text:
    GULF STATES UTILITIES COMPANY v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 65767.
    Supreme Court of Louisiana.
    March 3, 1980.
    Rehearing Denied April 7, 1980.

      Taylor, Porter, Brooks & Phillips, Eugene R. Groves, Baton Rouge, for plaintiff-appellant.
    John Schwab, Baton Rouge, for Dixie Elec. Membership Corp., defendant-appel-lee.
    Marshall B. Brinkley, Baton Rouge, for Louisiana Public Service Commission, defendant-appellee.
   SUMMERS, Chief Justice.

In December of 1976 Gulf States Utilities Company petitioned for a cease and desist order from the Louisiana Public Service Commission. It alleged that Dixie Electric Membership Corporation had or was extending electric service to a lift station and sewerage treatment plant for the town of Livingston in violation of Section 123 of Title 45 of the Revised Statutes and the Commission’s General Order of March 12, 1974 entitled “Duplication of Electric Service.”

Gulf States has, since 1957, maintained and operated an electric distribution line in the town of Livingston and along Red Oak Road in and just south of the town. Its facilities were available to provide electric service to any development in that area. In August 1975, Dixie extended its lines to serve a lift station and treatment plant just south of the town of Livingston, its line being parallel to and within eighty feet of Gulf States’ facilities along Red Oak Road. The cost of this extension by Dixie is estimated at $33,000. In order to accomplish this extension Dixie converted an existing single-phase line to a three-phase line and constructed a new three-phase line which paralleled an existing Gulf States line along Red Oak Road. Dixie’s point of connection to the new plant was within 300 feet of' Gulf States’ line along Red Oak Road which Gulf States contends is in violation of Section 123 of Title 45 of the Revised Statutes. Gulf States also complained Dixie’s overall extensions represented duplication of existing electric distribution facilities in disregard of the Commission’s General Order of 1974 issued by the Commission to eliminate such duplication of electric service.

The matter was heard on May 27, 1977 by an appointed examiner for the Commission. In a decision rendered by three members of the Commission with two dissents on December 15,1977, the Commission dismissed Gulf States’ complaint finding that the expansion of the single-phase line to three-phase by Dixie did not violate Section 123. Dixie’s expansion, the Commission found, was part of its overall 1973-74 work plan. Additionally, the Commission held that the construction of a new three-phase line to the treatment facility did not violate its General Order because the parallel line of Gulf States was preemptive; that is, it was constructed to serve no potential customer and built in order to preempt other utility company expansion. Finally, the Commission ruled that the line constructed by Dixie to the facilities was permissible because it served to accommodate customer choice for a facility whose main point of connection at the treatment plant was beyond the 300-foot prohibition of Section 123.

Pursuant to Section 21(E) of Article IV of the Constitution, and Section 1192 of Title 45 of the Revised Statutes, Gulf States appealed to the Nineteenth Judicial District Court, alleging that the Commission order was arbitrary, capricious and unreasonable and was based upon an error of law. Accordingly, Gulf States prayed that the Commission’s order be reversed and that Dixie be prohibited from providing electric service to the lift station and treatment plant and that the newly constructed line to that facility be removed.

Based upon a stipulation of the parties the District Court rendered its judgment on August 16, 1974 upon the record made before the Commission. The District Court held that Dixie had unlawfully extended its ' meter connection to one section of the facility, the lift station, which was located 132 feet from an existing Gulf States customer along Red Oak Road, and, therefore, Dixie’s meter connection had to be removed. However, the court found that Dixie’s meter to the treatment plant was outside the 300-foot perimeter of Gulf States’ customer along Red Oak Road and service by Dixie to the treatment plant could continue. The Commission’s order allowing Dixie to expand its single-phase line to three-phase to service the plant was upheld by the trial judge based upon his understanding of this Court’s standard for judicial review of decisions involving Commission interpretation of its orders and regulations.

Thus the trial court ruling, in effect, allowed both utilities to provide service to the sewerage plant, Gulf States to the lift station and Dixie to the treatment plant, causing a division in customer service.

Gulf States appealed to this Court contending that the District Court erred 1) in finding that Dixie could legally provide electric service to the treatment plant, 2) in applying the regulatory law and policy of the State to the facts of this case and 3) in refusing to recognize Gulf States’ right and duty to provide electric service to the treatment plant.

Dixie answered the appeal contending that the trial court erred in its finding that Dixie unlawfully extended an electric line to furnish electric service to the lift station, praying that the judgment be modified to permit it to serve both the lift station and the treatment plant.

Reference to this record and particularly the exhibits establish that Dixie multi-phased approximately four miles of one-phase line and built approximately 3,000 feet of new line parallel to Gulf States’ existing line to serve a meter point within 150 feet of Gulf States’ existing line.

Heretofore, in Louisiana Power & Light Co. v. Louisiana Public Service Commission, 353 So.2d 718 (La.1977), the Commission rendered an order finding

“that the purpose of its General Order dated March 12, 1974, entitled ‘Duplication of Electric Service’ was to effect economics in the service of electricity and thus keep rates within reasonable bounds. Uneconomic and wasteful practices are prohibited. The extension of facilities by one electric utility to serve customers readily accessible by facilities of an electric public utility already providing service in the immediate area is not in the public interest and such practices ultimately lead to wasteful competition and unwise expenditures. The facilities constructed by Louisiana Power and Light Company clearly indicate a wasteful practice since the existing facilities of Claiborne can serve the prospective customers at lesser costs by simple extensions of the existing facilities.” (emphasis added).

This interpretation of the 1974 General Order is particularly pertinent here. What Dixie has done in the case at hand falls squarely within the Commission interpretation of its 1974 General Order in Louisiana Power & Light Co. v. Louisiana Public Service Commission, supra.

Our interpretation of the 1974 General Order in that same case is also appropriate here:

“The Commission’s General Order of March 12, 1974, which Louisiana Power asserts does not support the decision in this case, purports to require the most economical and least wasteful utilization and development of electric public utility facilities. The order was promulgated to effect economics in the service of electricity, maintain rates within reasonable bounds, and prohibit uneconomic and wasteful practices. Paralleling and duplication of existing transmission and distribution lines or the extension of either by electric public utilities to serve customers readily accessible to like facilities of an electric public utility already providing service in the immediate area is not in the public interest according to the order. Such practices ultimately lead to wasteful competition and unwise expenditures and investments burdening the rate payer.
“The order recognizes that in some areas there is no clear line of demarcation between the service area of public utilities, and finds that the service area of an electric public utility is that area which, as a result of the existence of transmission and distribution lines, is readily accessible by economically feasible extensions from such existing facilities, including customers already receiving service.” 353 So.2d at 720 (emphasis added).

In the instant case in addition to rephasing four miles of existing lines, Dixie constructed 3,000 feet of new line paralleling Gulf States’ existing lines to serve the town’s sewerage facility. At that time Gulf States line was 155 feet from the lift station and 630 additional feet from the sewerage plant. Clearly when Dixie metered the lift station 155 feet from Gulf States’ lines it violated Section 123’s mandate that

“No electric public utility shall construct or extend its facilities, or furnish, or offer to furnish electric service to any point of connection which at the time of the proposed construction, extension or service is being served by, or which is not being served but is located within 300 feet of an electric line of another electric public utility, except with the consent in writing of such other electric public utility . . .”

And under the Commission’s interpretation of its 1974 General Order and this Court’s like interpretation, permitting Dixie to serve the treatment plant a mere 630 feet away from Gulf States meter at the lift station under the facts of this case is not in the public interest. Such a practice will ultimately lead to wasteful competition and unwise expenditures and investments burdening the rate payer.

Undoubtedly Gulf States was capable of furnishing the most economical and least wasteful service, without the necessity of the extensions required by Dixie. In effect Gulf States was already providing service in the immediate area and the broader proscriptions of the 1974 General Order against duplication of facilities “readily accessible” within the “immediate area” of existing facilities is applicable. This decision is moreover consistent with the Commission’s former application of the 1974 General Order to a similar situation in Louisiana Power & Light Co. v. Louisiana Public Service Commission, 353 So.2d 718 (La.1977).

For the reasons assigned, the judgment of the trial court is affirmed insofar as it required Dixie to dismantle that portion of the Red Oak Road line which extends service to the lift station with Gulf States to provide this service.

It is further ordered, that there be judgment herein reversing that part of the Commission’s Order Number U-13278 allowing Dixie to continue to serve the treatment plant, and Dixie is ordered to dismantle that portion of the Red Oak Road line which extends electric service to the treatment plant.

      . La.Rev.Stat. 45:123:
      “No electric public utility shall construct or extend its facilities, or furnish, or offer to furnish electric service to any point of connection which at the time of the proposed construction, extension, or service is being served by, or which is not being served but is located within 300 feet of an electric line of another electric public utility, except with the consent in writing of such other electric public utility; provided, however, that nothing contained herein shall preclude (a) any electric public utility from extending service to an applicant for service at an unserved point of connection located within 300 feet of an existing electric line of such electric public utility, unless (i) such line was not in operation on April 1, 1970 and (ii) the point of connection is located within 300 feet of an existing electric line, of another electric public utility, which line was in operation on said date, or (b) any electric public utility from extending service to its own property, or to another electric public utility for resale; and provided further that any consumer who feels aggrieved with the electric service being received by him may apply to the Louisiana Public Service Commission for an order directed to his present supplier to show cause why the consumer should not be released from said supplier, and if the commission shall find that the service rendered to such consumer is inadequate and will not be rendered adequate within a reasonable time the release shall be granted.
      “As used in this section, and ‘electric line’ is a line constructed and operated for the transmission and/or distribution of electricity and which was not originally constructed for the principal purpose of preempting territory.
      “The provisions of this section shall not apply to municipally-owned or operated utilities of the State of Louisiana or to the parish of Orleans. Nothing in R.S. 45:121, 45:123, 45:1161, 45:1175 or R.S. 12:426 shall alter the rights or authority of municipalities.”

