author:
CALOGERO, Justice.

      DENNIS, Justice,

text:
    STATE of Louisiana v. Michael James AUSTIN.
    No. 80-KA-2403.
    Supreme Court of Louisiana.
    May 18, 1981.
    Dissenting Opinion June 17, 1981.
    Rehearing Denied June 22, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., Paul D. White, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Charles J. Yeager of Kennedy & Yeager, H. Dillon Murchison, Alexandria, for defendant-appellant.
   CALOGERO, Justice.

The Rapides Parish Grand Jury indicted defendant Michael James Austin for aggravated rape in violation of R.S. 14:42. Following trial, the twelve member jury returned a unanimous verdict of guilty of forcible rape. The trial judge sentenced defendant to twenty-five years at hard labor, two years to be without benefit of probation or parole. On appeal to this Court defendant argues that the verdict is contrary to the law and evidence because the state’s case was based entirely on circumstantial evidence which did not exclude every reasonable hypothesis of innocence as required by R.S. 15:438.

The chief evidence linking defendant to the rape is a shoe print left on a magazine when the offender climbed through the window of the victim’s trailer. The victim testified that it was dark and she did not see her attacker, even enough to identify his race. The police investigating the crime were unable to lift any latent fingerprints at the crime scene. In addition to the shoe print on the magazine, there was a shoe print left in the soil under the window of the trailer. Police made a plaster cast of this print, but positive identification of the shoe which made the print could not be established.

The state’s case rested primarily upon evidence given by F.B.I. agent Gary Kana-skie. The defense stipulated that Agent Kanaskie is an expert in the area of shoe print and tire tread impression identification. Agent Kanaskie testified that he compared the shoe print on the magazine with a tennis shoe supplied him by the Alexandria police and that he concluded that the tennis shoe made the print. The witness said that he was 100% certain that the print was made by that shoe to the exclusion of all the other shoes in existence in the world. He explained how the comparison was made on the basis of the wear sustained by the shoe. Using photographic enlargements of the print on the magazine and a print made by the tennis shoe, Agent Kanaskie pointed out that besides the size and design being the same the wear pattern on the horizontal cross ribs was the same on both. The agent marked with red arrows the points of correspondence between the two. He explained that the sole of a shoe develops a unique pattern as the result of general wear, being cut by sharp objects such as rocks and nails, and by foreign objects adhering to the sole.

To tie the shoe submitted to Agent Kana-skie with the defendant, the state offered the testimony of Investigator Herman Walters of the Alexandria police. Walters told of going to the home of defendant’s grandmother, with whom defendant lived. According to Walters, defendant’s mother was present at the time and took the pair of tennis shoes from under the bed in the rear room which was defendant’s bedroom. Defendant’s mother who was called by the state, corroborated that the shoes were under defendant’s bed, but said that the policeman removed them from that location and gave her a receipt for them. She also conceded that defendant owned a pair of tennis shoes like the ones under his bed.

Although defendant did not take the stand in his own behalf, his sister testified that defendant and the son of another sister were approximately the same size and had worn the same clothing from time to time. It is this testimony on which defendant relies to argue that the circumstantial evidence presented by the state does not exclude every reasonable hypothesis of innocence. Defendant further stresses that Agent Kanaskie stated that his evidence could not establish what person was wearing the shoe at the time the print was made at the scene of the crime.

It is true that the state offered no evidence to rebut the testimony of defendant’s sister. However, her testimony must be examined in its entirety to determine whether it establishes a reasonable hypothesis of innocence. Significantly, we note the testimony of this witness that defendant and his nephew were not members of the same household at the time of the crime. Additionally, this sister stated that defendant had lived with the other sister at the time of his graduation from high school which was several months before the instant offense. It was while defendant was living with his sister, i. e., months before and not around the time of the crime, that the two young men wore some of the same clothing, according to the testimony of this witness. Her testimony further establishes that the clothing being shared belonged to defendant alone and that there were heated arguments when the nephew borrowed the clothing without defendant’s permission.

Defendant argues that because the magazine bearing the shoe print is dated June 1979 and the rape occurred on August 26, 1979, the print could have been left on the magazine at any time between June and August 26. This argument ignores the testimony of the victim that there was no shoe print on the magazine prior to the night of the rape. The magazine, a consumer newsletter, was on top of a small table beside the chair where the victim sat to watch television and she testified that she frequently read it while watching TV because it had many items of interest in it.

It is the defense position that R.S. 15:438 and Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), require a reversal of the conviction. Under the Jackson standard, the appropriate question is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. State v. Guillot, 389 So.2d 68 (La.1980). This Court has not yet enunciated a Jackson standard of review when the state’s case is founded entirely upon circumstantial evidence although it has addressed the situation in general terms. See e. g. State v. Gould, 395 So.2d 647 (La.1981).

Regarding circumstantial evidence, R.S. 15:438 sets forth the rule that, in order to convict, the evidence must exclude every reasonable hypothesis of innocence. Under Jackson, the evidence is viewed in the light most favorable to the prosecution and from the viewpoint of a rational trier of fact. Therefore, when we 'review a conviction based upon circumstantial evidence we must determine that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded.

While direct evidence consists of testimony from a witness who actually saw or heard an occurrence proof of the existence of which is at issue, such evidence is not always available. Frequently, the state must rely on circumstantial evidence to prove the existence of the fact to be proved. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. In this case, the fact in dispute is who committed the rape. Pertinent to that inquiry is who was wearing the tennis shoe at the time the footprint was made on the magazine as the attacker entered the trailer. The state offered the testimony of the police officer who found the shoe under defendant’s bed, the testimony of defendant’s mother who identified the shoe as the one removed from under her son’s bed and said that defendant owned shoes like it, and the testimony of the F.B.I. agent who testified that the tennis shoe removed from under defendant’s bed made the shoe print on the magazine.

The defense did not offer direct testimony to refute the evidence of the state. Rather, defendant’s sister testified that at one time the son of another sister used to borrow defendant’s clothing. She did not testify that on the night of the crime this nephew was wearing the fateful sneaker.

From the evidence presented by both the state and defense the jury was asked to infer the existence or nonexistence of the fact at issue: Was defendant wearing the tennis shoe which made the shoe print found at the crime scene? The inference that defendant was wearing the shoe must be a reasonable one. Further, to convict defendant, that inference made by the jury must exclude every reasonable hypothesis of innocence. It need not, however, exclude every other possible theory. For example, it is possible that someone had stolen the tennis shoes to wear while committing the rape and then placed the shoes under defendant’s bed where they were found by the police. While this is a possible explanation, it is not a reasonable one for the set of circumstances and facts presented to the jury. The possibility that two people, one of them the defendant, entered the trailer on the night of the crime and that the other person perpetrated the rape is equally unlikely considering the evidence presented in the case. The only hypothesis of innocence which might be supported by the evidence is that the nephew, wearing defendant’s tennis shoes, committed the rape. The jury rejected that hypothesis as not being a reasonable one.

Viewing evidence presented at trial in the light most favorable to the prosecution, we note the following. The tennis shoe was found under defendant’s bed and defendant’s mother testified that he owned tennis shoes like it. Defendant stipulated to the expertise of the witness who testified that defendant’s tennis shoe, to the exclusion of all other shoes in the world, made the print on the magazine at the crime scene. The victim testified that there was no print on the magazine prior to the rape.

Defendant relies to provide a reasonable hypothesis of innocence upon the testimony of his sister that he and the son of another sister were about the same size and that at times the nephew wore defendant’s clothing. Her testimony is not of significant help when we consider the totality of her testimony. She only testified that at some time in the past the nephew upon some occasions wore defendant’s clothing. Specifically she placed this time as well before the crime, not contemporaneous with it. Defendant lived with the nephew and the nephew’s mother (another of defendant’s sisters) at the time he graduated from high school in May 1979 and the rape occurred on August 26, 1979, at least two months after graduation. At the time of the rape defendant was living with his grandmother and the nephew was not a member of that household. Furthermore, the witness testified that the clothing belonged to defendant and that defendant and the nephew “often fought about it” when the nephew borrowed clothes without defendant’s permission.

In reaching a verdict, the jury may consider the evidence and the lack of evidence presented at trial. C.Cr.P. art. 804. Defendant’s sister testified that defendant and the nephew were not members of the same household at the time of rape. The sister who testified for the defense was not the sister whose son is the nephew alleged to have worn defendant’s clothing sometimes. The witness did not testify that the nephew ever wore this pair of shoes and she did not testify that the nephew continued to borrow defendant’s clothing after they ceased to be members of the same household. The nephew who defendant suggests may have been wearing the shoes the night of the rape did not testify although his aunt stated that at the time of the trial he lived with defendant’s grandmother.

Finally in deciding who could reasonably be considered to have been wearing the shoes the night of the rape, the jury heard testimony that the rape occurred between 11 p. m. on the night of August 25, 1979, and 1 a. m. on the morning of August 26, 1979. The exact time that the police recovered the shoes from under defendant’s bed is not in the trial testimony. However, Investigator Walters testified that he went to defendant’s house on August 28, 1979, and found the shoes at that time. Therefore, the shoes were under defendant’s bed two days after the crime.

Faced with the facts and circumstances in evidence from which to draw an inference according to reason and common experience, the jury concluded that these facts and circumstances did not offer a reasonable hypothesis of innocence. After reviewing the evidence presented at trial, in the light most favorable to the prosecution, we conclude that' a rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded.

