proceeded with the selection of the jury. After selection of the jury, the case was recessed for the day. The trial was completed the next day and defendant was found guilty of attempted simple burglary.

The granting or refusal of a motion for a continuance rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent a clear abuse of discretion. Whether a refusal to grant a continuance was justified depends primarily on the circumstances of the particular case. We have generally declined to reverse convictions absent a showing of specific prejudice caused by the denial of a continuance. La.Code Crim.P. art. 712; State v. Ordonez, 395 So.2d 778 (La.1981). However, this is not without exception.

In the instant case, Mr. Calmes was not aware that he was representing defendant until the morning of trial. Although the Office of Public Defender was counsel of record and had previously received notice of its appointment, the office was totally unaware that a trial date had been set. This is evidenced by its motion for a speedy trial filed six days earlier in which it stated that no trial date had been set. It is also apparent that there had been no contact between the Office of Public Defender and defendant prior to the morning of trial. Although only jury selection took place on the first day of trial, defense counsel had no time to prepare for trial. Moreover, defense counsel was free from fault as the Office of Public Defender never received notice of the trial date; therefore, it had a reasonable explanation for not being prepared for trial. Additionally, defendant’s failure to communicate the trial date to his appointed counsel, whom he most probably did not even know represented him, is not a valid reason to require him to go to trial with counsel who has had no time to prepare a defense.

In our view, defendant’s right to a fair trial was substantially affected by being forced to go to trial with counsel who had no time to prepare a defense through no fault of his own. Accordingly, we find that the trial judge abused his discretion in denying defendant’s motion for continuance. We must reverse. See State v. Benson, 368 So.2d 716 (La.1979); State v. Winston, 327 So.2d 380 (La.1976).

DECREE

For the reasons assigned, the conviction and sentence are reversed and the case is remanded to the district court for a new trial.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

The trial court properly denied the continuance because defendant was “playing with the system”, first by not appearing and then by failing to employ counsel.

It is insignificant that the public defender, through no fault of his own, was not prepared to present a defense on the August 11 trial date. The public defender’s February 15 appointment had been subsequently overridden by the trial court’s May 30 determination that defendant was not indigent and could afford counsel. Thereafter, the public defender had no part to play in the proceedings, and defendant did not rely on the public defender to provide his defense. Indeed, defendant on several occasions indicated that he would retain counsel, and the court warned him, well in advance of each trial date that was fixed, to contact an attorney.

Thus, it was defendant’s own deliberate inaction (and not any lack of notice to or preparation by the public defender) that caused defendant to be in a disadvantageous position on August 11. If the public defender had not appeared on that date (because of the purely coincidental motion for a speedy trial), the trial court clearly could have found that defendant had waived his rights to counsel and required defendant to proceed without counsel. The public defender did appear, however, and the trial court wisely allowed representation (and even accorded a one-day delay), probably reasoning that defendant was better off with inadequately prepared counsel than with no counsel at all.

Since I believe the trial court properly handled the entire matter (except for the non-prejudicial failure to notify the public defender that the appointment had been vacated), I would affirm the conviction.

      . State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . We are aware that La.Code Crim.P. art. 707 provides that an application for a continuance shall be by written motion whereas, here, the motion was oral. However, due to the fact that the occurrences that allegedly made the continuance necessary arose unexpectedly, defense counsel had no opportunity to prepare a written motion. Moreover, the record reflects that the trial judge was fully aware of the ground upon which defendant’s motion was based and ruled thereon. Under the circumstances, we consider that the trial judge’s denial of defendant’s motion for a continuance is before us for review. State v. Parsley, 369 So.2d 1292 (La.1979).

      . From a legal standpoint the appointment could be disregarded, although the court did not expressly vacate the appointment.


author:
LOTTINGER, Justice Ad Hoc.
     LEMMON, Justice,

text:
    STATE of Louisiana v. Curtis O. CROSBY.
    NO. 81-K-0406.
    Supreme Court of Louisiana.
    Sept. 8, 1981.

      Keith D. Jones, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Wiley Dial, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-respondent.
   LOTTINGER, Justice Ad Hoc.

The defendant, Curtis 0. Crosby, was charged by bill of information with the crime of possession of marijuana in violation of La.R.S. 40:967(C). On the date set for trial the trial court heard and denied defendant’s motion to suppress evidence, ordered that the evidence be admitted, denied defendant’s motion for directed verdict of acquittal and found the accused guilty as charged. We granted this writ of certiorari to review the trial court’s finding that a warrantless search was justified as a valid inventory search of a vehicle. Additionally, the defendant raises the issue of the qualifications of á witness as an expert.