      . The order mandates:
      “[T]hat no extension of electric transmission or distribution lines shall be made by an electric public utility that will duplicate the transmission and distribution lines (as defined in Louisiana Revised Statute 45:123) of another like utility, nor shall extensions be made to serve customers that could be served from such electric public utility facilities already in existence in an economic and justifiable manner.”

      . This finding of the Commission violates its well-established rule in three separate adjudications involving these parties. In Dixie Electric Membership Corporation v. Gulf States Utilities Company, Docket No. U-12806, the Commission held: “The Commission is of the opinion that lines erected prior to April 1, 1970 should not be declared preemptive.” In Gulf States Utilities vs. Dixie Electric Membership Corporation, Docket No. U-12846 the Commission held: “The Commission is of the opinion that lines erected prior to April 1, 1970 should not be declared preemptive.” Again in Gulf States Utilities Company v. Dixie Electric Membership Corporation, Docket No. U-12851, the Commission held: “The Commission is of the opinion that lines erected prior to April 1, 1970 should not be declared preemptive.” Because Gulf States’ line along Red Oak Road was erected in 1957 the Commission could not find it to be preemptive under its repeated decisions. It would be arbitrary and capricious to do so.


source: Caselaw Access Project

author:
WATSON, Justice.
     DENNIS, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Joseph W. JOHNSON.
    No. 65813.
    Supreme Court of Louisiana.
    March 3, 1980.
    Rehearing Denied April 7, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., for plaintiff-appellee.
    Gamm, Greenberg & Kaplan, Irving M. Greenberg, Shreveport, for defendant-appellant.
   WATSON, Justice.

Defendant, Joseph W. Johnson, was indicted for second degree murder and attempted second degree murder in violation of LSA-R.S. 14:30.1 and LSA-R.S. 14:27. The indictment alleged that defendant murdered Estella Allen and attempted to murder Jimmy S. Allen, Jr., her son. The jury found defendant guilty as charged and he was sentenced to life imprisonment for second degree murder and to thirty years hard labor for the attempted second degree murder. Defendant has appealed, asserting twelve assignments of error. All but one of .these assignments involve well-settled and recognized principles of law, and do not warrant discussion here.

ASSIGNMENT OF ERROR ' NUMBER EIGHT

Defendant contends that the trial court erred in allowing the introduction of hearsay testimony.

Two of the murder victim’s friends made statements regarding the relationship between her, her husband and defendant. The State attempted to show that Estella had intended to return to her husband by the testimony of these witnesses. Both said that defendant Johnson was Estella Allen’s “boyfriend” (Tr. 11, 19). One added that Estella was separated from her husband.

On direct examination by the State, Clara Bolden testified that she spoke with Estella Allen a few days before her death. Defense counsel’s objection to the substance of Estella’s conversation was sustained. Defense counsel’s objection to Clara Bolden’s account of what she had said was overruled. Ms. Bolden stated, “I told her I was happy for her . . .” (Tr. 13). Defendant’s hearsay objection to further inquiry was sustained. Later, the trial court overruled a defense objection and allowed the witness to state: “I was happy that her and her husband were getting back together. And what was she going to do about Joe.” (Tr. 14)

Ann Thomas testified that she spoke to the victim the day before her death and told Estella she was glad Estella had decided to go back to her husband (Tr. 21-22). No objection was made to the question eliciting this statement. Defendant claims a general objection was made, but the record does not support this assertion. Since no contemporaneous objection was made to this response, LSA-C.Cr.P. art. 841, only the testimony of Clara Bolden is at issue.

An out-of-court assertion by a testifying witness differs from other hearsay. State v. Monroe, 345 So.2d 1185 (La.,1977); State v. Launey, 335 So.2d 435 (La.,1976); State v. Hayes, 306 So.2d 705 (La.,1975); State v. Jacobs, 281 So.2d 713 (La.,1973). The declarant is available for cross-examination, and defendant is not deprived of his right to confrontation. The United States Supreme Court has noted:

“There is good reason to conclude that the Confrontation Clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination.” California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970).

However, in State v. Martin, 356 So.2d 1370 (La.,1978) the definition of hearsay proposed by Professor McCormick was adopted as follows:

“ ‘Hearsay evidence is testimony in court, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting its value upon the credibility of the out-of-court asserter.’ C. McCormick, Evidence, § 246 (Cleary ed. 1972).” Id., 356 So.2d at 1374.

This definition does not allow an exception when the declarant testifies and is available for cross-examination.

Since the out-of-court statement of the testifying witness was introduced to show that Estella Allen intended to return to her husband, the statement was inadmissible hearsay under the definition adopted in Martin. LSA-R.S. 15:434. The evidence was erroneously admitted. However, “[ojften an erroneous ruling admitting an unsworn out-of-court assertion by a testifying witness will not present grounds for reversal,” State v. Martin, 356 So.2d 1374.

The admission of this evidence was not unduly prejudicial to the accused. Defendant testified that he thought Estella had ceased taking birth control pills and wanted to become pregnant so he would marry her (Tr., Vol. Ill, 252-253). He claimed ignorance of any plans she may have had to return to her husband. Estella’s father and husband also testified that she had not planned a reconciliation. There was no evidence to show defendant thought Estella might leave him, and a lack of proof of the motive the State tried to imply. The absence of support for this motive minimizes any prejudice resulting from the trial court’s ruling. When this factor is considered with the fact that the defendant was able to confront the witnesses giving the hearsay testimony, there is no reversible error. LSA-C.Cr.P. art. 921.

Since all of the assignments of error are without merit, the conviction and sentence of defendant are affirmed.

AFFIRMED.

CALOGERO, J., concurs.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

Defendant’s assignment of error number eight appears to have merit. The witnesses’ testimony was relevant only to convey to the jury the victim’s out of court statements. These extra-judicial statements were offered as assertions to show the truth of the matter asserted therein, i. e., that the victim intended to leave defendant and go back to her husband. Since there was no evidence that her intention was ever communicated to defendant, the statement did not lead to an inference of any reaction by defendant to her undisclosed intention. State v. Weedon, 342 So.2d 642 (La.1977).

Moreover, it is incorrect to excuse the introduction of inadmissible hearsay on the grounds that a witness who has heard hearsay appears in court and is subject to cross-examination. State v. Martin, 356 So.2d 1370, 1374 (La.1978) does not stand for this proposition, but only for the notion that often it will be harmless error to admit hearsay if the declarant of the out of court statement appears as a witness in court.

       Chief Judge PAUL B. LANDRY participated in this opinion as Justice ad hoc in place of SUMMERS, C. J.

       This was filed in the trial court as assignment number five, but we have used the number designated in brief.


author:
      WATSON, Justice.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Joe Edward WILLIAMS.
    No. 65833.
    Supreme Court of Louisiana.
    March 3, 1980.
    Rehearing Denied April 7, 1980.
    Gilmer P. Hingle, Smith & Hingle, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Nancy F. Gilliland, Asst. Dist. Atty., for plaintiff-appellee.
   WATSON, Justice.

Defendant, Joe Edward Williams, was convicted of simple burglary in violation of LSA-R.S. 14:62. Since the trial court erred in finding that defendant was able to understand the proceedings and assist counsel in his defense, the other issues presented by the appeal will not be considered.

Two psychiatrists, Dr. Merritt N. Dear-man and Dr. John N. Richie, were appointed to a sanity commission to determine whether defendant had the capacity to stand trial. The evidence at the contradictory hearing was as follows:

Dr. Richie concluded that Williams is moderately retarded, suffering from a severe speech disorder and hampered by an extremely primitive ability to cope. Williams cannot read or write, remember his address or his attorney’s name. Dr. Richie found defendant incompetent because of an impaired ability to communicate; failure to comprehend the import of the charges against him; and lack of understanding of the legal system.

To Dr. Dearman, Williams, who has no employment history, appeared dull and apprehensive with a marked speech impediment. His judgmental capacity is impaired by an inability to concentrate and a limited education. Defendant Williams has no awareness of current events. He has a sparse fund of general knowledge illustrated by the fact that he does not know the name of the President of the United States. Dr. Dearman stated that Williams is intellectually deficient and mildly retarded, functions at the third grade level and has a low tolerance for stress. Dr. Dearman concluded that defendant’s ability to aid his attorney is impaired.

Defendant has the burden of showing that he is incompetent within the meaning of LSA-C.Cr.P. art. 641:

“Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.”

The twofold test of mental capacity to stand trial under this article is: (1) whether the accused fully understands the consequences of the proceedings; and, (2) whether he has the ability to assist in his defense by consultation with counsel. State v. Weber, 364 So.2d 952 (La.,1978); State v. Yaun, 237 La. 186, 110 So.2d 573 (1959); Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). A defendant can be incompetent in this sense even though free of psychosis, oriented as to time and place and aware of his surroundings. State v. Bennett, 345 So.2d 1129 (La.,1977); Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). Being mentally retarded or of subnormal intelligence is not in itself proof of incapacity. State v. Lawrence, 368 So.2d 699 (La.,1979); State v. Morris, 340 So.2d 195 (La.,1976). However, when substandard mental ability combines with other problems to prevent a defendant from rationally assisting his counsel, a fair trial cannot proceed. State v. Coco, 371 So.2d 803 (La.,1979); State v. Augustine, 252 La. 983, 215 So.2d 634 (1968).