Decree

For the foregoing reasons, we affirm defendant’s conviction and sentence.

AFFIRMED.

DENNIS, J., dissents with written reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent. The state failed to present evidence sufficient to support a conviction under the standard of review required by Jackson v. Virginia.

Initially, I believe the majority has incorrectly invoked the presumption provided in La.R.S. 15:432 in order to buttress its conclusion that the Jackson requirements have been met. “The presumption of La.R.S. 15:432 does not arise if the witness is equally available to both the state and the defense, as in the instant case, for then the evidence is not ‘under the control of’ either party.” State v. Simms, 381 So.2d 472, 476 (La.1980). It is not clear from the record that the nephew which the defendant failed to call as a witness was unavailable to the state. Even if he was, it is still inappropriate to characterize the nephew as a witness “under the control” of the defendant. The defendant could hardly expect his nephew to take the stand and admit he wore the shoe that made the print found in the victim’s living room.

Omitting the inferences the majority would draw from defendant’s failure to call the nephew, I cannot agree that any rational trier of fact could find guilt beyond a reasonable doubt. The state’s case against the defendant rested entirely on the circumstance that a shoe print matching that of defendant’s tennis shoe was found in the victim’s house. Without any other evidence whatsoever to link defendant to this crime, a reasonable doubt must remain as to whether it was the defendant who made the print. Or, in the majority’s language, this circumstantial evidence does not exclude the reasonable hypothesis that someone besides the defendant was wearing the shoe that left the print. It is important to realize that we are not dealing with evidence in the form of a fingerprint, or palmprint, or bare footprint. We are faced with a quite detachable and portable item of clothing. The owner of a shoe cannot make a shoe print unless his foot is in the shoe. It is this crucial link in the chain of proof which is wholly without support in the evidence.

A survey of other states which have faced the issue of the sufficiency of a shoe print as circumstantial evidence to support a conviction fails to reveal a case which has relied on a shoe print alone to uphold the jury verdict. In other cases I have found there was at least some additional element of direct or circumstantial evidence which linked the defendant to the crime. See Cato v. State, 396 N.E.2d 119 (Ind.1979); State v. Burclaff, 137 Vt. 354, 404 A.2d 512 (1979), overruled on other grounds, [State v. Larose] 415 A.2d 210; Maddox v. State, 149 Ga.App. 110, 253 S.E.2d 456 (1979); Commonwealth v. Mangini, 478 Pa. 147, 386 A.2d 482 (1978); Walker v. State, 262 Ark. 331, 556 S.W.2d 655 (1977); Currington v. State, 342 So.2d 390 (Ala.App.1976), cert. denied, 342 So.2d 393 (Ala.1977); State v. Krajewski, 303 Minn. 37, 226 N.W.2d 293 (1975); State v. Black, 163 Mont. 302, 516 P.2d 1163 (1973); Palmer v. State, 10 Md. App. 152, 268 A.2d 582 (1970); State v. Hardinson, 81 N.M. 430, 467 P.2d 1002 (1970); Flowers v. State, 415 S.W.2d 178 (Tex.Crim.1967); State v. McGlathery, 412 S.W.2d 445 (Mo.1967); Smith v. Commonwealth, 375 S.W.2d 819 (Ky.App.1964); People v. Wynkoop, 165 Cal.App.2d 540, 331 P.2d 1040 (1958); Annotation: Footprints as Evidence, 35 A.L.R.2d 856. In Castello v. State, 373 S.W.2d 754 (Tex.Crim.1964), the evidence supported defendant’s conviction of raping a 73 year old blind woman where a plaster cast of footprints in sand leading from the victim’s residence to defendant’s motel room matched the accused’s tennis shoes, and the accused had made a voluntary statement admitting breaking the lock on the woman’s door, entering, and having intercourse with her.

Perhaps the case in which the prosecution’s case depended most heavily upon shoe print evidence was Palmer v. Maryland, supra. In that case, defendant was the former employee of a company which had been burglarized, and a print identified as having been made by defendant’s boot was found impressed on a payroll journal sheet found on the floor of a ransacked office. However, there was also evidence placing the defendant in the vicinity of the office, wearing the boot, around the time the crime took place. Also, it should be noted that the Maryland courts at that time reviewed convictions for sufficiency of the evidence under its then prevailing “some evidence” standard of review. I have been unable to discover any case, before or after Jackson v. Virginia, which has upheld a conviction based solely on the matching of a shoe print found at the scene of the crime with a shoe owned by defendant.

For the foregoing reasons, I conclude that the evidence in this case is insufficient to support the conviction under the standard of review set forth in Jackson v. Virginia. The majority’s holding, displaying its willingness to ignore the real possibility that the defendant was framed, or that the real culprit hid his own guilt by wearing another’s clothing, improperly places upon the accused the burden of proving his innocence.

       Judges Pike Hall, Jr., Charles A. Marvin, and Jasper E. Jones of the Court of Appeal, Second Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Pascal F. Calogero, James L. Dennis, Fred A. Blanche, Jr. and Harry T. Lemmon.

      . Underhill’s Criminal Evidence, § 15, Sixth Edition (1973). Wharton’s Criminal Evidence, § 6, 13th Edition (1972), says “ [circumstantial evidence assumes a witness who has no knowledge of the facts in dispute, but knows of other facts and circumstances which, when offered in evidence, may permit the fact finder to infer that the facts in dispute existed or did not exist.”

      . In this regard we note that under R.S. 15:432 it is presumed that “evidence under the control of a party and not produced by him was not produced because it would not have aided him.” We do not suggest that it is incumbent upon defendant to exculpate himself, but when defendant seeks to rebut the state’s case with evidence of his own which, he contends, suggests a reasonable hypothesis of innocence, it is reasonable for the jury to expect that he will offer as witnesses those individuals best situated to testify accordingly.


source: Caselaw Access Project

author: MARCUS, Justice. BLANCHE, Justice

license: Public Domain

text:
    Mary McCRAINE v. HONDO BOATS, INC. and Anchor Marine, Inc.
    No. 80-C-2577.
    Supreme Court of Louisiana.
    May 18, 1981.
    Rehearing Denied June 22, 1981.

      Charles R. Moore, of Moore & Walters, Charles A. O’Brien, III, of Franklin, Moore & Walsh, Baton Rouge, for plaintiff-applicant.
    Ralph Brewer, Baton Rouge, Vance R. Andrus, of Andrus & Preis, Lafayette, Stephen R. Wilson, of Keogh & Keogh, Lawrence R. Anderson, Jr., of Anderson, Anderson & Steffes, Baton Rouge, for defendant-respondent.
   MARCUS, Justice.

Mary McCraine instituted this action on August 2, 1979, to recover damages for personal injuries sustained while a passenger in a pleasure boat. The claim was asserted to be within the admiralty and maritime jurisdiction of the United States and filed in the state court pursuant to the “saving to suitors” clause of 28 U.S.C. § 1333. Named defendants were Hondo Boats, Inc., manufacturer of the boat, Anchor Marine, Inc., seller of the boat, and Robert S. Richardson, owner and operator of the boat on the day of the accident.

Plaintiff alleged in her petition that on May 21, 1978, she was a passenger in the boat traveling in the Amite River Diversion Canal, part of the intercoastal waterway and a navigable waterway of the United States. Plaintiff was seated facing the rear of the boat when it accelerated and struck the wake of another vessel causing plaintiff to be thrown to the deck and to slide against the exposed engine of the boat receiving serious burns. Plaintiff sought recovery against Hondo because its design of the boat made it unreasonably dangerous under normal use, Anchor Marine because it was negligent in selling a boat it knew or should have known was defective and dangerous in normal use, and Richardson because he was negligent in owning and maintaining a dangerous instrumentality.

Anchor Marine answered, generally denying the allegations of plaintiff’s petition and affirmatively asserting the negligence and/or assumption of risk of plaintiff as a bar to her recovery. It further asserted a third party demand against Hondo, and Richardson. Hondo filed exceptions of improper citation and service of process and lack of jurisdiction. Hondo also filed an exception of prescription, asserting that since the alleged accident resulting in personal injuries to plaintiff occurred on May 21, 1978 but suit was not filed until August 2, 1979, the action had prescribed by the one-year prescriptive period (La.Civ.Code art. 3536) under state law. It denied that the present action arose under admiralty and maritime laws of the United States; therefore, the limitation period for filing suit was not controlled by the doctrine of laches. The other defendants joined with Hondo in its exception of prescription. The trial court overruled Hondo’s exceptions of improper citation and service of process and lack of jurisdiction. However, finding that the cause of action was not properly within the admiralty and maritime jurisdiction, the trial court maintained the exception of prescription and dismissed plaintiff’s suit as to all defendants. The third party demand of Anchor Marine against Hondo was likewise dismissed. Plaintiff appealed. The court of appeal affirmed. On plaintiff’s application, we granted certiorari to review the correctness of that decision.

The sole issue presented for our determination is whether plaintiff’s claim constitutes a maritime tort under the admiralty jurisdiction. If so, under the doctrine of laches, suit may be brought within any reasonable period that does not prejudice the defendants’ ability to defend. If the claim is not within the admiralty jurisdiction, the Louisiana prescriptive period of one year controls and plaintiff’s suit would not be timely.