FACTS

On May 9, 1980, at approximately 4:30 p. m. Officer Dan Larkin, the arresting officer, pulled over the defendant for failure to come to a complete stop at an intersection in the Parish of East Baton Rouge. Officer Larkin ordered a driver’s license and warrant check on the defendant. The warrant check revealed that there were outstanding arrest warrants for two counts of contempt of court. The defendant was thereupon placed under arrest, informed of his Miranda rights, and handcuffed and placed in the rear seat of the police unit. Officer Larkin then proceeded to call a wrecker service to store the vehicle. The officer asked the defendant if there was a family member in the vicinity who could come to pick up his car. There was none. The officer did not recall whether he asked the defendant if there were any valuables in the car nor whether the defendant consented to an inventory search of the car. As he proceeded to conduct an inventory search, he noticed a green leafy substance which appeared to be marijuana around a partially covered orange frisbee on the floor in front of the driver’s seat. Closer examination revealed a “baggie” of this green substance underneath the frisbee and the floor mat.

MOTION TO SUPPRESS

Defendant argues that the trial court erred in disallowing his motion to suppress and subsequently admitting into evidence the seized marijuana. The gravamen of defendant’s argument is that there was no need to impound the automobile, thus necessitating an inventory search. It is the defendant’s position that he could have driven his automobile to the police station or parked the automobile in the parking area of the L.S.U. Golf Course. The defendant also argues that he could have been given a misdemeanor summons rather than having been arrested. Finally, the defendant argues that he should have been asked to consent to an inventory search or to consent to waive the protection afforded by such a search.

Without question a warrantless search and seizure occurred in this case. Thus, the burden of proof is upon the state to show affirmatively that this search and seizure were justified under one of the well recognized exceptions to the warrant requirements of the Fourth Amendment and the state constitution. State v. Hatfield, 364 So.2d 578 (La.1978).

Since the state claims that the evidence was seized pursuant to a valid inventory search, it bears the burden of showing that impoundment of the defendant’s vehicle was necessary, and that inventory of the vehicle’s contents was necessary and reasonable in its scope. State v. Jewell, 338 So.2d 633 (La.1976).

As we stated in State v. Jergnigan, 390 So.2d 1306 (La.1980):

“Some of the factors which this Court has considered significant in determining if the state has carried its burden are whether: the vehicle could have remained safely at or near the place it was stopped; the search was conducted in the field; formal impoundment procedures were followed; the tow truck was called before commencing the search; the vehicle operator was asked if he consented to a search, if the car contained valuables, of if he would consent to the agency’s failure to afford him the protection of an inventory search; arrangements could have been made for someone designated by the operator to take possession or protective custody of the vehicle for him.”

In denying the motion to suppress the trial judge relied on State v. Jergnigan, supra. We find Jergnigan persuasive though not controlling.

In Jergnigan defendant was stopped around midnight after a high speed chase. Because he had an out of state driver’s license he was told to follow the state trooper to the local sheriff’s office to post bond. In route the trooper noticed the defendant’s ear weaving in the road. The trooper pulled the defendant over for a second time, arrested him for DWI, and placed him in the back seat of the patrol car. The officer did not entrust the vehicle to the defendant’s two passengers because they had also been drinking and did not have valid drivers’ licenses. Arrangements were made to tow the car in and a search proceeded, turning up a quantity of marijuana. The defendant’s consent was not obtained prior to the search, nor was he asked if he would waive the inventory search. We held the search valid. Justice Dennis in a dissent stated:

“First, the vehicle was stopped on the side of a highway inside the city limits of Gonzales in front of the Colonial Drive Inn; one of the defendant’s companions offered to stay with the vehicle while he was booked at the station in the same town. The record is devoid of any convincing evidence that the vehicle could not have been left locked and under the watch of the companion at or near the place it was stopped. Second, the defendant was not asked for his consent to the search; he was not asked to consent to waive the protection of an inventory search; the officer was unable to produce the inventory record at the motion to suppress hearing; and the search was conducted in the field rather than the place of impoundment. Moreover, the record is not clear whether the tow truck was called before or after the search began. In my opinion, the totality of the evidence fails to show that either the impoundment of the vehicle or the inventory search were necessary to the arrest of the defendant for DWI and speeding in this case.” (390 So.2d 1309)

The facts in Jergnigan are stronger in favor of the state than they are in the instant case. In Jergnigan the arrest was at midnight, and the companion who offered to stay with the vehicle had been drinking and thus certainly could not guarantee that he was capable of staying awake in order to afford some protection to the vehicle.