Where there is conflicting medical testimony, a trial judge’s determination of defendant’s capacity to stand trial is entitled to great weight. State v. Collins, 370 So.2d 533 (La.,1979). Here, however, the members of the sanity commission were substantially in accord. The defendant is mildly to moderately retarded and has a speech handicap which makes communication difficult. This handicap disables him both in advising counsel of facts pertinent to his defense and in testifying. Dr. Dear-man concluded that defendant’s ability to assist counsel would be “moderately impaired”. Dr. Richie thought Williams incompetent because of inability to communicate and lack of understanding of the proceedings against him. The medical testimony is that defendant’s ability to assist in his defense is significantly impaired by his mental condition in conjunction with his speech defect. There is no evidence of capacity to stand trial; the evidence is all to the contrary. The trial court erred in finding Williams competent. Defendant’s conviction and sentence must be annulled and set aside, and the case remanded to the trial court for commitment in accordance with LSA-C.Cr.P. art. 648.

DECREE

For the reasons assigned, defendant’s conviction and sentence are annulled and set aside, and the matter is remanded.

DENNIS, J., concurs with reasons.

LANDRY, J. Ad Hoc, dissents.

DENNIS, Justice,

concurring.

Although the opinions of the doctors on the sanity commission were divided as to whether defendant has the mental capacity to stand trial, only the court, and not the doctor, is qualified to make this decision. When the appropriate considerations which have been adopted by this Court, see State v. Bennett, 345 So.2d 1129 (La.1977), are taken into account, the evidence is clear and convincing that the defendant lacked the requisite mental capacity to proceed at the time of his trial.

       Chief Judge PAUL B. LANDRY, JR., participated in this decision as Associate Justice ad hoc, in place of SUMMERS, C. J.

      . Judge Lemmie O. Hightower presided at the hearing.

      . See 4 Columbia Human Rights Law Review 239, “The Accused Retardate." The article quotes a report by the President’s Panel on Mental Retardation which states: “The mentally retarded defendant . . . even though telling the truth, may be unable to give the impression of doing so because he is easily confused under the pressure of an effective cross-examiner. Thus, he might be discredited in the eyes of the judge, jury — or, worse yet, be induced tb testify untruthfully.” 4 Columbia Human Rights Law Review 246.


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

text:
    LEAGUE OF WOMEN VOTERS OF NEW ORLEANS et al. v. The CITY OF NEW ORLEANS et al.
    No. 66024.
    Supreme Court of Louisiana.
    March 3, 1980.
    Rehearing Denied April 7, 1980.

      John F. Robbert, New Orleans, amicus curiae by New Orleans Coalition, Inc.
    Albert Mintz, Patrick J. Browne, Nathan T. Gisclair, Jr., Montgomery, Barnett, Brown & Read, New Orleans, for defendant-respondent, City Council of the City of New Orleans.
    Robert E. Harroun, III, Baton Rouge, for Legislative Auditor, respondent.
    Arthur L. Ballin, New Orleans, for Bd. of Assessors, respondents.
    Salvador Anzelmo, Acting City Atty., Debra J. Fischman, Asst. City Atty., for defendants-respondents, the Mayor of the City of New Orleans and the City of New Orleans.
    Vernon V. Palmer, New Orleans, for plaintiffs-applicants, League of Women Voters of New Orleans, et al.
    Richard J. McGinity, McGinity & McGinity, New Orleans, for Bd. of Levee Commissioners of the Orleans Levee District, respondent.
   WATSON, Justice.

This case presents basically the question of whether plaintiffs are entitled to a writ of mandamus directing various governmental agencies and officials' to comply with Act 617 of 1977, as amended by Act 614 of 1978, thereby recouping for the City of New Orleans and the Orleans Levee Board certain revenues alleged to have been lost through failure to comply with Article 7, Section 23 of the Louisiana Constitution of 1974.

Plaintiffs are the League of Women Voters of New Orleans, a nonprofit corporation; Nancy Turner, the President of the League, who alleges that she is a taxpayer, voter and citizen of New Orleans; and, Betty Wisdom, who also alleges that she is a voter and taxpayer in Orleans Parish. Both Ms. Turner and Ms. Wisdom assert that they regularly pay ad valorem property taxes of the City of New Orleans.

Defendants are the City of New Orleans and its Mayor; the City Council of New Orleans, and the members of the City Council individually; the Board of Levee Commissioners of the Parish of Orleans; the Board of Assessors of Orleans Parish, and the Assessors individually who comprise the Board; and, the Legislative Auditor of the State of Louisiana.

In April 1979, the League and the two taxpayer plaintiffs filed suit seeking a writ of mandamus against the defendants. Plaintiffs asserted that Article 7, Section 23 of the Louisiana Constitution of 1974 provided for a new system of property appraisal in Louisiana whereby each tax recipient agency was required to adjust its millage for 1978 to provide the same revenue as in the preceding year. They alleged that in Orleans Parish, as a result of erroneous information furnished by the Assessors, the 1978 millage was incorrectly and unconstitutionally fixed, causing the City and Levee Board to lose several million dollars in tax revenue.

Plaintiffs contend that Act 617, as amended, provided the remedy for this tax shortfall. Plaintiffs allege that Section 4 of the Act requires the Assessors to furnish to the taxing authorities (here, the City Council and Levee Board) a correct statement of the assessed value of taxable property on the tax rolls in 1977 as distinguished from the'property which was subject to taxation for the first time in 1978. They allege that the Assessors submitted erroneous figures and have failed to supply a correct statement as required.

Second, plaintiffs allege that because the statement supplied by the Assessors caused an undercollection of taxes in 1978, the City Council and Levee Board are required by Section 5 of the Act to recompute the millage for 1979 and subsequent years according to a specified formula and to impose “an adjustment for 1979 only” to recoup the 1978 losses. Plaintiffs admit that in Ordinance Number 7647 M.C.S. passed on April 5, 1979, the City Council purported to carry out the recomputation required by Section 5, but complain that the Council failed to impose the adjustment.

Third, plaintiffs contend that the City Council violated Section 5 of the Act by setting the millage level of the Levee Board without statutory authority or authorization from the Levee Board to do so and that even if it had such authority, it violated the section by failing to impose the adjustment on the Levee Board’s behalf. Plaintiffs contend that the Levee Board failed to carry out its duties to recompute and set its own millage by proper authorization and also failed to require the “1979 only” re-coupment.

Finally, plaintiffs view Section 7 of the Act as imposing a ministerial duty on the Legislative Auditor to intervene and order changes in the required millage or adjustment because the City Council and Levee Board failed to do as required.

In response to plaintiffs’ original petition and amended petition, the latter adding the Assessors as parties defendant and elaborating on plaintiffs’ contentions, the various defendants filed several pleadings. The City of New Orleans and its Mayor, as well as the City Council of New Orleans and the Council members filed pleadings answering plaintiffs’ petitions, denying their claims, and asserting that plaintiffs have no cause and no right of action. The Levee Board adopted the pleadings filed on behalf of the City of New Orleans. The Legislative Auditor filed an extensive answer asserting chiefly that he has carried out his duties insofar as possible under the circumstances, and asserting specifically that he has discharged his duties under Act 617.

The Assessor filed an answer to the original petition and the amended petition admitting or denying various allegations made by plaintiffs and asserting a third party demand seeking an alternative writ of mandamus directing the City Council of New Orleans and its members to reduce the millage for ad valorem property taxes for 1979 in accordance with the disputed constitutional provision and seeking also an alternative writ of mandamus directed to the Legislative Auditor requiring him to comply with Section 7 of Act 617.

The City Council answered the third party petition asserting principally that they have performed their duties in good faith and their errors, if any, were caused by the fault of the Assessors, the third party plaintiffs.

The Legislative Auditor also answered the third party demand alleging that he had carried out his responsibilities under the constitutional and statutory provisions in question.

RULING OF THE TRIAL COURT:

A hearing was held on August 8, 1979, but apparently no testimony was taken or evidence introduced. The trial court ruled that after considering the pleadings, memo-randa, arguments, law and record, the court was of the opinion that Act 617, as amended, created only a discretionary duty on the tax recipient bodies mentioned therein. The court further ruled that the law was in favor of the original defendants and against the original plaintiffs, entitling the original defendants to an order dismissing the petitions for mandamus filed by the League, Ms. Turner and Ms. Wisdom. Further, the court held that the law was in favor of the third party defendants and against the third party plaintiffs and dismissed the mandamus petition filed by the Assessors.

PROCEEDINGS IN THE COURT OF APPEAL:

Both the original plaintiffs and the third party plaintiffs applied for supervisory writs in the Court of Appeal, Fourth Circuit. The writs were granted and considered separately.

In Docket Number 10,886, the League of Women Voters of New Orleans v. City of New Orleans, 375 So.2d 1192 (La.App. 4 Cir.1979), the Court of Appeal reversed that portion of the judgment of the trial court which dismissed the third party petition of Lawrence A. Comiskey, Jr., et al., Assessors of the Parish of Orleans and ordered an entry of judgment in their favor overruling the exceptions as to the third party petition in mandamus and remanding for further proceedings in due course. Neither the City Council nor the Legislative Auditor has sought writs from the ruling of the Court of Appeal as to the third party petition.