The United States constitution provides that the judicial power of the United States extends to “all Cases of admiralty and maritime Jurisdiction.” U.S.Const. Art. Ill, § 2. This constitutional grant of federal jurisdiction is codified in 28 U.S.C. § 1333 which provides in pertinent part:

The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. (Emphasis added.)

Hence, in the instant case, plaintiff had the option to bring suit either in federal court pursuant to its admiralty jurisdiction or, under the saving to suitors clause, in the appropriate non-maritime court, federal or state, by ordinary civil action. However, regardless of in which court the action is brought, the federal substantive admiralty or maritime law (including the doctrine of laches) applies if the claim is one cognizable in admiralty. Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953); Garrett v. Moore-McCormack Company, 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239 (1942).

For many years, the standard for determining whether a tort was “maritime” and thus within the admiralty jurisdiction was that established in The Plymouth, 70 U.S. (3 Wall.) 20, 18 L.Ed. 125 (1866), which only required that, in order for maritime law to govern an action, the wrong must have occurred on navigable waters. This “strict locality test” was repeatedly applied by the courts; however, by 1972, several lower federal courts had deviated from this test. The Sixth Circuit Court of Appeals required that, in addition to sustaining injury in a maritime location, the tort must have a “maritime connection.” Chapman v. City of Grosse Pointe Farms, 385 F.2d 962 (6th Cir. 1967). The Fifth Circuit Court of Appeals considered that the facts and circumstances of each claim must have a “substantial connection with maritime activities or interests” in order to invoke the admiralty jurisdiction. Peytavin v. Government Employees Insurance Company, 453 F.2d 1121 (5th Cir. 1972).

The United States Supreme Court again addressed the requirements for admiralty jurisdiction in tort cases in Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). In that case, plaintiff’s airplane lost power while taking off from defendant’s airport after ingesting seagulls into its engines and crashed and sank in Lake Erie, a navigable body of water. Plaintiff filed suit in federal court contending that there was admiralty jurisdiction under The Plymouth’s locality rule. The Court concluded that the mere fact that the wrong occurred or was located on or over navigable waters was not .of itself sufficient to turn an airplane negligence case into a maritime tort. Rather, the Court found it “far more consistent with the history and purpose of admiralty to require also that the wrong bear a significant relationship to traditional maritime activity.” Under the facts of Executive Jet, the Court found no such relationship and thus no admiralty jurisdiction over aviation tort claims arising from flights of land-based aircraft between points within the continental United States.

The federal circuit courts of appeal have differed in their interpretations of the effect of Executive Jet upon admiralty jurisdiction in tort cases. The principal problem area has been defining what constitutes “traditional maritime activity,” especially in cases involving pleasure boats. In St. Hi- laire Moye v. Henderson, 496 F.2d 973 (8th Cir.), cert. denied, 419 U.S. 884, 95 S.Ct. 151, 42 L.Ed.2d 125 (1974), the Eighth Circuit suggested that a close reading of the Executive Jet decision might support an interpretation limiting its holding to situations involving aircraft. Indeed, in only a slight divergence from the “locality test,” that court held that the operation of a boat on navigable waters, no matter what its size or activity, is a traditional maritime activity to which admiralty jurisdiction may extend. In Oppen v. Aetna Insurance Co., 485 F.2d 252 (9th Cir. 1973), the Ninth Circuit required that in addition to the locality test the wrong have “a significant relationship to traditional maritime activity.” The Fourth Circuit in Crosson v. Vance, 484 F.2d 840 (4th Cir. 1973), concluded in an action for personal injuries brought by a water skier-against the operator of a towing boat that it need not speculate whether the Supreme Court’s opinion in Executive Jet Aviation would foreclose resort to admiralty in any case involving the operation of small pleasure craft. The court stated that, in the case before it, it need only go so far as the Supreme Court’s explicit direction to hold that admiralty jurisdiction did not reach a claim for personal injury by a water skier against the allegedly negligent operator of the towboat. However, in a later case, the Fourth Circuit, in a consolidated action to recover damages for injuries sustained by passengers on small pleasure crafts operated on navigable waters, concluded that since the pleasure boats were vessels in navigation and the controversy arose out of their navigation, there was a “maritime connection” not present in Executive Jet Aviation. Therefore, the court concluded that the operation of the boats was within the admiralty jurisdiction and the new rule as stated in Executive Jet. Richards v. Blake Builders Supply Inc., 528 F.2d 745 (4th Cir. 1975). The Fifth Circuit, in Kelly v. Smith, 485 F.2d 520 (5th Cir. 1973), cert. denied, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974), considered that maritime locality alone was no longer sufficient to sustain maritime jurisdiction and that the wrong must bear a significant relationship to maritime activity. In that case, fleeing deer poachers aboard a 15-foot outboard motor boat were fired upon with hunting rifles by outraged defenders of a private hunting preserve ashore. Injuries were sustained by the persons aboard the boat. The issue was whether the tort claims of the plaintiffs, casualties aboard the boat, were within admiralty jurisdiction. The court concluded that, while the facts that plaintiffs’ injuries were consummated on navigable waters while in a boat weigh towards maritime jurisdiction, it must look to all the circumstances for a “substantial maritime relationship,” including the functions and roles of the parties, types of vehicles and instrumentalities involved, causation and the type of injury, and traditional concepts of the role of admiralty law. Applying this analysis to the facts of the case before it, the court concluded that the tort claims of the plaintiffs were within admiralty jurisdiction. In the recent case of Richardson v. Foremost Insurance Co., 641 F.2d 314 (5th Cir., 1981), involving a collision between two pleasure boats in the upper reaches of the Amite River, the Fifth Circuit followed the reasoning in Kelly v. Smith, supra, and concluded that admiralty jurisdiction had been invoked.

Despite the uncertainty of the law in this area, it appears to us that the trend in the lower federal courts since Executive Jet is to require more than that the injury occurred on navigable waters while in a boat. While these facts weigh toward maritime jurisdiction, the courts must look to all the circumstances for a substantial maritime relationship in order to invoke admiralty jurisdiction. In the instant case, we have done so and conclude that plaintiff’s tort claim is within the admiralty jurisdiction.

It is not disputed that plaintiff’s injuries were sustained as a result of an accident occurring in navigable waters while aboard a moving boat. In addition, plaintiff’s petition alleges that her injuries were caused by the negligence of the manufacturer in the design of the vessel and by the negligence of the distributor in selling and the owner in maintaining a vessel which was unreasonably dangerous in normal use. Certainly, the issue of whether a vessel was or was not properly designed and manufactured for safe use upon navigable waters has a substantial connection with traditional maritime activity. Even though the conduct complained of may have been negligence in construction or defective design which occurred ashore, the tort is still maritime in nature. As recognized by the Supreme Court in Executive Jet, the law of admiralty “has evolved over many centuries, designed and molded to handle problems of vessels relegated to ply the waterways of the world.” It cannot be argued that this special body of law is not particularly well-suited for determinations as to proper design and construction of vessels meant to operate on navigable waters. It is clear that the federal interest in protecting navigation and commerce on navigable waters extends to considerations of the safe design and construction of all vessels, including pleasure boats used only for recreational, and not commercial, purposes. The potential danger to navigation and commerce posed by improperly designed and manufactured vessels is apparent.

Accordingly, we conclude that plaintiff’s claim constitutes a maritime tort under the admiralty jurisdiction and the substantive law of admiralty, including the doctrine of laches, controls. Thus, the court of appeal erred in affirming the ruling of the trial court maintaining defendants’ exception of prescription.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and the case is remanded to the district court for further proceedings in accordance with the views expressed herein.

BLANCHE, J., dissents and assigns reasons.

BLANCHE, Justice

(dissenting).

I respectfully dissent. The court of appeal opinion notes the following:

(1) The small pleasure boat in which plaintiff was injured was travelling on navigable waters, but was neither for commerce nor for hire.

(2) Plaintiff was a passenger injured by an allegedly defectively designed engine without protective cover.

(3) There was no causation external to the vessel.

(4) There were no rules of the road or conditions of the canal involved.

(5) The accident was no more than a pleasure boat accident where no traditional maritime concern, such as commerce, navigation or navigational hazards, was involved.

Absent such traditional concerns, the court of appeal found that there was not a sufficient relationship to traditional maritime activities so as to make the claim one in admiralty.

On the other hand, the majority relies solely on the plaintiff’s allegation that the vessel was not properly designed and manufactured for safe use on navigable waters to justify its position that plaintiff’s claim is “in admiralty”.

This sounds like a products liability case arising out of allegedly negligent conduct that occurred long before the vessel involved here ever hit the water.

Being unable to find a so-called “maritime connection”, this writer respectfully dissents.

      . 392 So.2d 161 (La.App. 1st Cir. 1980).

      . 394 So.2d 1244 (La. 1981).

      . Czaplicki v. “S.S. Hoegh Silvercloud”, 351 U.S. 525, 76 S.Ct. 946, 100 L.Ed. 1387 (1956).

      . See generally Victory Carriers v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971) (footnote 2 of the opinion contains an exhaustive list of citations).

      . See Jig the Third Corporation v. Puritan Marine Insurance Underwriters Corp., 519 F.2d 171 (5th Cir. 1975), cert. denied, 424 U.S. 954, 96 S.Ct. 1429, 47 L.Ed.2d 360 (1976).


author: MARCUS, Justice.

text:
    Lois DORNAK v. LAFAYETTE GENERAL HOSPITAL, William Grun and Continental Insurance Co.
    No. 80-C-2884.
    Supreme Court of Louisiana.
    May 18, 1981.
    Rehearing Denied June 22, 1981.
    Edward J. Milligan, Jr., Lafayette, for plaintiff-applicant.

