author: CALOGERO, Justice. MARCUS, Justice

text:
    S. J. PATTON v. SILVEY COMPANIES and Palmer-Jones Timber Company, Inc.
    No. 80-C-1874.
    Supreme Court of Louisiana.
    March 2, 1981.

      Robert C. Lowther, Jr., Lowther & Boone, Many, for plaintiff-applicant.
    Joseph Payne Williams, Brittain & Williams, Natchitoches, for defendant-respondent.
   CALOGERO, Justice.

This lawsuit presents a pair of issues, the first being whether a workman’s compensation lawsuit is premature if brought one week after the discontinuance of compensation payments and without the claimant’s prior demand to have compensation payments resumed, where the insurer in discontinuing benefits relies exclusively on a doctor’s medical report written six weeks before termination of compensation and reciting that plaintiff “will be able to return to regular work” on a given date six weeks thereafter. Assuming the lawsuit is not premature, the second issue is whether defendant’s failure to pay, or discontinuance of compensation payments, was arbitrary, capricious, or without probable cause so as to warrant judgment in plaintiff’s favor for attorney’s fees.

For the reasons which follow we hold that the lawsuit was not premature and that defendant’s discontinuance of payment of compensation was without probable cause, if not arbitrary and capricious, entitling plaintiff to a judgment for attorney’s fees.

The facts giving rise to this case are more fully set forth in the Court of Appeal opinion. Patton v. Silvey Co. et al., 385 So.2d 537 (La.App. 3d Cir. 1980). Recited in this opinion will be certain particularly pertinent facts along with some events not discussed in the opinion of the Court of Appeal.

At the time of the injury, plaintiff was employed as a logger with the Palmer-Jones Timber Company. On May 9, 1978, while operating a tractor in the course and scope of his employment, plaintiff was seriously injured when a tree limb was in some way propelled by the wheels of his tractor and punctured his abdomen. Surgery was performed on the day of the accident. The trial court’s judgment that plaintiff was on the date of trial permanently and totally disabled as a result of the injury is not in dispute at this point in the litigation.

Dr. John, who performed the surgery on plaintiff, wrote defendant the following letter dated October 18, 1978:

“To whom it may concern:
Jack Patton will be able to return to regular work on November 30, 1978.
Thank You.
From Dr. John’s Office.”

In reliance on this letter, defendants terminated plaintiff’s compensation benefits as of November 29, 1978. Plaintiff was seen by Dr. John on November 30,1978 at which time Dr. John determined that plaintiff would require an additional three months to recover. Plaintiff’s attorney was apparently informed of this fact. He initiated this lawsuit on December 8,1978. (Counsel was formally notified of the doctor’s findings in writing by report dated December 14,1978.) The insurer, on the other hand, was not advised of the latest findings of the examination by either Dr. John or plaintiff’s attorney until January 8, 1979. On January 10th, two days after this notification in the form of a letter by Dr. John and on the very morning of trial, the insurer tendered compensation benefits from November 28, 1978 up to date.

The district court reserved ruling on defendants’ exception of prematurity until trial on the merits. The court found the plaintiff to be permanently and totally disabled, that the termination of benefits on November 28th had been arbitrary and capricious, and inferentially that plaintiff’s suit was not premature. The trial judge awarded, besides a judgment of permanent and total disability and weekly benefits, twelve percent penalties and $3,000.00 attorney’s fees.

The Court of Appeal reversed, sustaining the defendant’s exception' of prematurity and dismissing plaintiff’s petition as of non-suit. The Third Circuit, relying on Jack v. Fidelity and Casualty Co. of New York, 306 So.2d 806 (La.App. 3d Cir. 1975), and Malone, Louisiana Workman’s Compensation Law and Practice, § 383, p. 490 (1951), focused on three considerations recited in that opinion for determining whether under R.S. 23:1314 a claimant’s suit is premature in a situation where there is termination of compensation followed by resumption of benefits. As stated by the Third Circuit in Jack, supra, “. . . the decisive factors in determining whether the employer can maintain his exception of prematurity are the reasonableness of his action in ceasing to make payments, his promptness in resuming them, and the manifestation of a desire to cooperate in making the payments which are legally due the claimant ...”

Our workman’s compensation statute requires that to avoid the employer’s exception of prematurity the workman must allege and be able to prove that, at the time suit is filed, he “is not being or has not been paid, and that the employer has refused to pay” the benefits to which the claimant is entitled; he must show that his allegations are with “. . . reasonable cause or foundation in fact... ”, or else similarly have his suit dismissed as premature. The question of whether or not his allegations are “.. . justified under the facts shall be determined by the court. . .” R.S. 23:1314.

One possible construction of these provisions of R.S. 23:1314 is that justification “under the facts” for the claimant’s allegation of nonpayment concerns whether plaintiff is or is not being paid his compensation, whether the employer has or has not refused to pay. Thus, according to this interpretive version of the statute, most favorable to plaintiff, if he is not being paid at the institution of suit, his suit is not premature.

An alternate interpretation which we consider more reasonable and appropriate is that justification “under the facts” coupled with the outset requirement, among others, that plaintiff must allege and prove “the employer has refused to pay” requires the court to determine more than simply whether plaintiff is receiving compensation; rather, the court must determine whether the employer has unreasonably determined to terminate benefits, or has unreasonably refused to pay.

It is by virtue of the latter interpretation that Malone espouses and Jack v. Fidelity and Casualty Co. of New York, supra, has applied the three considerations noted above, namely whether there existed a reasonableness in ceasing to make payments, promptness in resuming them, and manifestation of a desire to cooperate.