In Docket Number 10,870, League of Women Voters v. City of New Orleans, 375 So.2d 1187 (La.App. 4 Cir.1979), the Court of Appeal considered the application of the original plaintiffs, the League and the two taxpayers, for supervisory writs from that portion of the trial court judgment which dismissed their petition for writs of mandamus. The Court of Appeal held that plaintiffs “do state a proper basis for proceeding in mandamus against the defendant assessors” and reversed the trial court’s order dismissing the petition against the Assessors. The Court of Appeal held that as to the City of New Orleans and its Mayor, the City Council of New Orleans, and the Orleans Levee Board, the duties under Act 617 are discretionary rather than mandatory. In effect, the Court of Appeal held that the petition of the League and the two taxpayers did not state a cause of action in mandamus against the City and Levee Board, because the actions in question were not ministerial duties of the defendants but discretionary duties. The Court of Appeal also affirmed the dismissal of the petition as against the Legislative Auditor under the theory that his duties were merely derivative from those of the City Council and the Levee Board.

APPLICATION TO THE SUPREME COURT:

The only application to . the Supreme Court was that filed oh behalf of' the League and the two taxpayers seeking a review of the judgment by the Court of Appeal dismissing their petition. Although an opposition was filed, the application was granted, thus having the effect of rejecting the opposition. Neither the Assessors nor the City of New Orleans filed an application for writs. However, because writs were granted to review the ruling of the Court of Appeal, all issues are before the court.

EXCEPTIONS OF NO CAUSE AND NO RIGHT OF ACTION:

The exceptions pleaded by the City of New Orleans and its Mayor, the City Council and its members,, and the Levee Board, may be fairly construed as exceptions of no cause and no right of action. Regardless of whether the defendants filed the proper exceptions, “ . . . the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit, may be noticed by either the trial or appellate court of its own motion.” LSA-C.C.P. art. 927. However, the issue of whether plaintiffs have stated a cause of action is pretermit-ted since the plaintiffs do not have a right of action under the applicable statutory and jurisprudential authorities.

The exception of no right of action calls into question whether the plaintiff has standing or interest required under the law to bring the suit. Stated in the context of the present litigation, the exception of no right of action asks the question whether the League and the two taxpayers have standing to call the various defendants into court and obtain an order against them requiring them to carry out certain governmental functions, here essentially the raising of taxes.

[1 — 3] The individual plaintiffs describe themselves in the amended petition as voters, residents, property owners and taxpayers in Orleans Parish. Their interest in the outcome of this suit is set out in Paragraph 18, as follows:

“The threatened loss of these vital revenues to the defendant Levee Board and defendant City of New Orleans, together with the agencies under its jurisdiction, will cause imminent and irreparable harm by jeopardizing Petitioners Turner and Wisdom’s individual interest in receiving sufficient police, fire and flood protéction, and other essential services.”

The League of Women Voters characterizes itself in the petition as a non-profit organization “dedicated by its Charter and resolutions of its Board to the full and proper utilization of taxes and taxing authority by state and local government.” Their interest in the outcome of the action is also stated in Paragraph 18 of the Amended Petition, as follows:

“The noncollection of these funds will also thwart two basic goals of the petitioner League, which ‘ are, to find increased sources of revenue for City government and to ensure the equitable distribution of taxes based upon principles of ability to pay and benefits received.”

A public right or duty may not be compelled or enforced by a private citizen without a showing of a personal grievance or interest in the outcome. The rule in Louisiana is similar to that stated in Hawkins v. Gregory, 138 Kan. 477, 26 P.2d 247 (1933) where a plaintiff with no special interest apart from the general public was not allowed to maintain an action in mandamus. The court stated:

“[The] state is adequately provided with officers to attend to matters of this sort, and even neglect of or inattention to such duties by public officials does not warrant their assumption by private litigants except where the statutes so provide.”

A plaintiff must have a real and actual interest in the action he asserts, LSA-C. C.P. art. 681. Without a showing of some special interest in the performance sought of a public board, officer or commission which is separate and distinct from the interest of the public at large, plaintiff will not be permitted to proceed. State ex rel. Schoeffner v. Dowling, 168 La. 706, 104 So. 624 (1925); Marshall v. Town of Marksville, 116 La. 746, 41 So. 57 (1906); Jumonville v. Hebert, 170 So. 497 (La.App. 1 Cir.1936); Melancon v. Police Jury of Lafayette, 301 So.2d 715 (La.App. 3 Cir.1974); Cully v. City of New Orleans, 173 So.2d 46 (La.App. 4 Cir.1965); Cleveland v. Martin, 29 So.2d 516 (La.App. 1 Cir.1947); and, Bussie v. Long, 286 So.2d 689 (La.App. 1 Cir.1973), writ refused 288 So.2d 354.

In Schoeffner, the court stated:

“ . . without some peculiar, special, and individual interest, a citizen, though he be a taxpayer, has no standing in court to champion a cause or subject-matter which pertains to the whole people in common, nor has an individual citizen a legal standing in court to enforce the performance of a duty which a public officer owes to the public at large, unless it clearly appears that such individual citizen has a special and peculiar interest in the performance of such duty apart from the interest which he has as one of the general public in having the duty performed.”

In Bussie v. Long, supra, the taxpayers-plaintiffs brought a class action suit to compel the Louisiana Tax Commission to perform an assessment of all property at actual cash value for ad valorem tax purposes. In overruling the Commission’s exceptions of no right of action, the Court of Appeal recognized an exception to the requirement of a particular or special interest set forth in Schoeffner, supra. The court held that when a public official charged with the unlawful performance or the refusal to perform a legal duty discriminates against a taxpayer by increasing his tax burden or otherwise injuriously affecting his person or property, the taxpayer need not show such an interest in order to sustain a right of action. See, e. g., Donaldson v. Police Jury of Tangipahoa Parish, 161 La. 471, 109 So. 34 (1926); Suarez v. Police Jury of Parish of St. Bernard, 203 La. 680, 14 So.2d 601 (1943).

Unlike the taxpayers in Bussie, supra, plaintiffs here do not seek to restrain an increase in the burden of taxation. Instead, they seek to compel an increase. Nor have they shown an injurious effect sufficient to bring them within the purview of the exception. Their general allegations of jeopardy to their interest in receiving sufficient police, fire and flood protection and other services are not peculiar to plaintiffs themselves or even to taxpayers as a class, but are common to the public at large. In addition, these allegations are too remote to justify an action in mandamus. As plaintiffs have made no showing that the revenues, if collected, would have been allocated to these particular services, any assumption as to the intended use of the funds is unwarranted.

The issue of a taxpayer’s ability to sue in that capacity has also been raised in the federal courts. Article III of the United States Constitution confers jurisdiction on the federal courts over “cases and controversies”. The plaintiff must have standing. The question is whether the party seeking relief has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663.

In Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), the court discussed the “case and controversy” requirement:

“In part those words limit the business óf federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to other branches of government.” Id., 392 U.S. at 95, 88 S.Ct. at 1950.

In Flast, the court allowed taxpayers to sue in federal courts to prevent the expenditure of federal funds for purposes prohibited by the Establishment Clause of the First Amendment. The requirements for federal taxpayer standing were set out as twofold. First, the taxpayer .must establish a logical link between his status as a taxpayer and the Act of Congress attacked, and second must show that the challenged Act exceeds a specific constitutional limitation on Congress’ taxing and spending power.

Here, plaintiffs do not attack the statute as unconstitutional. On the contrary, they seek to enforce it. Their claim is based on an unconstitutional levy which is analogous to the misuse of Congress’ taxing and spending power, asserted in Flast v. Cohen, supra. That alone is not enough because they cannot show nor do they claim, that the levy violates some other specific constitutional provision.

The Louisiana Constitution does not contain the “case and controversy” language of the United States Constitution. However, Article 1, Section 22 of the Louisiana Constitution of 1974 provides:

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

This provision guarantees access to the courts, but affords greater protection to fundamental interests than to those not of basic constitutional importance. When a claimant is asserting a right not subject to special constitutional protection, access to the courts may be restricted if there is a rational basis for that restriction. Everett V. Goldman, 359 So.2d 1256 (La.1978). Here access to the courts should be restricted to persons with a special interest apart from the interest of the general public. ■ Interference by the judiciary at the instance of these plaintiffs would surpass the authority allocated to us in the tripartite system. THIRD PARTY DEMAND:

Although all issues are before the court by virtue of the granting of writs, there has been no allegation by any party that the Court of Appeal erred in overruling the exceptions to the third party petition and remanding for further proceedings. Therefore, we will not disturb that ruling of the Court of Appeal on the third party demand.

DECREE:

Defendants’ exception of no right of action is maintained. The petition and the amended petition of the League, Ms. Turner, and Ms. Wisdom against the City of New Orleans and its Mayor; the City Council of New Orleans, and the members of the City Council individually; the Orleans Levee Board, and the Legislative Auditor are dismissed, as ordered by the Court of Appeal and the trial court. The judgment of the Court of Appeal in favor of the plaintiffs and against the Assessors is reversed and plaintiffs’ petitions are dismissed as against the Assessors. No judgment is entered as to the third party demand; the case is remanded for further proceedings according to law.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

CALOGERO, J., concurs and assigns reasons.

DIXON and DENNIS, JJ., dissent with reasons.

CALOGERO, Justice,

concurring.

I concur. I would not disturb the Court of Appeal ruling in this case in any respect. Accordingly, I concur in the Court’s ruling insofar as it dismisses relators’ mandamus petition against the City of New Orleans and its Mayor, the City Council of New Orleans, and the members of the City Council individually, the Levee Board, and the Legislative Auditor of the State of Louisiana, but for the reasons given by the Court of Appeal.