      Timothy J. McNamara, Marilyn C. Castle, Graham N. Smith, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, for defendant-respondent.
   MARCUS, Justice.

Mrs. Lois Dornak instituted this action for damages for personal injuries against Lafayette General Hospital, William Grun, its assistant administrator, and Continental Insurance Company, their general liability insurer. She alleged that defendants were negligent in failing to inform her that x-rays taken at her pre-employment physical examination disclosed a tubercular condition.

Defendants filed an exception of no cause of action asserting that they owed no legal duty to plaintiff under the circumstances to disclose her physical condition to her. Defendants also filed an exception of res judi-cata or judicial estoppel on the ground that a prior judgment in Dornak v. Lafayette General Hospital, 368 So.2d 1185 (La.App.3d Cir. 1979), barred the present action. The trial court overruled the exception of judicial estoppel but sustained the exception of no cause of action and dismissed plaintiff’s suit with prejudice. The Court of Appeal, Third Circuit, affirmed, agreeing with the trial court that plaintiff’s petition failed to state a cause of action; however, it did not reach the issues raised by defendants’ exception of res judicata or judicial estoppel. On plaintiff’s application, we granted cer-tiorari to review the correctness of that judgment.

Plaintiff alleges in her petition that on or about August 8, 1974, she sought employment as a nurses’ aide with Lafayette General Hospital. As part of its pre-employment procedure, she was required to take a physical examination by a hospital physician which included a chest x-ray. The x-ray revealed a tubercular condition and a request was forwarded to the hospital’s administrative department to have plaintiff return for further x-rays. Notwithstanding the facts that the x-ray revealed evidence of tuberculosis and a request had been made for further examination, the hospital failed to inform plaintiff of her condition or take any further action in regard to it. Plaintiff was subsequently employed as a nurses’ aide at the hospital. During her employment, she experienced a persistent cough, nasal drip and hoarseness in her voice which progressively worsened until she was admitted to Our Lady of Lourdes for tests on May 26, 1977. Her physician examined the August 8, 1974 x-ray report which had been placed in plaintiff’s personnel file and found that the chest x-ray revealed a tubercular condition. Plaintiff was then informed for the first time that she was suffering from tuberculosis. Plaintiff alleges that defendants were negligent in failing to inform her of her tubercular condition. She further alleges that had she been advised of the x-ray results and the request for further evaluation, she would have engaged medical treatment for the condition at that time; however, since she was never advised of the report and findings, her condition progressively worsened and she is now undergoing and will continue to undergo treatment for at least three years.

The courts below sustained defendants’ exception of no cause of action on a finding that they owed no duty to plaintiff to inform her of her condition in August 1974. The narrow issue for our determination, then, is whether an employer owes a duty to a prospective employee who is subsequently hired by the employer to inform him or her of a tubercular condition discovered during a required pre-employment physical examination. The issue is res novo to this court. If a duty is owed, then plaintiff’s petition states a cause of action.

The standard of conduct required of persons in Louisiana in their relationships with one another as a basis of delictual liability is set forth in La.Civ.Code arts. 2315 and 2316.

Article 2315 provides:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

Article 2316 provides:

Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.

Persons are liable for acts of commission and omission that cause damage to another under these articles if a duty imposed by the relationship of the parties is breached by such act or omission. We have stated in discussing whether a duty exists as a result of the relationship between the parties under the duty-risk analysis of tort liability that

[a]ll rules of conduct, irrespective of whether they are the product of a legislature or are a part of the fabric of the court-made law of negligence, exist for purposes. They are designated to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises.

Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972).

We recognize at the outset that an employer generally owes no duty to a prospective employee to ascertain whether he or she is physically fit for the job sought. Nonetheless, where a prospective employer assumes such an undertaking, many jurisdictions have found the employer liable for injuries to employees resulting therefrom if the employer performs it negligently. Jines v. General Electric Co., 303 F.2d 76 (9th Cir. 1962); Union Carbide & Carbon Corp. v. Stapleton, 237 F.2d 229 (6th Cir. 1956); Betesh v. United States, 400 F.Supp. 238 (D.D.C.1974); Isgett v. Seaboard Coast Line Railroad Co., 332 F.Supp. 1127 (D.S.C.1971); Coffee v. McDonnell-Douglas Corp., 8 Cal.3d 551, 105 Cal.Rptr. 358, 503 P.2d 1366 (1972); Wojcik v. Aluminum Co. of America, 18 Misc.2d 740, 183 N.Y.S.2d 351 (1959). See also Restatement (Second) of Torts, § 323 (1965) (obligation assumed by an employer is derived from the general principle that one who voluntarily undertakes to perform an action must do so with due care).

We conclude in the instant case that under the general principles of tort liability enunciated in La.Civ.Code arts. 2315 and 2316, defendants owed a duty to plaintiff to disclose the tubercular condition discovered during her pre-employment physical examination. The check x-ray revealing plaintiff’s condition was under the care and custody of the hospital and its assistant administrator (Grun). To notify plaintiff of the findings would have been a simple matter not requiring the professional skill of a physician and not imposing an undue burden upon an administrative or personnel official of the hospital. While we do not consider that .the hospital had any obligation to give plaintiff a pre-employment physical examination, once it undertook to do so and subsequently employed her, she was entitled to and did rely upon the expectation that she would be told of any dangerous condition actually disclosed by that examination, especially considering the fact that she was employed by the hospital to perform duties placing her in contact with co-employees and hospital patients.

In sum, we conclude that defendants owed a duty to plaintiff to protect her against the particular risk which allegedly caused injury to her. The duty owed was to inform plaintiff of her tubercular condition discovered during a pre-employment physical examination. Hence, accepting the facts alleged in the petition to be true, plaintiff has stated a cause of action under Louisiana law.

Defendants also urge this court to dismiss plaintiff’s petition on the grounds of judicial estoppel or res judicata in that the previous case brought by plaintiff’s husband, Dornak v. Lafayette General Hospital, supra, and the instant case are identical. At the outset, we note that the common law doctrine of judicial estoppel does not apply in Louisiana. Ugulano v. Allstate Insurance Company, 367 So.2d 6 (La.1978). Louisiana legislative authority for res judicata establishes a presumption of correctness and precludes re-litigation of the object of a judgment when there is (1) identity of the parties, (2) identity of “cause,” and (3) identity of the “thing demanded.” La.Civ.Code art. 2286; R. G. Claitor’s Realty v. Juban, 391 So.2d 394 (La.1980); Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978); Mitchell v. Bertolla, 340 So.2d 287 (La.1976). Res judicata does not bar litigation of the instant case because neither the “parties” nor the “thing demanded” are the same in the former action and the present litigation. Defendants urge that both lawsuits arose from the same mutual rights and obligations existing as a result of the community of acquets and gains between Mr. and Mrs. Dornak. Hence, the “quality” of the plaintiffs are the same in the two suits. We do not agree. La.Civ.Code art. 2402 provided that “damages resulting from personal injuries to the wife shall not form part of this community, but shall always be and remain the separate property of the wife and recoverable by her alone.” Therefore, Mr. Dornak could not and did not sue defendants for damages for personal injuries sustained by his wife. However, under La. Code Civ.P. art. 686, Mr. Dornak was the proper party to sue to enforce a right of the community (medical expenses) which he in fact did. While Mrs. Dornak was the proper party to sue to enforce the right to recover her loss of earnings rather than Mr. Dornak, defendants did not object to Mr. Dornak’s lawsuit on this ground and thus waived any complaint that they may have had. On the other hand, Mrs. Dornak was the proper party to bring suit to recover damages for her personal injuries and she is attempting to do so in the instant case. La.Civ.Code art. 2402. Since the law did not allow Mr. and Mrs. Dornak to demand the same relief, their “quality” cannot be considered the same. Moreover, it is obvious that tKe “thing demanded,” medical expenses and loss of earnings in one suit and damages for personal injuries in the other, are not the same. Hence, since there is neither an identity of “parties” nor “thing demanded” in the present and former actions, res judicata does not prevent the present litigation.

DECREE

For the reasons assigned, the judgment of the court of appeal affirming the trial court’s dismissal of plaintiff’s suit is reversed and the case is remanded to the district court for a trial on the merits.

WATSON, J., recused.

       Judge Richard J. Garvey participated in this decision as Associate Justice Ad Hoc in place of Justice Watson, recused.

      .In that case, Raymond Dornak, plaintiffs husband, filed suit against the same defendants for medical expenses and loss of earnings, alleging negligence for failure to inform Mrs. Dornak that an x-ray taken at her pre-employment physical examination disclosed a tubercular condition. The Court of Appeal, Third Circuit, finding that defendants owed no duty to plaintiff, affirmed the trial court’s dismissal of the suit for failure to state a cause of action.

      . 391 So.2d 47 (La.App.3d Cir. 1980).

      . 396 So.2d 887 (La. 1981).

      . An exception to the strict requirement that the parties be the same in both lawsuits is when the parties share the same quality. R. G. Claitor’s Realty v. Juban, 391 So.2d 394 (La.1980); Hebert v. Melancon, 368 So.2d 1198 (La.App.3d Cir. 1979).