In the instant case, the defendant’s vehicle was stopped in broad daylight a short distance from the parking area of the L.S.U. Golf Course. The vehicle could have been very easily moved to this parking lot rather than having been left on the shoulder of the roadway.

It is the policy of the Baton Rouge Police Department that only family members can take possession of an arrestee’s vehicle. The defendant was asked if a family member could pick up his car, and it is unclear from the record how far away a family member was. We are of the opinion that a departmental policy that allows only family members to take possession of an arrestee’s vehicle is overly restrictive. In a university community, particularly where an arrest is made near the university, such a policy is certainly suspect in that it imposes a burden on out of town students who have no family members available. Thus the suspicion is raised that the policy is intended only as subterfuge for a warrantless search without probable cause.

Considering that the vehicle could have been safely parked a short distance from the arrest, that departmental policy concerning family members is overly restrictive, that defendant was not asked if he consented to a search or whether he would waive an inventory search, we find the trial court in error in denying the motion to suppress.

Because of our disposition of this matter on the motion to suppress, there is no need for us to discuss the assignment of error as to the expert witness.

Accordingly the defendant’s conviction and sentence are set aside, and the case is remanded for a new trial in accordance with law.

REVERSED AND REMANDED FOR A NEW TRIAL.

LEMMON, J., dissents and assigns reasons.

PONDER, J. ad hoc, dissents for reasons assigned by LEMMON, J.

LEMMON, Justice,

dissenting.

Defendant had clearly been placed under lawful arrest before the search occurred. A lawful arrest creates a situation which justifies a warrantless search of the arrested person and of the area within his immediate control, so that the police may secure any weapons or prevent the concealment or destruction of evidence. U. S. v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Moreover, when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may search the passenger compartment of that automobile incident to the arrest. New York v. Belton, - U.S. -, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). The Court in Belton reasoned that the arrest itself justifies the infringement of any privacy interest that the arrested person may have in the passenger area of the vehicle.

In the present case the policeman arrested defendant on an outstanding bench warrant. Under the Belton decision that arrest alone justified the search of the passenger compartment of the automobile recently occupied by defendant. As a lawfully arrested person he had no justifiable privacy interest in the passenger compartment, in which he could have hastily hidden weapons or contraband.

I would affirm the conviction.

       Judges Ellis, Lottinger, and Ponder of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Calogero, Dennis, Watson, and Lemmon.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The parking area of the L.S.U. Golf Course was approximately 300 yards away from the point where the arrest was made.


author: FORET, Justice Ad Hoc.

text:
    STATE of Louisiana, Respondent, v. Omer Scott CRAWFORD, Relator.
    No. 81-KA-0715.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    David M. Cohn, of Rothell & Cohn, Ltd., Mansfield, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Herman Lawson, Asst. Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-respondent.
   FORET, Justice Ad Hoc.

Omer Scott Crawford (defendant) was charged by bill of information with hunting deer at night (count 1) in violation of LSA-R.S. 56:123(E)(2), and with hunting from a moving vehicle (count 2) in violation of LSA-R.S. 56:124(1). The deer hunting season was legally open in DeSoto Parish on November 24, 1980, the date on which the aforementioned offenses allegedly occurred.

Defendant was tried and found guilty of both offenses by the trial court on February 25, 1981. On count # 1, the trial court sentenced defendant to pay a fine of $250.00 and to imprisonment in the parish jail for a period of thirty days. On count # 2, the trial court sentenced the defendant to pay a fine of $50.00 and to imprisonment in the parish jail for a period of twenty days, which 20-day portion of the sentence was suspended and defendant placed on one year’s unsupervised probation. The trial court ordered that these sentences run concurrently.

Defendant applied for writs of certiorari, prohibition and mandamus and for a stay order with this Court on March 16, 1981. This Court, on April 16, 1981, granted a writ of certiorari to review defense counsel’s contention that the trial court erred in denying his motion for acquittal when the State’s evidence failed to establish, beyond a reasonable doubt, that the accused was hunting on the night of his arrest. We hereby order that the writ be made peremptory and that there be judgment in favor of defendant reversing his conviction and sentence and dismissing the charges against him.

Because of our decision herein, we need only consider defendant’s Assignment of Error # 2.

ASSIGNMENT OF ERROR # 2.