DIXON, Justice

(dissenting).

I respectfully dissent, and would not hold that these plaintiffs have no right of action to force compliance with the law. There is not, as there was in Everett v. Goldman, 359 So.2d 1256 (La.1978), a statute restricting access to the courts. The “special and peculiar” interest of plaintiffs in Bussie v. Long, 286 So.2d 689 (La.App.1973), was no more “special and peculiar” than that of plaintiffs in this case. The rule is an arbitrary one subject to abuse, denying access to the courts for those with a real and actual interest in the suit.

DENNIS, Justice,

dissenting.

I respectfully dissent for reasons similar to those given by Justice Dixon. The rule announced today by the majority flies in the face of the constitution and our more recent jurisprudence.

In Stewart v. Stanley, 199 La. 146, 5 So.2d 531 (1941), we held that, “It is the firmly established jurisprudence of this State that a taxpayer may resort to judicial .authority to restrain public servants from transcending their lawful powers or violating their legal duty in any unauthorized mode which would increase the burden of taxation or otherwise unjustly affect the taxpayer or his property. The fact that the taxpayer’s interest might be small and not susceptible of accurate determination is not sufficient to deprive him of the right. The action is regarded as having a public character and as being a proceeding in which the public complains. * * * ” This rule was followed in Woodard v. Reily, 244 La. 337, 152 So.2d 41 (1963) and Upper Audubon Ass’n v. Audubon Park Comm’n, 329 So.2d 206 (La.App. 4th Cir.1976) (writs denied 333 So.2d 240) (La.1976). (“To show standing in Louisiana a taxpayer need only show an effect upon the public fisc by the government action in question.”)

Considering this recent jurisprudence, and the absence of a statute restricting a taxpayer’s access to the courts, there appears to be no rational basis for the restrictive rule adopted by the majority.

       Chief Judge PAUL B. LANDRY participated in this opinion as Justice ad hoc in place of SUMMERS, C. J.

      . Act 617 of 1977, as amended by Act 614 of 1978:
      Section 1. Each assessor, except in the parish of Orleans, is hereby directed to furnish to each tax recipient body within the parish by May 1, 1978, a statement showing the assessed value of all taxable property appearing on the 1977 tax roll after revaluation and reassessment, and application of increased homestead exemptions as required by Article VII of the Louisiana Constitution of 1974 and Act 387 of the 1976 Regular Session of the Louisiana Legislature. In the parish of Orleans, each assessor shall furnish to each tax recipient body within the parish by November 1, 1977, a statement showing the assessed value of all taxable property appearing on the 1977 tax roll after revaluation and reassessment, and application of increased homestead exemptions, as such information is reported to the Louisiana Tax Commission, and as required by Article VII of the Louisiana Constitution of 1974 and Act 387 of the 1976 Regular Session of the Louisiana Legislature.

        Section 2. Each tax recipient body, including multi-parish districts, is hereby directed to utilize the information furnished to them in accordance with Section 1 of this Act to compute the amount of millage required to be levied on the adjusted assessment roll for 1977 that would produce approximately the same result as was produced by levying the millages on the 1977 tax roll. Such computations shall result in millages rounded to the nearest one hundredth of a mill. Each tax recipient body is further directed to levy on the 1978 tax roll the millages obtained in the foregoing computation. In the case of multi-parish districts, the millage to be levied is to be uniform throughout the district and is to be determined on the basis of total assessments within the district.
      Section 3. In those cases where the maxi-mum authorized millage was not levied on the 1977 tax roll, such authorization shall be adjusted in the same proportion as the adjustment for millages levied in 1977.
      Section 4. After the 1978 tax rolls have been filed, and prior to the date for levying millages for the 1979 tax rolls, each assessor is directed to furnish to each tax recipient body in the parish, a statement indicating the actual amount of the assessed value of all taxable property for that body, exclusive of property subject to taxation for the first time in 1978.
      Section 5. Should the information furnished by the assessor as required in Section 4 of this Act indicate that taxes were over-levied or under-levied by one percent or more on the 1978 tax roll because of errors in the information furnished as a result of. Section 1 of this Act, then each tax recipient body is hereby directed to recompute and determine the millages that should have been levied on the 1978 tax rolls in compliance with Article VII, Section 23 of the Louisiana Constitution of 1974. Each tax recipient body is further directed to use the mil-lages obtained by such recomputation to levy millages for 1979 and subsequent years. An additional adjustment for 1979 only shall be made if necessary to compensate for any deviations of one percent or more from the amounts that should have been levied on the 1978 tax roll.
      Section 6. The provisions of this Act shall not apply to millages levied for the purpose of paying interest and principal of ad valorem tax bonds.
      Section 7. In order to carry out the mandate of Article VII, Section 23, of the Louisiana Constitution of 1974, the legislative auditor is hereby authorized and required to review the millages levied by each tax recipient body to determine whether the millages levied are in compliance with the provisions of this Act. and the constitution. The auditor shall review both the initial levy under Section 2 of this Act as well as the recomputation and new levy as required in Section 5 of this Act. The auditor shall order changes in the amount of millage levied if it determines that an error or errors have been made in the adjustment of millages as required by this Act and the Louisiana Constitution of 1974.
      Section 8. This Act shall become effective upon signature of the governor, or, if not signed by the governor, upon expiration of the time for bills to become law without signature by the governor, as provided by Article III, Section 18 of the constitution.
      Section 9. If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items or applications of this Act which can be given effect without the invalid provisions, items or applications, and to this end the provisions of this Act are hereby declared severable.

      . Article 7, Section 23 of the Louisiana Constitution of 1974:
      § 23. Adjustment of Ad Valorem Tax Millages
      Section 23. Prior to the end of the third year after the effective date of this constitution, the assessors and the Louisiana Tax Commission or its successor shall complete determination of the fair market value or the use value of all property subject to taxation within each parish for use in implementing this Article. Except as provided in this Paragraph, the total amount of ad valorem taxes collected by any taxing authority in the year in which Sections 18 and 20 of this Article are implemented shall not be increased or decreased, because of their provisions, above or below ad valorem taxes collected by that taxing authority in the year preceding implementation. To accomplish this result, it shall be mandatory for each affected taxing authority, in the year in which Sections 18 and 20 of this Article are implemented, to adjust millages upwards or downwards without regard to millage limitations contained in this constitution, and the maximum authorized mil-lages shall be increased or decreased, without further voter approval, in proportion to the amount of the adjustment upward or downward. Thereafter, such millages shall remain in effect unless changed as permitted by this constitution. Nothing herein shall prohibit a taxing authority from collecting, in the year in which Sections 18 and 20 of this Article are implemented or in any subsequent year, a larger dollar amount of ad valorem taxes by (a) levying additional or increased millages as provided by law; (b) placing additional property on the tax rolls; or (c) increases in the fair market or use value of property after the first determination of that value to implement this Article. This Section shall not apply to millag-es required to be levied for the payment of general obligation bonds.

      . The City in particular vigorously assails the plaintiffs’ status to maintain the suit.

      . The record does not contain exceptions filed as to the third party petition; the Court of Appeal apparently considered the allegations of the answers filed to be in the nature of exceptions and reversed the judgment of the trial court which dismissed the third party petition.

      . The Court of Appeal spoke in terms of “exceptions leveled at the right” of action but used the term to actually mean cause of action. Under our analysis of this feature of the case, as will be noted infra, the correct disposition of this feature of the case is to sustain the exception of no right of action.

      . There is authority in other jurisdictions to the contrary. See People ex rei. Sanaghan v. Swa-Iec, 22 Ill.App.2d 374, 161 N.E.2d 352 (1959); State ex rel. Williams v. Glander, 80 Ohio App. 527, 69 N.E.2d 226 (1946); General Building Contractors of New York, Inc. v. County of Oneida, 282 N.Y.S.2d 385, 54 Misc.2d 260 (1967).


author:
DIXON, Justice.
     MARCUS, Justice

text:
    STATE of Louisiana v. Paul J. COLLINS.
    No. 64779.
    Supreme Court of Louisiana.
    March 3, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., W. C. Douglas Friederi-chsen, Abbott J. Reeves, Asst. Dist. Attys., for plaintiffs-respondents.
    • George C. Ehmig, Gretna, for defendant-relator.
   DIXON, Justice.

The relator was found not guilty of a crime by reason of insanity and committed to a mental institution. There was subsequently a remission of his mental disease, accomplished through the continued administration of drugs. Writs were granted to consider whether relator’s “synthetic sanity” required his release from the mental institution.

The facts are not in dispute. Collins was charged with attempted armed robbery. At arraignment on April 27, 1978 he pleaded not guilty and not guilty by reason of insanity. Acting on the report of an appointed sanity commission the trial court found the relator incompetent to stand trial. He was committed to the East Louisiana State Hospital on April 28, 1978. When hospital officials, on September 7, 1978, certified the relator competent to stand trial, he was. returned to Jefferson Parish. The case was submitted without a jury. The state and the defense stipulated to the testimony of two psychiatrists, both of whom were of the opinion that Collins was unable to distinguish between right and wrong at the time of the commission of the crime. The trial court, on September 28, 1978, found the relator not guilty by reason of insanity, and remanded him to the East Louisiana State Hospital.