      . Book III, Title VI of the Louisiana Civil Code “Of the Marriage Contract, and of the Respective Rights of the Parties in Relation to Their Property,” has been repealed by Acts 1979, No. 709, effective January 1, 1980.

      . The provisions of this article in effect at the time of this suit provided:
      The husband is the proper plaintiff, during the existence of the marital community to sue to enforce a right of the community.
      Where doubt exists whether the right sought to be enforced belongs to the marital community or to the separate estate of the wife, the husband and wife may sue in the alternative to enforce the right.
      The wife, however, is the proper party plaintiff to sue to enforce the right to recover wages, earnings, income, fees, stipends, proceeds and commissions due her as a result of her engaging in or pursuing any occupation, trade or profession involving her individual efforts, services, skills, arts, professional competence, vocational undertakings and personal endeavors, whether or not the same involves investments.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Jimmy Stacy WHITE.
    No. 80-KA-2519.
    Supreme Court of Louisiana.
    May 18, 1981.
    Rehearing Denied June 22, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., Sonia D. Peters, and Dale Cox, Asst. Dist. Attys., for plaintiff-appellee.
    W. Michael Adams, of Blanchard, Walker, O’Quin & Roberts, Shreveport, for defendant-appellant.
   DENNIS, Justice.

Defendant, Jimmy Stacy White, was convicted by a jury of manslaughter, La.R.S. 14:31, and sentenced to serve four years in prison at hard labor. On appeal he urges six assignments of error in which we find no reversible error. Consequently, we affirm the defendant’s conviction and sentence.

In the early morning hours of June 10, 1979, the defendant returned home from drinking beer with neighbors and found that his wife had gone out during his absence. She returned shortly, however, and entered the house holding his pistol. After confronting her, the defendant, according to one of his confessions, grabbed the gun and slung the holster from it, intending to hit her with it. He pulled the trigger instead and the bullet creased the left side of his wife’s head. He immediately took her to the hospital where she died later that day.

ASSIGNMENT OF ERROR NO. 1

The defendant assigns as error the trial court’s denial of his motion to suppress in-culpatory statements made by the defendant. The first contested statement was made by the defendant to Officer Allen Hall of the Shreveport Police Department while at the hospital.

Hall testified that he observed the defendant’s car travelling at a high rate of speed and followed it to the hospital. In part to obtain information requested by hospital personnel, Hall asked the defendant his name, the name of the victim, and his relationship to her. Hall also asked where the shooting occurred to determine whether it had happened within city police jurisdiction. The defendant responded that the shooting occurred on Pinehill Road. The officer then asked the defendant who shot the woman. The defendant stated that he had shot his wife and continued without further questioning from Hall to explain what happened. According to Hall, the defendant said he argued with his wife before leaving to have drinks with friends. When he came back, his wife was out, but she returned shortly. As the couple quarreled again, defendant’s wife pulled out a gun and aimed it at him. The defendant took the gun, pointed it at his wife, and shot her.

The defendant contends that the trial court should have granted his motion to suppress because he was not given Miranda warnings immediately when he revealed he had shot his wife. The state argues that Miranda warnings were not required because the defendant was not subjected to custodial interrogation during his statement to Hall.

The evidence supports the trial court’s ruling. The officer’s questions were posed during a general investigation of the shooting before the defendant was placed in custody or became the focus of the investigation. Miranda warnings are not a prerequisite to admissibility of statements taken by officers during non-custodial, general on-the-scene investigations, conducted to determine the facts and circumstances surrounding a possible crime, absent a showing that the investigation has passed the investigatory stage and has focused on the accused. State v. Weeks, 345 So.2d 26 (La.1977); State v. Brown, 340 So.2d 1306 (La.1976). It was only as the defendant gave the incriminating details of the killing that the investigation focused on the defendant and the officer decided to detain him. The defendant does not allege that his statement was involuntarily made. The answer to a later question by Hall was suppressed.

The defendant also unsuccessfully sought to have his oral statements made to Detective Ron Strother at the Caddo Parish Sheriff’s Office suppressed. He concedes that he was fully advised of his Miranda rights, but contends that his statements were nevertheless involuntarily made. He alleges that he was so emotionally upset and physically exhausted that he was incapable of freely and voluntarily waiving his Miranda rights.

The trial judge’s determination that the state satisfied its burden of proving that these statements were freely and voluntarily given is amply supported by the record. Although the defendant was understandably upset over the events of the past few hours, his emotional distress and fatigue were not so great as to vitiate the free and voluntary nature of his statements. The record shows that no threats, promises, or undue pressure were used. The defendant displayed no reluctance or inability to make these statements. Both statements were virtually identical, the second statement was recorded and its transcription forms the basis of assignment of error three.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 2

The defendant argues that the trial judge erred in denying his motion to suppress a gun, holster, and photographs resulting from a warrantless search of his residence.

The testimony offered at the hearing on the defendant’s motion to suppress this tangible evidence revealed that Deputies Kem-per and Lowery went to the defendant’s residence when they received information that there had been a shooting in the area. They had not been provided with an exact address, but saw a house where the lights were on, the stereo was playing, and the front door was open. They approached and saw blood on the floor and wall through the screen door. They knocked, but no one answered. One deputy went next door to see if they had found the Whites’ house and if the neighbors knew about a shooting. Defendant’s mother lived next door and his daughter was spending the night with her. They were unaware of the shooting and were eager to enter the Whites’ house. The deputies refused the relatives access but entered themselves to determine if there were other participants in the incident. They saw a trail of blood leading from the front door to the kitchen where they found a gun on the kitchen table. However, the officers did not seize the gun nor disturb the scene in any way. Instead, they called the sheriff’s office to request that an investigator be sent for.

Detective Ron Strother arrived at the house about thirty minutes later and was met there by Deputy Malee, an identification officer, Deputy Lowery and Deputy Kemper. Strother had not yet interviewed the defendant and knew only that a shooting had been reported. He and Malee entered the house, took photographs, and seized the defendant’s gun and holster. This second search of the house lasted about forty-five minutes. Afterwards, but before leaving the scene, the deputies were informed that the defendant’s wife had been shot and that the defendant had taken her to the hospital.

The United States Supreme Court in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), held that a “murder scene exception” created by the Arizona Supreme Court to the warrant requirement is inconsistent with the Fourth and Fourteenth Amendments, and restated the rules governing the search of a person’s home. Warrants are generally required to search a person’s home or his person unless “the exigencies of the situation” make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment, Mincey v. Arizona, supra, at 394, 98 S.Ct. at 2414, 57 L.Ed.2d at 301; McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153, 158 (1948). For example, the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Similarly, when the police come upon the scene of a homicide they may make a prompt, warrantless search of the area to see if there are other victims or if a killer is still on the premises. Mincey v. Arizona, supra, 437 U.S. at 392, 98 S.Ct. at 2413, 57 L.Ed.2d at 300. Cf. Michigan v. Tyler, 436 U.S. 499, 509-10, 98 S.Ct. 1942, 1949-50, 56 L.Ed.2d 486, 498-99 (1978). And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. Michigan v. Tyler, supra, 436 U.S. at 509-10, 98 S.Ct. at 1950, 56 L.Ed.2d at 498; Coolidge v. New Hampshire, 403 U.S. 443, 465-66, 91 S.Ct. 2022, 2037-38, 29 L.Ed.2d 564, 582-83 (1971). But a warrantless search must be “strictly circumscribed by the exigencies which justify its initiation.” Mincey v. Arizona, supra, 437 U.S. at 393, 98 S.Ct. at 2413, 57 L.Ed.2d at 300, citing Terry v. Ohio, 392 U.S. 1, 25-26, 88 S.Ct. 1868, 1882, 20 L.Ed.2d 889, 908 (1968). See also Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (search of arrested suspect and area within his control for weapons or evidence); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (“hot pursuit” of fleeing suspect); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (imminent destruction of evidence).

Applying these precepts, we conclude that the initial warrantless search of defendant’s residence was justified under the circumstances. Deputies Kemper and Lowery were entitled to make a prompt warrantless search of the premises to see if there were other victims or persons in need of immediate aid or if a killer was still on the premises. Moreover, their search was strictly confined to this purpose. Mincey v. Arizona, supra.

We have grave doubts, however, that the second search by officers Strother and Maler was lawful. Before Strother and Maler entered the defendant’s house, the emergency justifying the first search was over. The possibility of other victims or culprits inside had been eliminated. Furthermore, the second search cannot be justified in this case on the grounds of the need to preserve evidence. There was no real indication that evidence would be lost, destroyed or removed during the time required to obtain a search warrant. Although the house was unlocked and defendant’s relatives lived next door, it appears the state had sufficient manpower to guard the house while a warrant was obtained. And there is no suggestion that a search warrant could not easily and conveniently have been obtained.

Ultimately, we conclude, however, that the error committed in permitting introduction of the evidence gathered during the second search was harmless and not reversible. It appears that there is no reasonable possibility that the evidence complained of might have contributed to the conviction, and we are able to declare a belief that the error was harmless beyond a reasonable doubt. State v. Gibson, 391 So.2d 421 (La.1980). The state and the defendant agree that his wife was shot with the pistol after he grabbed it from her hand. The only disputed factual issue in the case was whether the defendant intended to strike or assault his wife with the pistol at the time of the shooting, i. e., whether the homicide was committed when the defendant was engaged in an aggravated battery or an aggravated assault. The evidence gathered during the second search, viz., the gun, holster and photographs, did not tend to prove or disprove this essential element of the crime or affect the credibility of the defendant as a witness.