Defendant contends that the trial court erred in finding him guilty of violating LSA-R.S. 56:123(E)(2) and LSA-R.S. 56:124(1) in that there was> no evidence upon which to base a determination that the defendant was hunting or taking game and therefore guilty of violating the statutes aforementioned.

FACTS

Essentially, the evidence presented by the State and defendant at trial revealed the following: Wildlife and Fisheries Agents Dalton Green and Ronald Morris, acting on a tip from a confidential informant, staked out an area of DeSoto Parish that consisted of pastureland owned by defendant’s grandfather, Alfred Scott Crawford. Agent Green instructed Agent Morris to walk onto the Crawford farm and make his way to an area where rye grass was growing. Meanwhile, Agent Green would take up a position some three miles away. On November 24, 1980, at approximately 5:30 P.M., the agents put their surveillance plan into action. At approximately 5:45 P.M. Agent Green received a call on his walkie talkie from Agent Morris advising him that a truck was coming into the fields under surveillance.

Agent Morris testified that he saw a truck, similar to the one owned by defendant, enter the field and begin to move about in a somewhat erratic manner. The truck at one point made a complete circle. Agent Morris was able to watch the truck for about twelve minutes and stated that during that time he heard no shots; did not see any type of “spotlight” being used; did not see the truck stop; never saw any gun being pointed out of the windows of the vehicle; and never saw any signs of freshly killed deer. He did testify that he thought he heard the truck stop in another field and some talking going on.

Defendant testified that he was driving in an erratic manner because he was attempting to avoid certain obstacles in the field, i. e., old ditches and gulleys, and stump holes that remained after trees had been pushed down some years before. Defendant stated that the full circle he made resulted from his driving around a swampy area in one of the fields. Agent Morris testified that it was dark by the time that he reached the area to be placed under surveillance and that he was unable to tell whether any obstructions did in fact exist. Further, he did not walk through the fields in an effort to determine the nature of the terrain. However, he did testify that, while the truck was passing near him, he could see no obstructions that the driver may have been attempting to avoid. Agent Green had been to the area a couple of days earlier, but he too failed to go into the fields and simply observed them from a distance.

Agent Green drove to the Crawford farm after receiving the information regarding defendant’s conduct from Agent Morris. He arrived at the farmhouse at approximately the same time that defendant did, but from another direction. It was then approximately 6:00 P.M. Agent Green confronted defendant with the information he had and told defendant that it would be necessary for him to look in the truck. He did this and found a loaded 30/30 rifle (one cartridge in the chamber and two in the magazine) lying on the seat beside the defendant.

It was at this time that the State contended that defendant made a number of contradictory statements. Defendant told Agent Green that he had driven through the fields looking for some cattle and that he was not a hunter. Defendant admitted at trial that he lied when he said he wasn’t a hunter. But, he testified that, as for his assertion that he was looking for cattle, he really had no specific purpose in mind and was just killing time. Defendant also told Agent Green he had talked to a man he had seen earlier in the day and had planned to help find a deer the man had killed. We note that this was probably the conversation Agent Morris heard. Defendant identified this man to Agent Green, who testified that the story had been checked out. However, the State presented no evidence as to whether the man had corroborated defendant’s story. Defendant’s grandfather indicated that he had talked to the man and that his grandson was telling the truth. Defendant stated that the only reason that he lied to Agent Green was because he was scared.

Defendant’s grandfather testified that the terrain was essentially that as testified to by his grandson. He stated that there were no roads through the fields, but only trails made where vehicles usually traveled. Both defendant and his grandfather testified that it was not unusual for defendant to simply take off and go riding around the farm and that he had done this many times in the past. Further, he usually carried a gun with him in his truck as do many of the residents of DeSoto Parish. Defendant, who is 19 years old, was described by his grandfather as being a very nervous and restless sort of person. Finally, both Agent Morris and defendant testified that they saw a deer in the fields on the night of defendant’s arrest.

Defendant contends that the State failed to prove beyond a reasonable doubt that he had committed either of the two crimes with which he was charged. Defendant phrases this contention in terms of this Court’s previous “no evidence” standard of review. State v. Cole, 161 La. 827, 109 So. 505 (1926); State v. Williams, 262 La. 160, 262 So.2d 507 (1972).

However, the present standard of review is that a convicted defendant’s attack upon the sufficiency of the State’s evidence used to prove his guilt is judged by determining whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Morgan, 389 So.2d 364 (La.1980); State v. Harveston, 389 So.2d 63 (La.1980); State v. Byrd, 385 So.2d 248 (La.1980).