Seven months later officials of the hospital reported that the relator’s psychosis was in remission and that in his present mental condition he posed no danger. He was returned to the trial court for a hearing on his release. At the hearing the relator’s hospital records were introduced and two psychiatrists who had examined the relator testified. The psychiatrists testified to essentially the same thing: that if the relator followed the medical regimen recommended by his psychiatrists (including daily medication) he would not pose a danger either to himself or to society if he were released. Both also testified in much more tentative terms that it was their opinion that if the relator stopped taking his medication he would probably suffer a relapse and in those circumstances he could pose a danger to himself and others.

At the end of the hearing, the trial court expressed its intention to see if the relator could be released under supervision. When it ruled a week later, however, the trial court directed that the relator be returned to the East Louisiana State Hospital for further treatment. The court expressed its inclination against “fostering upon the public at this time an unstable individual who has the propensity to remit.” We granted writs to review that action of the trial court.

This court addressed the issue of synthetic sanity in State v. Hampton, 253 La. 399, 218 So.2d 311 (1969). In that case we held that a defendant in a criminal trial was competent to stand trial even though a remission of his psychotic symptoms had been achieved only through the administration of tranquilizing drugs. We felt that to look beyond the defendant’s condition and find him incompetent because that condition was chemically induced would be to “erase improvement produced by medical science.” 253 La. at 403, 218 So.2d at 312. We therefore held that the fact that the remission had occurred because of the administration of medication was of no legal significance. Similarly, in the case at bar, we cannot ignore the fact that the relator at present poses no danger to society or to himself merely because the improvement in his condition was caused by the very treatment which he was sent to East Louisiana State Hospital to receive. To do so would be to disregard the fact that the assiduous application of the knowledge of medical science can indeed transform' patients into contributing members of society.

C.Cr.P. 657, pertaining to the release of persons committed after being found not guilty by reason of insanity, provides:

“After considering the report or reports filed pursuant to Articles 655 and 656, the court may either continue the commitment or hold a contradictory hearing to determine whether the committed person can be discharged, or can be released on probation, without danger to others or to himself. At the hearing the burden shall be upon the committed person to prove that he can be discharged, or can be released on probation, without danger to others or to himself. After the hearing the court may order the committed person discharged, released on probation subject to specified conditions for a fixed or an indeterminate period, or recommitted to the state mental institution. Notice to the counsel for the committed person and the district attorney of the contradictory hearing shall be given at least thirty days prior to the hearing.”

The trial court must certainly be afforded some degree of discretion in making decisions under that statute. It cannot be read, however, to give the court unbridled power to disregard the evidence or to act arbitrarily. It would be meaningless to give a committed person an opportunity to prove that he is not dangerous if the trial court then had the absolute discretion to disregard that proof.

The evidence in the instant case is convincing that the proper course in the trial court was to release the relator subject to such probationary conditions as would insure his compliance with the prescribed medical regimen. C.Cr.P. 657 allows a committed person an opportunity to prove that he should be released on probation. The Official Revision Comment to C.Cr.P. 657, in relation to probationary release, states that “there will be cases in which release is justified only if the defendant is to be carefully supervised upon his return to community life.” That language fits this case. We agree with the trial court that supervision is required. That supervision, however, does not require the relator’s confinement indefinitely. C.Cr.P. 657 clearly provides that non-custodial supervision can be provided through the imposition of whatever probation conditions the trial court finds proper. In light of the uncontested evidence that relator can be safely released on probation subject to conditions insuring that he follow the prescribed regimen, we find that the trial court erred.

For the reasons assigned, the trial court’s . order returning the relator to the East Louisiana State Hospital is vacated, and the case is remanded for further proceedings consistent with this opinion.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents.

MARCUS, Justice

(dissenting).

I disagree with the findings of the majority that relator at present poses no danger to society or to himself and that he can be safely released on probation subject to conditions insuring that he follow the prescribed regimen. While it is true that relator poses no danger to society or to himself so long as he continues to take medication, the testimony of the psychiatrists indicates that if relator discontinues medication, he will likely relapse and become dangerous. The evidence also reveals that the attempted robbery with which relator was charged occurred during a relapse caused by his failure to take medication prescribed by the West Jefferson Mental Health Center. Accordingly, I do not consider that the trial judge abused his discretion in finding that relator failed to carry his burden of proving that he can be discharged, or can be released on probation, without danger to others or to himself. See La. Code Crim. P. art. 657.

Additionally, I consider the majority’s reliance on State v. Hampton, 253 La. 399, 218 So.2d 311 (1969), to be misplaced. In Hampton, our inquiry was limited to whether “defendant presently lacks the capacity to .understand the proceedings.” La. Code Crim. P. art. 641 (emphasis added). We “[did] not look beyond existing competency.” Here, we must look further and determine whether “the committed person can be discharged, or can be released on probation, without danger to others or to himself.” Id. art. 657. Consequently, that in Hampton we considered synthetic sanity to satisfy the standard of art. 641 does not mandate that it satisfies the standard of art. 657.

Accordingly, I respectfully dissent.

       Chief Judge PAUL B. LANDRY, Retired, participated in this decision as an Associate Justice Ad Hoc.


author:
CALOGERO, Justice.
     WATSON, Justice,

text:
    STATE of Louisiana v. April TRUMP.
    No. 65495.
    Supreme Court of Louisiana.
    March 3, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-respondent.
    Nathan S. Fisher, Baton Rouge, for defendant-relator.
   CALOGERO, Justice.

Defendant is a young woman who in this case was for the first time convicted of the offense of prostitution. She had been charged with violating R.S. 14:82(b) which is “the solicitation by one person of another with the intent to engage in indiscriminate sexual intercourse with the latter for compensation”. She was sentenced to twenty days in parish prison and fined $500.

Having no constitutional or statutory right to appeal (Art. 5 Sec. 5(D) La.Const., C.Cr.P. Art. 912.1) defendant applied for writs in this Court contending principally that the state presented no evidence that she solicited anyone to commit an act of sexual intercourse for compensation and that the trial judge accordingly had erred in denying her motion for directed verdict at the close of the state’s evidence.

We granted writs on October 8, 1979. 376 So.2d 327 (La.).

On June 6, 1978, at approximately 4:00 p. m., Officer Auster, a New Orleans police officer who was investigating vice crimes in Baton Rouge, telephoned defendant at 926-6023, a number which was suspected in connection with a call girl operation. He told defendant, who identified herself as Dana, that he was in town from New Orleans and that a guy at Dirty Harry’s Bar recommended her to him. She responded that her business was strictly on a referral basis and that in order to make a date he must have a reference. Later that evening at approximately 7:30 p. m., Officer Cox telephoned defendant pretending to be one “Buck Beech” and asked to speak to “Misty.” Defendant informed him that “Misty” was no longer there and that she was handling Misty’s action. Officer Cox, still pretending to be Buck Beech, told defendant that he had done business with Misty and that he had referred two guys at Dirty Harry’s Bar to her. ' A third telephone call was made by Officer Auster who asked defendant if Buck Beech had contacted her as his reference. She replied that she did not know Buck Beech but that if he came over in person maybe they could do business. Officers Auster and Jusselin went to her apartment located at 8820 Greenwell Springs Road and after identifying themselves as the New Orleans men who had telephoned earlier, they were admitted. The initial conversation focused on the occupations of the two officers. Defendant then asked to see their driver’s licenses. After she was satisfied that they were from New Orleans, she stated that it would cost them $75.00 each for a half hour. Having agreed on the price, Officer Auster accompanied her into her bedroom where in due course she was arrested.

We conclude that there is merit in defendant’s assignment of error No. 1, in which she contends that the trial court erred in denying defendant’s motion for a directed verdict of acquittal at the close of the state’s evidence. Inasmuch as we are here concerned only with the specific charge that defendant solicited the officers and in light of the fact that the evidence proved just the reverse we conclude that whatever legal or other wrong defendant may have committed she was not shown to have been guilty of violating R.S. 14:82(b):

“Prostitution is:
(b) The solicitation by one person of another with the intent to engage in indiscriminate sexual intercourse with the latter for compensation.” R.S. 14:82 (emphasis provided)

The officers contacted defendant (it was not the reverse) at her residence (not on the street or at a bar, hotel or other public or quasi-public place) insisted on and succeeded in arranging a “date” with defendant. They went to defendant’s apartment (posing as clients) and were admitted. A price was agreed upon, money exchanged hands, and then one of the officers accompanied defendant into a bedroom where they undressed and got into bed.

A few quotations on the definition of the word “solicit” suffices to show that it was the officers who were engaged in solicitation rather than defendant:

Webster’s International Dictionary (3rd Edition, unabridged, 1971):

“6(c) to accost (a man) for immoral purposes and usually in the character of a prostitute.”

American Heritage Dictionary (New College Edition 1976):

“3. to entice or incite (a person) to action particularly to an immoral or illegal action. 4. to approach or accost (a person) with an offer of sexual services.”

Random House Dictionary of the English Language (Unabridged ed. 1967):

“4. To accost or lure (someone) with immoral intention as by or on behalf of a prostitute.”

See also, Williams v. United States, 342 A.2d 367 (D.C.App.1975), State v. Walker, 247 N.W.2d 1 (Iowa 1976)

The state argues that although the police officers initiated the encounter and may have solicited defendant at the outset, nonetheless defendant’s ultimately quoting a price constituted an offer or solicitation and that their payment of the price was an acceptance. We do not agree. The initiative for the sexual encounter for compensation came from the officers. It was after the officers called defendant three times on the telephone and talked with her at her residence that she agreed to engage in sex for money. Perhaps under different facts there might be a police initiated encounter which is interrupted by a period in which a policeman drops his insistence that a solici-tee accept money for engaging in sexual intercourse, that a later counter offer may sufficiently isolate the prostitute’s conduct as a solicitation. Those facts are not present here. In this case the officers solicited defendant and after some hesitation she acceded and her price was agreed upon. The state did not present any evidence that defendant solicited the police officers.