ASSIGNMENT OF ERROR NO. 3

The defendant unsuccessfully challenged the admissibility of the original transcription of an oral statement made to Detective Strother which was tape-recorded. He argues that because the transcription contained errors and omissions from the taped statement it was not admissible since it was not used in its entirety contrary to the provisions of La. R.S. 15:450. The defendant claims that he was prejudiced by these variances with the taped statement.

We do not believe that La. R.S. 15:450 is applicable to this situation, neither do we find that the defendant was prejudiced by the admission of the original transcription.

The defendant and his attorney both signed the original transcription after briefly glancing over it. The introduction of the original erroneously transcribed, but signed statement, was to prove to the jury that the defendant had acknowledged making the recorded statement. Both the taped statement and a corrected transcript of the statement were presented to the jury. The scattered typographical errors and omissions in the original transcription were clearly pointed out to the jury.

The defendant’s argument is without merit.

ASSIGNMENT OF ERROR NO. 4

The defendant requested the trial court to grant a mistrial at the conclusion of the prosecutor’s closing argument. The defendant assigns as error the denial of that motion. He contends that the prosecutor’s remarks exceeded the permissible scope of argument and improperly influenced the jury’s verdict. The objected-to portion of the prosecutor’s remarks was as follows:

“it is up to [the] Judge to determine sentence. And there is no minimum under the law. The reason why is — or one of the reasons I suggest to you, that it [is] up to the Judge, he hears the same facts that you hear, and he gets that history that you heard. It is up to him to decide whether a person goes to jail or whether he receives a suspended sentence. What you heard today was relevant to the issue. I suggest to you during the sentencing of what a Judge can do in a situation like this when I tell you there is no minimum sentence and there is nothing to prevent this Judge from not imposing not one day in jail. Yes he is subject to jail time, I’ll tell you that too. He’s subject to going to jail. He’s also subject to receiving a suspended sentence and walking out of the courtroom on probation. And it is — that’s strictly up to the Judge.”

Argument must be confined to the evidence admitted, to the lack of evidence, to conclusions of fact that the state dr defendant may draw therefrom, and to the law applicable to the case. La. C.Cr.P. art. 774. In other than capital cases and cases carrying mandatory penalties, this court has held that sentencing regulations form no part of the “law applicable to the case.” See State v. Harris, 258 La. 720, 731, 247 So.2d 847, 850 (1971). In Harris, we said that to allow argument of these matters would inject irrelevant considerations into the jury’s deliberations as to guilt.

The state contends that the remarks were in response to defense counsel’s closing argument portraying the defendant as a good man who would continue to suffer with the painful realization that his wife was dead at his hands. The state argues that the defense counsel’s remarks implied that the defendant would have to go to jail if convicted and that the defendant had already been punished enough.

Although the prosecutor’s remarks did not misstate the law, we do not approve of such references. The jury should not be tempted to take more lightly its responsibility to hold the state to its burdensome task of proving guilt beyond a reasonable doubt by remarks which suggest that the judge may act leniently toward the defendant in the sentencing stage. The prosecutor did emphasize, however, that sentencing was in the sole province of the judge. The judge repeated this in his jury instructions and reminded the jury that the arguments of counsel were not evidence and that it was to take the law as given them by the court.

We do not believe the trial court erred in its determination that any prejudice caused by the prosecutor’s remarks was cured by his jury instructions and that the defendant was not prevented from receiving a fair trial.

ASSIGNMENT OF ERROR NOS. 5 AND 6

The remaining assignments challenge the sufficiency of the evidence supporting defendant’s conviction. The defendant alleges the trial court erred in failing to grant his motion for a new trial on that basis.

The theory of the state’s case was that the defendant committed a homicide while engaged in an aggravated battery or an aggravated assault. The state correctly points out that such a homicide is defined as manslaughter by La. R.S. 14:31(2)(a), and that intent to cause death or great bodily harm need not be proved. The defendant urges that there was insufficient evidence presented to establish an intentional misdemeanor directly affecting the person and that the evidence shows at most that he is guilty of negligent homicide.

The defendant made three statements to the police the morning of June 10th only hours after the shooting. In each statement he gave some indication that he and his wife were having an argument. In defendant’s tape-recorded statement to Detective Strother the following admission appears (as per the corrected transcription):

“Q. You asked her what she was doing with the pistol?
“A. Yeah. I got mad and I snatched it away from her, I snatched it away from her, I guess I slung it out of the holster, and I guess I was going to rap her upside the head with it because it didn’t seem like it was that important, and instead of that, I guess I squeezed the trigger.”

The state contends that by the defendant’s own admission he intended to hit his wife with the gun, an intentional misdemeanor directly affecting the person.

The defense argues that the various accounts of the shooting made by the defendant June 10th were refuted by his trial testimony which was to the effect that he had not been mad at his wife, but merely concerned about her possession of a gun, because he knew she was scared of guns. He testified that as she was going through the door he reached down and caught her hand, and when he pushed the door shut, he brought the gun up and it went off.

The jury had ample opportunity to evaluate the credibility of the various witnesses. When the evidence is viewed in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

These assignments lack merit.

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

AFFIRMED.

       The Honorables O. E. Price and Fred W. Jones, Jr. of the Court of Appeal, Second Circuit, and G. William Swift, Jr. of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice John A. Dixon, Jr. and Associate Justices Walter F. Marcus, Jr., James L. Dennis and Jack Crozier Watson.


author: WATSON, Justice.

text:
    STATE of Louisiana v. Wayne Allen McCLINTON.
    No. 80-KA-2650.
    Supreme Court of Louisiana.
    May 18, 1981.
    Rehearing Denied June 22, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Dale G. Cox, Asst. Dist. Atty., for plaintiff-appellee.
    Howard M. Fish and Jeanette G. Garrett, of Indigent Defender Program, Shreveport, for defendant-appellant.
   WATSON, Justice.

Defendant, Wayne Allen McClinton, was convicted by a jury of attempted second degree murder, in violation of LSA-R.S. 14:30.1 and 14:27. His sentence was 35 years at hard labor. He has appealed his conviction and sentence, assigning fourteen errors by the trial court, and presenting eight arguments.

FACTS

On Sunday morning, December 30, 1979, Willie Howard, Jr., the 63 year old owner of a convenience store in Shreveport, had his C. B. Grocery open for business. A man wearing a brown scarf on his chin entered about 9:00 A.M., and said: “Get up”, and “Get over there”, before shooting Howard in the face from a distance of about six feet. Because Howard turned his head, the bullet went through his nose, and he escaped serious or fatal injury. Howard recognized the gunman as a ten or eleven year customer at his store. The only other person present was Mable Howard, an older sister. Howard telephoned for an ambulance and sent Mable to fetch Vera Belion. Vera had worked in the store about eight years and Howard wanted her to help him name the assailant. Howard told Vera he was shot by “little Isaac McClinton’s brother.” She responded: “You mean, Wayne?” Howard said, “Yes.” (Tr. 453) Both Vera and Howard knew of two McClinton brothers, Isaac, Jr. and Wayne. Isaac, Sr. testified that he had only the two sons.

Howard selected McClinton’s photograph immediately from a group he looked at in the store on January 2, 1980. At trial, Howard also identified defendant as the man who shot him. Mable Howard does not normally work in the store but helps out on Sundays while Mrs. Howard is at church. She did not know McClinton and could not identify him. She said she was scared and must have been staring at the gun. Vera Belion testified that McClinton was known to her as a long time customer of the store. She also identified his photograph.

Isaac McClinton, Sr. testified that Wayne Allen was asleep that morning when his father came home from work at 9:15 A.M. Lottie McClinton, his mother, said that Wayne Allen was in bed until almost 10:30 A.M. and did not leave the house before that time. Isaac, Jr. was sleeping in the same room and said Wayne was asleep when Isaac went to the bathroom around 7:00 A.M. According to Isaac, Jr., it takes about fifteen minutes to walk to the C. B. Grocery from their house on a back trail. Isaac, Jr., admitted that Howard, called “Mr. Pete”, had known him and his family a long time. Defendant McClinton, who does not own a bicycle or a car, said that it would take him thirty minutes to walk to the C. B. Grocery on the road. He disclaimed any knowledge of a trail. Vera Belion said that most of the customers from the McClintons’ area came to the store by the back trail. Wayne Allen, his brother, father, and mother all agreed that Wayne Allen left his home that morning at 10:30 A.M. in the company of his father, mother, sister Priscilla, and Priscilla’s baby.

Defendant turned himself in on January 9,1980, after police talked to his mother on January 8 and he heard they were looking for him.

ASSIGNMENTS OF ERROR NUMBER ONE AND TWO

Defendant contends that the trial court erred in failing to suppress the identification of his photograph by the victim; that, without this identification, there was no probable cause for his arrest; and that the trial court erred in failing to suppress all evidence resulting from the illegal arrest.

It is argued that Wayne Allen McClin-ton’s name was planted in Howard’s mind by Vera Belion. Since Ms. Belion viewed the photos first, defendant maintains that the likelihood of misidentification was great.