The statutes in question, LSA-R.S. 56:123(E)(2) and LSA-R.S. 56-124(1) provide, in pertinent part, the following:

“§ 123 E.(2) Whoever violates the provisions of this section by the hunting or taking of deer after one-half hour after official sunset and before one-half hour before official sunrise shall for the first offense be fined not less than $350 and not more than $500 and shall be imprisoned in jail for thirty days.*
§ 124. No person shall: (1). . .hunt or take game quadrupeds or game birds from a moving land vehicle or air-craft_**”

A reading of these provisions makes it clear that “hunting or taking” is an essential element of either offense. “Take” is defined in LSA-R.S. 56:101(14) as the “act of pursuing, netting, capturing, snaring, trapping shooting, wounding, or killing by any means or device whatsoever.” The broader term “hunting” has been defined by this Court as “the act of pursuing and taking wild animals” or, more simply, as the “search for game or other wild animals”. State v. Bass, 321 So.2d 520 (La.1975), at page 522.

In at least three recent cases this Court has been asked to construe this terminology in the context of a defense claim of “no evidence”. The first of these cases, State v. Bass, supra, involved a situation in which a man and his wife were stopped by a wildlife agent on a deserted, flooded, rural road in an area claimed to be heavily populated by deer. Two high-powered rifles were found in the defendant’s vehicle, but no hand light or game was found and no testimony was adduced to the effect that defendants were doing anything other than driving along the road. This Court reversed the defendants’ convictions on the ground that there was no evidence that a crime had been committed.

The later cases of State v. Hicks, 376 So.2d 118 (La.1979) and State v. Fonesca, 378 So.2d 389 (La.1979), involve defendants who had been observed driving slowly along rural highways for upwards of thirty minutes. In each case, spotlights were being utilized to search the roadside and at least one of the vehicles’s occupants was seen holding a rifle of appropriate caliber for the shooting of deer. On the basis of this evidence, the defendants’ convictions for hunting at night and/or hunting from a moving vehicle were affirmed.

In the instant case, evidence of defendant’s guilt was not so strong as that presented in Hicks and Fonesca, but not so weak as that introduced in Bass. Essentially, the conviction was based on evidence that the defendant was seen weaving his lighted pickup truck through a rye grass field, believed to be frequented by deer, with a partially loaded 30/30 caliber rifle on the seat beside him. While this evidence could easily support the wildlife agents’ suspicion that defendant might be engaged in illegal activity, the defendant’s conduct was just as easily susceptible of other explanations, particularly in view of Mr. Scott’s testimony that defendant frequently cruised around his farm and pastureland and that the trails he followed on these excursions were not in particularly good condition.

However, in construing the evidence in the light most favorable to the prosecution; we accept Agent Morris’s testimony that, when defendant was passing near him, his weaving was not part of an effort to avoid potholes, tree stumps, or other obstacles. In addition, defendant’s apparently inconsistent attempts to justify his behavior to Agent Green perhaps justified a conclusion that defendant felt he had done something wrong. Nevertheless, even an assumption that defendant was actively searching the nearby woods and fields is insufficient to warrant a finding, beyond a reasonable doubt, that he was “hunting”. Defendant’s assertion that he was searching for a friend was bolstered by Agent Morris’s testimony that he thought he heard the truck stop and a conversation ensue. Further, the short non-stop nature of defendant’s ride weighed against the State’s hunting allegations. Perhaps most damaging to the State’s case, however, was testimony by both the defendant and Agent Morris that they had spotted a deer on their way to the rye field. If this testimony be accepted, the defendant’s failure to take a shot or even to stop his truck achieves even greater significance. In short, the instant case appears more closely akin to State v. Bass, supra, than to others considered by this Court.

We conclude that, after viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found, beyond a reasonable doubt, the existence of all the essential elements of the crimes defendant was alleged to have committed.

DECREE

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the writ of certiorari issued herein be made peremptory and that there be judgment in favor of defendant, Omer Scott Crawford, reversing defendant’s convictions and sentences and dismissing the charges against him.

REVERSED.

       Judges J. Burton Foret, Jimmy M. Stoker and P. J. Laborde of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices ad hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, and Jack C. Watson.

      . In Hicks, one of the defendants was positioned in the rear of a pickup truck holding a fully loaded 30-30 calibre rifle while simultaneously shining a spotlight into the fields and woods on either side of the road. Fonesca presented a somewhat less compelling situation in which one of the truck’s occupants held a rifle (inside the truck) until the vehicle was stopped by wildlife agents.