Decree

For the foregoing reasons the conviction and sentence of defendant April Trump is reversed and set aside and defendant ordered discharged.

REVERSED.

WATSON, J., dissents and assigns reasons.

WATSON, Justice,

dissenting:

Even though the police initiated the telephone contact with defendant, she was guilty of solicitation when, after first telling the officer that she worked only by referral, she later stated that she was “handling Misty’s action” and that if he came over in person maybe .they could do business. Therefore, I respectfully dissent and would affirm the conviction and sentence.

       Chief Judge PAUL B. LANDRY, Jr., retired, participated in this decision as an Associate Justice Ad Hoc.


author:
      CALOGERO, Justice.
     WATSON, Justice,

text:
    STATE of Louisiana v. Wanda JACKSON.
    No. 65530.
    Supreme Court of Louisiana.
    March 3, 1980.
    William G. Nader, Love, Rigby, Love & ’ McDaniel, Shreveport, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Charles W. Kelly, IV, Asst. Dist. Atty., for plaintiff-respondent.
   CALOGERO, Justice.

This defendant Wanda Jackson’s writ application and that of defendant in State of Louisiana v. Trump, 381 So.2d 452 (La.1980) were granted simultaneously because the principal issue is quite similar. Has the state proven that defendant violated R.S. 14:82(b) “the solicitation by one person of another with the intent to engage in indiscriminate sexual intercourse with the latter for compensation?” Jackson was found guilty and sentenced to four months in parish jail.

For reasons expressed in Trump, we reverse defendant Jackson’s conviction.

In this case the police enlisted the aid of an informant, one Melvin Jones, in their investigation of a complaint regarding prostitution. The officers hid a microphone on Melvin Jones, gave him $40.00 in marked bills and told him to tell defendant that one Billy Parker who was employed by Industrial Towel Company had recommended her. Jones, who was driven to defendant’s address at 6IOV2 Stoner Avenue by the officers, at approximately 10:20 p. m., knocked on the door and identified himself as “Robert Wilson.” He further stated that he was “looking for some action.” When defendant responded that she “didn’t know nothing about that”, Jones turned and began to walk away. Defendant then called him back and she told him that she was already in some trouble with the police. He entered her apartment and he asked her how much it would cost him. She replied that it would cost him twenty dollars. He gave her twenty dollars in marked bills. Some of the officers who could hear this conversation on the microphone that Jones was wearing then knocked on the door. Defendant took the money and flushed it down the toilet. Thereafter, she was arrested and charged with prostitution.

The only difference between this case and State v. Trump is that here after the defendant expressed a negative attitude, the agent turned away momentarily before he was called back and admitted. There is no essential difference between the two cases. Defendant never changed from solicitee to solicitor. There simply was no break in the agent’s solicitation sufficient to isolate defendant’s conduct as a later independent counter solicitation. The agent’s solicitation was continuous while he was there on the premises of defendant’s residence and the state did not present evidence that defendant had solicited the police agent.

Decree

For the foregoing reasons the conviction and sentence of defendant Wanda Jackson is reversed and set aside and defendant ordered discharged.

REVERSED.

WATSON, J., dissents and assigns reasons.

WATSON, Justice,

dissenting:

Although the informant initiated the contact in this case, the defendant, who originally expressed a negative attitude, was guilty of solicitation when she called him back and named her price after he turned away. I would affirm the conviction and sentence.

       Chief Judge PAUL B. LANDRY, Jr., retired, participated in this decision as an Associate Justice Ad Hoc.


author: WATSON, Justice.

text:
    STATE of Louisiana v. David Paul DELORE.
    No. 65503.
    Supreme Court of Louisiana.
    March 3, 1980.

      Prentiss Cox, Glynn Voisin, Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., William G. Yates, Asst. Dist. Atty., for plaintiff-appellee.
   WATSON, Justice.

Defendant, David Paul Delore, was convicted of the first degree murder of Michael Craig Davis in violation of LSA-R.S. 14:30 and sentenced to life imprisonment without benefit of probation, parole or suspension of sentence, as recommended by the jury. On appeal to this court, defendant argues eight assignments of error.

FACTS

Mike Davis was murdered in Houma, Louisiana, on March 16, 1977. His body was discovered the following day with knife wounds in the back. There was no identification on the body other than a package of matches from the “Lion’s Share” bar. During investigation at the Lion’s Share, John “Frenchy” Garand, an employee, was summoned to the bar and told detectives Bu-quet and Authement that Davis had been in the Lion’s Share the evening before with defendant Delore. Delore had been staying at Garand’s apartment for two nights at the invitation of Garand’s roommate, John Martinez. The detectives and Garand went to the apartment around 1:00 P.M. on the 17th, and Delore was asked to come to the sheriff’s office. Delore was not told the reason for the request and was not placed under arrest. Investigation showed no pri- or criminal record. Chief of Detectives Aubrey Authement testified that he advised Delore of his Miranda rights immediately after arrival at the sheriff’s office. While Delore was at the sheriff’s office, Garand gave written permission for a search of his apartment. A bloody shirt, a bloody pair of blue jeans, and a pair of boots with blood on them were found. In a garbage can at the rear of the apartment there was a face cloth; which was also seized. The items were placed in a paper bag and taken to the sheriff’s office. Delore had been in an interrogation room, but not under restraint, from approximately 1:30 P.M. until the searching group arrived with the clothing around 4:20 P.M. Defendant Delore identified the pants and shirt as being his, but said the boots belonged to “John”. At that time, Chief of Detectives Aubrey Authement testified that he again advised Delore of his Miranda rights and arrested him at approximately 4:27 P.M. During the course of the afternoon, Major Authement, Captain Godfrey Buquet, six other officers and Sheriff Charlton P. Rozands were present from time to time.

After identifying the clothing, defendant confessed orally to the murder and signed a waiver of rights and a confession typed by Captain Buquet.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant Delore contends that the trial court erred in denying his motion to quash the indictment. Defendant argues, in essence, that there are no standards to govern whether an indictment shall be for first or second degree murder, and the choice is therefore made in an unconstitutionally arbitrary manner.

State v. Payton, 361 So.2d 866 (La.1978) held that the definitions of first and second degree murder cannot provide for the presence or absence of heinous circumstances as essential elements of the offenses. Such circumstances can constitutionally be considered only in sentencing. Since the legislature attempted in LSA-R.S. 14:30.1(B) to define first degree murder as a murder committed in a particularly cruel manner, that section of the statute was held to be invalid but severable from the remainder.

Defendant Delore was charged with a crime committed on March 16, 1977. This was prior to the effective date of Act 121 of 1977 [September 9, 1977], which amended the second degree murder statute, LSA-R.S. 14:30.1, to add the reprobated definition in section B. Since defendant’s crime antedated the statutory amendment considered in Payton, that decision has no bearing on his indictment.

At the time of Delore’s offense, there was a clear delineation between the definition of first degree murder, which required a specific intent to kill or inflict great bodily harm, and that of second degree murder, or felony-murder, which did not require specific intent.

This assignment of error has no merit.

ASSIGNMENT OF' ERROR NUMBER TWO

Counsel contends that the trial court erred in not suppressing defendant’s oral inculpatory statements and written confession, arguing that Delore’s consumption of drugs and alcohol rendered him incompetent to waive his privilege against self-incrimination.

Major Authement and Captain Buquet witnessed the confession. To them, Delore appeared normal and rational. The confession refers to a three year habit of taking hard drugs. Delore, at trial, acknowledged his signature on the confession, but said he did not know what he was signing. He claimed to be “loaded” (Tr. 556) and feeling “Mellow” (Tr. 220) from injections of sodium phenobarbital at the time. ■

Sheriff Charlton P. Rozands testified that his short observation of Delore, lasting from five to fifteen minutes, indicated defendant was high or drunk or under some kind of influence. However, he saw defendant only briefly and stated that the investigating officers were in a better position to evaluate his condition.

Detective John Lowe said that Delore appeared normal but perhaps “a little bit apprehensive” (Tr. 309). According to detective Mike Elstner, Delore appeared in control of his mental facilities. Detective Lieutenant Daniel Derouche also testified that there was nothing unusual about De-lore’s appearance. However, to detective Tyrone Turner, the defendant appeared “very nervous” (Tr. 329). John Garand’s testimony was that Delore appeared calm and cool, although he did stutter or stammer occasionally and was sweating heavily.

Delore testified that needles, a bottle of sodium phenobarbital and other evidence of alcohol and drug use should have been in Garand’s apartment, but nothing of this kind was found by the searching officers. Garand denied the presence of anything of the sort on the premises.

Delore signed a waiver of his right to counsel and his privilege against self-incrimination before confessing. The trial court weighed Delore’s testimony and that of the other witnesses and decided that Delore was competent when he confessed. There is no allegation that he was threatened or intimidated. Even granting that Delore was “loaded” when he went to the sheriff’s office, a degree of sobriety should have ensued during the interval before he confessed. See State v. Adams, 347 So.2d 195 (La., 1977). The testimony as a whole establishes that the State carried its burden of proving that Delore was capable of giving a free and voluntary confession. Compare State v. Coleman, 369 So.2d 1286 (La., 1979).

There is no merit to this assignment of error.