The evidence at the motion to suppress was substantially the same as that at trial, summarized supra. Howard was very familiar with his assailant’s face, viewed him from a distance of five or six feet, looked him “dead in the eye” (Tr. 92) and had no difficulty at all in the identification. Howard knew who the gunman was and merely wanted help from Vera in remembering his first name. Although Ms. Belion viewed the photographic lineup before Howard, she did so separately and did not communicate with him in the interim.

It is conceded that there is nothing in the selection of six photographs to suggest which one was the guilty party. There was no significant lapse of time between the crime and the photographic identification. Compare Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Howard had the opportunity to view his assailant in a good light for several minutes, heard his voice, must have been attentive under the circumstances, accurately identified him by last name and relationship immediately after the event and at no time showed any uncertainty. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

These assignments of error are without merit.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant contends that a mistrial should have been granted because the state’s opening statement was detailed rather than general as required by LSA-C. Cr.P. art. 766.

The scope of the state’s opening statement is generally left to the discretion of the trial judge. State v. Kinchen, 342 So.2d 174 (La., 1977) The statement here, while more detailed than necessary, did not prejudice defendant’s rights.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER EIGHT

Defendant contends that the trial judge erred in allowing Isaac McClinton, Sr., to be questioned concerning his activities on January 9, 1980, on the ground that it was irrelevant and not competent for impeachment purposes under LSA-R.S. 15:494.

The questions were allowed as a test of the witness’s memory. The day his son was arrested should have been a memorable one. Some latitude is allowed in cross-examination. State v. Weathers, 320 So.2d 895 (La., 1975).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER NINE

Defendant contends that a mistrial should have been granted because the prosecutor asked defendant when his photograph had been taken, and thereby inferred past involvement in other crimes. LSA-C. Cr.P. art. 770. The state argues that the question was intended to show the photograph was a recent likeness but concedes that the jurors’ view of the picture was better evidence on this point. The question was withdrawn after defendant answered “Three years ago — .” (Tr. 589)

The photograph is a head shot with no indicia of a crime-connected source. There is no basis to infer that the jury regarded the question and answer as a comment on other crimes by the defendant. State v. Curry, 390 So.2d 506 (La., 1980).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TEN

Defendant contends that an adequate foundation was not laid for impeachment testimony about a pretrial statement which was inconsistent with his trial testimony.

LSA-R.S. 15:493 provides:

“Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.”

Defendant was asked if he had talked to Detectives Smith and Olds on January 9, 1980, about the events of December 30 and what he had told them about his whereabouts on that day. Defendant replied:

“A. I told them that I was at home in the bed.
“Q. All day.
“A. Not all day.”

Defendant was not specifically asked if he had told the police he had been at home all day on December 30. Detectives Olds and Smith testified for impeachment purposes that McClinton had told them he had been at home all that day. At trial, McClinton testified that he had gone to visit his girlfriend about 3:00 P.M.

There was some compliance with the statute. McClinton’s attention was directed to the time, place and circumstances of his statement to the police and he was questioned about the gist of what he told them. A better opportunity to explain the minor contradiction should have been afforded. However, the error was harmless. The question of MeClinton’s whereabouts at 3:00 P.M. was not relevant to his alibi defense and it is very unlikely that the jury was influenced by this insignificant discrepancy. There was no prejudice to McClinton’s substantial rights which would require reversal of the conviction. State v. Boyd, 359 So.2d 931 (La., 1978); LSA-C.Cr.P. art. 921.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWELVE

Defendant contends that the state’s rebuttal argument was so inflammatory that a mistrial should have been declared. LSA-C.Cr.P. art. 774. The prosecutor told the jurors that if they were shot at close range on the courthouse steps by a person with a familiar face, they would never forget the face and could make an accurate identification. It is argued that this was an appeal to the jurors’ fears and prejudices and warranted a mistrial.

The argument was designed to bolster Howard’s credibility. It was improper for the prosecutor to make the jurors think of themselves as crime victims. State v. Lee, 340 So.2d 180 (La., 1976). However, the argument was not sufficiently prejudicial to warrant the drastic remedy of a mistrial.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THIRTEEN

Defendant contends that there was insufficient evidence to convince a rational trier of fact that he is guilty, and a new trial should have been granted. It is argued that the alibi evidence outweighed the identification of the victim.

The only evidence which cannot be reconciled with defendant’s guilt is the testimony of Wayne Allen McClinton and his mother. Defendant could have committed the crime and returned home before his father arrived there and could have done so without awakening his brother. The jurors could consider Mrs. McClinton’s love for her son and his self-interest in weighing their credibility.

Viewed in the light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that defendant was guilty. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

ASSIGNMENT OF ERROR NUMBER FOURTEEN

Defendant contends that his sentence is excessive and that the trial court failed to properly comply with the sentencing guideline in LSA-C.Cr.P. art. 894.1.

Since this unprovoked and - irrational shooting of an elderly man could have resulted in “Mr. Pete’s” death, the thirty-five year sentence is not excessive on its face.

McClinton was only nineteen years of age at the time of trial and did not have an adult criminal record. The trial judge reviewed his extensive juvenile record, noted that a crime in 1976 involved the use of a dangerous weapon, and concluded that McClinton has a propensity for criminal activity. The court found an undue risk of other crimes being committed and a need for correctional treatment. Since the injury to Howard could have been fatal a lesser sentence was declared inappropriate as a deprecation of the seriousness of the offense.

There was sufficient compliance with C.Cr.P. 894.1 to provide a basis for this court’s review. The sentence of thirty-five years is not an abuse of discretion. Remand for further articulation of reasons for sentence is unnecessary.

For the foregoing reasons, the conviction and sentence of defendant, Wayne Allen McClinton, are affirmed.

AFFIRMED.

       Judges O. E. Price and Fred W. Jones, Jr., of the Court of Appeal, Second Circuit, and Judge G. William Swift, Jr., of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Dennis and Watson.

      . LSA-C.Cr.P. art. 766 provides:
      “The opening statement of the state shall explain the nature of the charge, and set forth, in general terms the nature of the evidence by which the state expects to prove the charge.”

      . LSA-R.S. 15:494 provides:
      “It is not competent to impeach a witness as to collateral facts or irrelevant matters.”

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

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

      . LSA-C.Cr.P. art. 774 provides:
      “The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
      “The argument shall not appeal to prejudice. “The state’s rebuttal shall be confined to answering the argument of the defendant.”


author: WATSON, Justice. MARCUS, Justice

text:
    Joseph N. TRAIGLE, Collector of Revenue, State of Louisiana v. GULF COAST ALUMINUM CORPORATION, et al. Robert PETERS v. LIVINGSTON WOOD PRODUCTS, INC., et al. Kevin Roy SCALES v. STATE of Louisiana, State of Louisiana Department of Highways, ABC Architectural Firm, and Engineers A & B.
    Nos. 81-C-0068, 81-C-0084 and 81-C-0143.
    Supreme Court of Louisiana.
    May 18, 1981.
    Rehearing Denied June 22, 1981.
    W. Steven Mannear, Riley F. Boudreaux, Baton Rouge, Jerry Blouin, New Orleans, for plaintiff-applicant in No. 81-C-0068.
    G. William Jarman, Sanders, Downing, Kean & Cazedessus, Baton Rouge, for defendant-respondent in No. 81-C-0068.
    Frank S. Bruno, Jerry Blouin, New Orleans, for plaintiff-relator in No. 81-C-0084.
    Henry A. Mentz, Jr., Mentz & Cashe, Hammond, for defendant-respondent in No. 81-C-0084.
    Raymond G. Jones, of Deutsch, Kerrigan & Stiles, New Orleans, for defendant-applicant in No. 81-C-0143.
    John P. Massicot, of Silvestri, Marinaro, Massicot & Davis, New Orleans, for plaintiff-respondent in No. 81-C-0143.
   WATSON, Justice.

Writs were granted in these consolidated cases to consider whether an appeal should be dismissed when a timely motion for appeal is made but the court order is not signed within the delays allowed. LSA-C. C.P. art. 2121.

FACTS

TRAIGLE v. GULF COAST ALUMINUM:

Copies of a signed judgment in favor of defendants were mailed to the parties on January 30, 1980. The delay for applying for a new trial expired on February 8,1980. LSA-C.C.P. art. 1974. The delay for a devolutive appeal expired sixty days later on April 8. LSA-C.C.P. art. 2087. On March 6, a “Petition and Order for Appeal” was filed with the clerk of court but no order of appeal was attached. An order of appeal was mailed to the clerk of court on April 2 and received on April 7. The order was signed by the district judge on April 14, 1980, after the delay for devolutive appeal had run.

Defendants filed a motion to dismiss the unlodged appeal on the ground that it was not timely. The Court of Appeal, en banc, dismissed plaintiff’s appeal. The First Circuit held that an appeal can be perfected only when a timely signature is obtained on the order of appeal. An earlier decision to the contrary in Hall v. Board of Supervisors, 387 So.2d 643 (La.App. 1 Cir. 1980) was overruled.

PETERS v. LIVINGSTON WOOD PRODUCTS:

The judgment was signed and mailed on February 28,1980. No motion for new trial was filed, and the time for taking a devolu-tive appeal expired on May 9, 1980. Plaintiff filed a petition and order of appeal on April 3, 1980, but the order was not signed until May 12.

The defendants moved for dismissal on the ground that the order was not timely. The First Circuit relied on Traigle, supra, and dismissed the appeal.

SCALES v. STATE OF LOUISIANA:

An exception of prescription on behalf of one defendant was sustained by judgment on January 17,1980. The time for taking a devolutive appeal expired on March 28. Plaintiff filed a petition and order of appeal on March 17, but the order was not signed until June 17, 1980.

The Court of Appeal issued an ex proprio motu rule to show cause why the appeal should not be dismissed and then determined that the rule should be recalled and vacated. The Fourth Circuit concluded that, when a motion for appeal is timely filed with the clerk of court, the failure of the trial court to sign the motion during the delay period does not automatically result in dismissal of the appeal. The Fourth Circuit stated its agreement with Hall, supra, while noting that it had been overruled by the First Circuit in Traigle. A conflict in the. circuits resulted.

CONCLUSION

The First Circuit held in Traigle and Peters that, under LSA-C.C.P. art. 2121, an order of appeal must be obtained, i. e. signed, within the delay allowed or the appeal will be dismissed as untimely.

In Scales, the Fourth Circuit relied on LSA-C.C.P. art. 2161 and concluded that failure to obtain the trial judge’s signature timely is not an error or defect imputable to the appellant.

The signing of an order of devolutive appeal has become a mere formality. As originally written, LSA-C.C.P. art. 2124 required that security be furnished for a de-volutive appeal. LSA-C.C.P. art. 2121 required that the order of appeal fix the amount of the appeal bond to be furnished. Since the bond had to be furnished within the delay provided for taking an appeal, the order also had to be signed during that period. Since Article 2124 has been amended to eliminate security for de-volutive appeals, the trial court is no longer required to fix an appeal bond. The signing of a devolutive appeal order has been reduced to a formality.

The articles of the Code of Civil Procedure are to be construed liberally and are not an end in themselves. The right to appeal has constitutional sanction. Appeals are favored in the law and aided by the courts.

LSA-C.C.P. art. 253 requires that all pleadings filed in an action be delivered to the clerk of court who shall retain possession of them. The clerk is required by law to retain possession of a motion and order for appeal. This requirement deprives an appellant of any absolute right to personally deliver his order to the trial judge for signature. After pleadings are filed, the clerk of court has a duty to obtain a judge’s signature on documents which require it.

The trial judge is not the only individual who can grant an order of appeal. In all parishes but Orleans, the clerk of court, and his chief deputy clerk, are authorized by LSA-C.C.P. art. 282 to grant appeals.

When an appellant timely files an order of appeal with the clerk of court, he has delivered it to a public official who has a duty to obtain the judge’s signature thereon or sign it himself. When a timely filed order of appeal is not signed during the delay period, this is not a fault or defect imputable to the appellant. LSA-C.C.P. art. 2161 mandates that no appeal shall be dismissed unless the error or fault is imputable to the appellant. Therefore, no appeal shall be dismissed when the motion for appeal is filed timely but the order is not signed until after the delay has run.

For the foregoing reasons the following is ordered in these consolidated cases:

The decision of the First Circuit, Court of Appeal in Traigle v. Gulf Coast Aluminum Corporation, No. 81-C-0068, dismissing the appellant’s appeal, is reversed, the appeal is reinstated and the case is remanded.

REVERSED AND REMANDED.

The decision of the First Circuit, Court of Appeal in Peters v. Livingston Wood Products, Inc., et al, No. 81-C-0084, dismissing the appellant’s appeal, is reversed, the appeal is reinstated, and the case is remanded.

REVERSED AND REMANDED.

The decision of the Fourth Circuit, Court of Appeal in Scales v. State of Louisiana, No. 81-C-0143, recalling and vacating its ex proprio motu rule to show cause why the appeal should not be dismissed, is affirmed and the case is remanded.

AFFIRMED AND REMANDED.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I consider that La. Code Civ.P. art. 2121 means what it says, that is, an “appeal is taken by obtaining an order therefor, within the delay allowed, from the court which rendered the judgment.” It does not mean the mere filing of a petition and order for an appeal with the clerk of court within the delay allowed. I consider that it is the obligation of the appellant to “obtain” the “order” within the “delay allowed” from the “court” which rendered the judgment. Accordingly, I respectfully dissent.

      . LSA-C.C.P. art. 2121 provides:
      “An appeal is taken by obtaining an order therefor, within the delay allowed, from the court which rendered the judgment.
      “An order of appeal may be granted on oral motion in open court, on written motion, or on petition. This order shall show the return day of the appeal in the appellate court and shall provide the amount of security to be furnished, when the law requires the determination thereof by the court.
      “When the order is granted, the clerk of court shall mail a notice of appeal to counsel of record of all other parties, to the respective appellate court, and to other parties not represented by counsel. The failure of the clerk to mail the notice does not affect the validity of the appeal.”

      . LSA-C.C.P. art. 1974 provides:
      “The delay for applying for a new trial shall be seven days, exclusive of legal holidays. Except as otherwise provided in the second paragraph hereof, this delay commences to run on the day after the judgment was signed.
      “When notice of the judgment is required under Article 1913, the delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.”

      . LSA-C.C.P. art. 2087 provides:
      “Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect of the execution of an appealable order or judgment may be taken within sixty days of:
      “(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
      “(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
      “(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.
      “When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reversed as to any party may take a devolu-tive appeal therefrom within the delays allowed in the first Paragraph of this Article or within ten days of the mailing by the clerk of the notice of the first devolutive appeal in the case, whichever is later.”

      . The petition was for a suspensive appeal without bond under LSA-R.S. 13:4581. The order of appeal was filed after the delay for suspensive appeal had run, and the appeal is being treated as devolutive.

      . Traigle v. Gulf Coast Aluminum, 391 So.2d 1290 (La.App. 1 Cir. 1980).

      . Robert Peters v. Livingston Wood Products, 393 So.2d 300 (La.App. 1 Cir. 1980).

      . Scales v. State of Louisiana, 391 So.2d 871 (La.App. 4 Cir. 1980).

      . LSA-C.C.P. art. 2161 provides:
      “An appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record. An appeal shall not be dismissed because of any other irregularity, error or defect unless it is imputable to the appellant. Except as provided in Article 2162, a motion to dismiss an appeal because of any irregularity, error, or defect which is imputable to the appellant must be filed within three days, exclusive of holidays, of the return day or the date on which the record on appeal is lodged in the appellate court, whichever is later.”

      . LSA-C.C.P. art. 2124 read in pertinent part as follows:
      “The security to be furnished for a devolutive appeal shall be fixed by the trial court at an amount sufficient to secure the payment of costs.”

      . LSA-C.C.P. art. 2121 read in pertinent part as follows:
      “An order of appeal may be granted on oral motion in open court, or on petition; it shall show the return day of the appeal in the appellate court and shall provide the amount of security to be furnished when the law requires the determination thereof by the court.”

      .LSA-C.C.P. art. 2087 provided:
      “Except as otherwise provided by law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, only within ninety days of:
      “(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
      “(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
      “(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.”
      The appeal bond was jurisdictional in nature, failure to file it timely resulted in dismissal of the appeal. See, e. g., Jones v. Gulf Insurance Company, 364 So.2d 208 (La.App. 4 Cir.1978); Landry v. Dent, 358 So.2d 673 (La.App. 1 Cir.1978); Johnson v. State Department of Highways, 356 So.2d 494 (La.App. 1 Cir.1977); Robbins v. Estate of Bordelon, 356 So.2d 113 (La. App. 3 Cir. 1978).

      . Act. 1977, No. 176 § 1.

      . LSA-C.C.P. art. 5051 provides:
      “The articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves.”

      . See, e. g., Emmons v. Agricultural Insurance Co., 245 La. 411, 158 So.2d 594 (1963).

      . LSA-C.C.P. art. 253 provides:
      “All pleadings or documents to be filed in an action or proceeding instituted or pending in a court, and all exhibits introduced in evidence, shall be delivered to the clerk of the court for such purpose. The clerk shall endorse thereon the fact and date of filing, and shall retain possession thereof for inclusion in the record, or in the files of his office, as required by law. The endorsement of the fact and date of filing shall be made upon receipt of the pleadings or documents by the clerk and shall be made without regard to whether there are orders in connection therewith to be signed by the court.”

      . According to the briefs of the parties in Scales, this procedure is followed in the 24th Judicial District Court. The clerk of court retains possession of the motion for appeal and it is presented to the trial judge along with the record in the case.

      . LSA-C.C.P. art. 282 provides in pertinent part as follows:
      “The clerk of a district court may:
      ******
      “(1) Grant an appeal....”
      LSA-C.C.P. art. 281 provides that this article, among others, shall not apply to the clerks and deputy clerks of Orleans Parish. LSA-C.C.P. art. 286 extends the power granted under article 282 to the chief deputy clerk. This power may be exercised even when the judge of the district court is present in the parish. LSA-C. C.P. arts. 285 and 286.

      . This holding is limited to devolutive appeals. Suspensive appeals generally require the furnishing of security within the delay for appeal. Security is required because the prevailing party is deprived of the right to execute his judgment until after disposition of the appeal. See LSA-C.C.P. art. 2123. Therefore, it is necessary that the provisions of the Code of Civil Procedure, requiring security for a suspensive appeal to be furnished during the delay for appeal, be strictly construed. Failure to furnish the required suspensive appeal bond within the delay period would be a fault or defect imputable to the appellant.