ASSIGNMENTS OP ERROR NUMBER THREE AND FOUR

Defendant contends that the last member of the jury was selected in an illegal manner which warranted a mistrial.

After twelve jurors had been selected, court adjourned for the day. A panel of potential alternate jurors was summoned for the next day. During the overnight recess, one of the jurors, Mrs. Della Perkins, became ill and was taken to her personal physician, Dr. Edgar Landry, for treatment. Dr. Landry testified that she was incapable of serving, and she was excused. Counsel for defendant contends that his motion for mistrial should have been granted at that point.

A juror who is disabled by illness is “incompetent to serve”. LSA-C.Cr.P. art. 796; State v. Rounsavall, 337 So.2d 190 (La., 1976). When a juror becomes incompetent during the course of trial and no alternate is available, a mistrial may legally be ordered because “It is physically impossible to proceed . . . .” LSA-C.Cr.P. art. 775; State v. Bennett, 341 So.2d 847 (La., 1977).

The trial court concluded that it was possible to proceed with this trial “in the ordinary course”, LSA-C.Cr.P. art. 796, because selection of the jury was not complete. The court had directed that a panel of alternate jurors be summoned before Mrs. Perkins became ill. LSA-C.Cr.P. art. 789.

Defendant relies on State v. Carmouche, 141 La. 325, 75 So. 68 (1917) and State v. Hataway, 144 La. 138, 80 So. 227 (1918). In Carmouche and Hataway, jury selection had been completed, and the indictment had been read. LSA-C.Cr.P. art. 765. Those trials had gone another step in the normal order.

Absent mandatory grounds for a mistrial, it is the function of the trier of fact to determine whether a trial should continue. Any error in that decision is reversible only when denial of a mistrial results in substantial prejudice to the defendant. State v. Sepulvado, 359 So.2d 137 (La., 1978); State v. Overton, 337 So.2d 1058 (La., 1976).

Counsel for defendant contends that his defense strategy was hampered by the trial court’s ruling because his twelve peremptory challenges had been exhausted. The court minutes reflect that there was one remaining challenge. The trial court granted the defense two additional peremptory challenges to be used for selection of the twelfth juror and two to be used in selection of the two alternates. The defense used three peremptory challenges in the process of selecting the twelfth juror and the two alternates. The defendant’s rights were fully prqtected. No prejudice is discernable.

These assignments of error lack merit.

ASSIGNMENT OF ERROR NUMBER FIVE

Defendant contends that the trial court should have granted its motion for a new trial because of a personal friendship between juror Helen Chatelain and state witness Aubrey Authement. It is admitted that Mrs. Chatelain did not make any false statements on voir dire, but it is alleged that she misled the defense by failing to reveal her friendship with Major Authement. The evidence does not establish a close relationship between the two. At the hearing on the motion for a new trial, Mrs. Chatelain testified that if she had known him “real personally” (Tr. 115), she would have said so on voir dire. The testimony was that the two had met only a few times at the home of mutual friends. The acquaintance between the witness and the juror was not a valid ground for mistrial. State v. Calloway, 343 So.2d 694 (La., 1977).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER SIX

Defendant claims that the trial court should have granted a new trial because of a prejudicial communication to members of the jury by a bailiff on the second day of trial. The only evidence supporting this allegation is the testimony of Della Perkins, the excused juror. She stated that she heard a second-hand comment among the group selected and sequestered for jury duty to the effect that defendant had confessed because he had been put under pressure. Ms. Perkins was vague about the origin of the remark, but indicated that it must have been brought into the jury room by an outsider. Her testimony does not establish that the remark was made by the bailiff. LSA-C.Cr.P. art. 851 states that:

“The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegation it is grounded.”

The uncorroborated testimony of Ms. Perkins does not establish any injustice or prejudice to the defendant.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER SEVEN

Defendant contends that a new trial was mandated because of a communication by Ms. Perkins to her roommate, Aleta Bo-gen, regarding the confession. Ms. Perkins denied a conversation with Ms. Bogen about the confession. Ms. Bogen testified that Ms. Perkins returned from her visit to Dr. Landry and told Ms. Bogen that the defendant’s confession would be put into evidence. The information was said to come from a former secretary of defense attorney Cox. Ms. Perkins admitted working with an ex-employee of Mr. Cox, Diane Babalaenti, but denied receiving any information from her about a confession. Ms. Bogen said she had the impression from what Ms. Perkins said that the defense would try to “con” (Tr. 83) the jury into the false belief that the confession was coerced.

Ms. Bogen’s testimony is sincere and convincing to the effect that she was uncomfortable about the knowledge; disregarded the confession in her deliberation; and, gave defendant the benefit of her discomfort about the prior communication. Her testimony was confirmed by Ms. Chatelain, who said that Ms. Bogen refused to consider the confession and maintained that defendant was not guilty until convinced to the contrary by other evidence. A second jur- or, Ms. Elda Hurley, replaced Ms. Perkins as Ms. Bogen’s roommate. Her knowledge of the matter occurred after the confession was introduced into evidence. At that time, Ms. Bogen told her she had had previous information about the confession. When asked if it would affect her decision, she said she was going to try and ignore it.

State v. Wisham, 371 So.2d 1151 (La., 1979) involved a situation where two jurors who actually served saw defendant’s alibi witness arrested for perjury. The spectacle involved an overt act by third persons which was discussed by the jury as a whole. LSA-R.S. 15:470 was held not to prohibit juror testimony about outside influences and communications. Here, only Ms. Perkins may have received such a communication, and she did not serve on the jury. The only other person who could have been influenced by the information was Ms. Bogen. The testimony of Ms. Bogen, Ms. Hurley and Ms. Chatelain outweighs the presumption of prejudice. While these three could not testify to impeach their verdict, they were competent witnesses to rebut an attack on the jury’s conduct. LSA-R.S. 15:470.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER EIGHT

This assignment of error relates to a communication by bailiff Roy Crochet to the jury after the verdict, but before sentencing. Crochet was quoted as telling the jury that they had picked the wrong man because the clothes which were introduced into evidence would not have fit him at the time he was arrested. The twelve jurors stayed up most of that night discussing the matter, and Ms. Bogen then told the other jurors about her prior knowledge of the confession. The trial court concluded that the presumption of prejudice from Crochet’s remark was overcome by the testimony of the jurors about its content. Delore had already been found guilty. The trial court thought that the statement “may have saved defendant’s life”. (Tr. 165) Since the only other option of the jury at that point was a death penalty, the remark must have helped rather than hurt. There was no prejudice. Compare State v. Marchand, 362 So.2d 1090 (La., 1978) which dealt with a prejudicial communication from the bailiff to the jury prior to verdict.

This assignment of error is without merit.

For the foregoing reasons, the verdict and sentence are affirmed.

AFFIRMED.

       Chief Judge Paul B. Landry, Jr., participated i: place of Summers, C. J. this decision as Associate Justice ad hoc, in

      . LSA-C.Cr.P. art. 775:
      “A mistrial may be ordered, and in a jury case the jury dismissed, when:
      “(1) The defendant consents thereto;
      “(2) The jury is unable to agree upon a verdict;
      “(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
      “(4) The court finds that the. defendant does not have the mental capacity to proceed;
      “(5) It is physically impossible to proceed with the trial in conformity with law; or
      “(6) False statements of a juror on voir dire prevent a fair trial.
      “Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.
      “A mistrial shall be ordered, and in a jury case the jury dismissed, when the state and the defendant jointly move for a mistrial.”

      . LSA-C.Cr.P. art. 796:
      “If it is discovered after a juror has been accepted and sworn, that he is incompetent to serve, the court may, at any time before the first witness is sworn, order the juror removed and the panel completed in the ordinary course.”

      . LSA-C.Cr.P. art. 789:
      “The court may direct that one or two jurors in addition to the regular panel be called and impaneled to sit as alternate jurors. Alternate jurors, in the order in which they are called, shall replace jurors who become unable to perform or disqualified from performing their duties prior to the time the jury retires to consider its verdict. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges for cause, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the principal jurors. The regular peremptory challenges allowed by law'shall not be used against the alternate jurors. The court shall determine how many additional peremptory challenges shall be allowed, and each defendant shall have an equal number of such challenges. The state shall have as many peremptory challenges as the defense. The additional peremptory challenges may be used only against alternate jurors. An alternate juror who does not replace a principal juror shall be discharged when the jury retires to consider its verdict.”

      . LSA-C.Cr.P. art. 765:
      “The normal order of trial shall be as follows:
      “(1) The selection and swearing of the jury;
      “(2) The reading of the indictment;
      “(3) The reading of the defendant’s plea on arraignment;
      “(4) The opening statements of the state and of the defendant;
      “(5) The presentation of the evidence of the state, and of the defendant, and of the state in rebuttal. The court in its discretion may permit the introduction of additional evidence pri- or to argument;
      “(6) The argument of the state, the defendant, and the state in rebuttal;
      “(7) The court’s charge;
      “(8) The announcement of the verdict or mistrial in jury cases, or of the judgment in nonju-ry cases; and
      “(9) The discharge of the jury in jury cases. “When there is more than one defendant, the court shall determine the order of trial as between them.
      “A defendant may waive his opening statement.”

      . LSA-R.S. 15:470:
      “No juror, grand or petit, is competent to testify to his own or his fellows’ misconduct, or to give evidence to explain, qualify or impeach .any indictment or any verdict found by the body of which he is or was a member; but every juror, grand or petit, is a competent witness to rebut any attack upon the regularity of the conduct or of the findings of the body of which he is or was a member.”