Because in a case such as this where suit is filed shortly after termination, a defendant’s resumption of payment and manifestation of willingness to cooperate is possibly prompted by the plaintiff’s institution of suit, with defendant attempting to enhance its defense of prematurity, and considering that the exception of prematurity . . must be determined according to the facts and circumstances which existed at the time the suit was filed ... ”, our focus is necessarily on only the first of the three considerations mentioned above, namely, whether defendant’s termination of benefits was reasonable.

The trial court concluded that the termination of payments was not reasonable on the part of the defendant, but rather was arbitrary and capricious. We agree with that determination, at least to the extent that defendant’s actions are characterized as unreasonable. Plaintiff had sustained from the abdominal puncture wound what Dr. John characterized a serious injury involving extensive damage to the abdominal muscles from slightly right of midline well into the left lumbar region. The doctor testified that treatment involved major surgery to remove devitalized and bruised musculature. In terminating payments less than six months after injury, defendants chose to rely on the report of Dr. John which was obviously a mere prediction of plaintiff’s anticipated progress, a report given six weeks before the date of termination. The defendants cite to this Court the case of Brady v. Triangle Timber Co., 353 So.2d 311 (La.App. 1st Cir. 1977), for the proposition that an employer is not unreasonable in relying on a positive physician’s report in terminating benefits. A close examination of that case reveals that there was no prediction or forecast of recovery, as here. Rather the doctor’s report in Brady, supra, attested to the claimant’s health in the present tense, as of the date of the report.

There is nowhere in the jurisprudence authority for an employer to rely on a treating physician’s prognosis, by its very nature an equivocal statement of the claimant’s future condition. The unreliability of prognostication should be especially evident where, as in the instant case, the report is rendered so far in advance of the expected date of recovery. Defendant’s assertion of the reasonableness of its action is further undermined by the fact that a current and unequivocal account of plaintiff’s condition was obtainable on November 30, 1978, by means of a simple telephone call to the office of Dr. John.

The termination of compensation by defendant in this case was at a time when plaintiff was still disabled. And because there was simply a reliance on a prediction six weeks prior, the termination was unreasonable and in violation of the employer’s duty to pay. Accordingly, we conclude that plaintiff’s allegation in the trial court of the nonpayment of compensation was fully justified under the facts — plaintiff was, in fact, not being paid and the employer had unreasonably terminated payment to which plaintiff was entitled under the law. Hence, the trial judge’s determination of the issue of prematurity under R.S. 23:1314 was correct; the exception was not well founded and should not have been sustained by the Court of Appeal.

Next is the issue of the trial court’s award of attorney’s fees of $3,000.00 and the Court of Appeal’s reversal of that portion of the judgment.

The law provides for the payment of reasonable attorney’s fees where the failure on the part of the employer to provide compensation benefits is arbitrary, capricious, or without probable cause. R.S. 23:1201.2. Unlike those attorney’s fees limited by R.S. 23:1141 (the attorney’s fee portion of the plaintiff’s award is there limited to twenty percent of the first $5,000.00 and ten percent of the excess), the only restriction on the amount of attorney’s fees to be assessed directly against the insurer and/or employer for arbitrary failure to pay is that they be reasonable. “The [R.S. 23:1141] limitation is intended as a protection to the employee. Where, however, the fee is assessed as a penalty payable by the insurer, the purpose of the limitation disappears and is to be ignored, and the fee can be fixed by the court according to LSA-R.S. 22:658.” Malone, Louisiana Civil Law Treatise, vol. 14, § 389, p. 284 (1980).

In this case, the trial court found the failure to pay to be arbitrary and capricious and awarded attorney’s fees in the amount of $3,000.00. Inasmuch as the statute allows the assessment of attorney’s fees if the failure to pay is arbitrary, capricious, or without probable cause, we conclude that the fees were properly allowed. Having concluded relative to consideration of the prematurity exception that termination was not reasonable we find equally that the termination was at least without probable cause, if not arbitrary and capricious. Plaintiff is entitled therefore to reasonable attorney’s fees.

Plaintiff claims the $3,000.00 award to have been proper for legal services in the district court and asks for an additional fee for services thereafter. The defendants contend that $3,000.00 is excessive for services rendered in the trial court.

An award to plaintiff against defendant of $3,000.00 in attorney’s fees for required legal services in the trial court, in the Court of Appeal and in this Court, we determine to be reasonable and proper.

Decree

For the foregoing reasons the judgment of the Court of Appeal is reversed, the defendant’s exception of prematurity is overruled, and the trial court judgment including attorney’s fees in the amount of $3,000 is reinstated, except insofar as that judgment imposed “penalties as provided by law.”

JUDGMENT OF THE COURT OF APPEAL REVERSED; TRIAL COURT JUDGMENT, AS AMENDED, REINSTATED.

MARCUS, J., dissents, and assigns reasons.

BLANCHE, J., dissents, being of the opinion that the judgment of the court of appeal is correct.

WATSON, J., dissents, being of the opinion that the Court of Appeal was correct.

MARCUS, Justice

(dissenting).

I am unable to say under the facts of this case that defendant’s termination of benefits was unreasonable. Hence, I agree with the court of appeal that the suit was premature. Even assuming otherwise, I do not consider that the failure to provide compensation benefits was arbitrary, capricious or without probable cause warranting the award of penalties and attorney’s fees. Accordingly, I respectfully dissent.

      . Apparently, through some technical error, benefits were terminated one day early. This fact is considered by this Court to be of no significance in the disposition of this case.

      . Of course, a ruling with respect to the exception of prematurity would more properly have been made prior to the court’s proceeding with other matters, as R.S. 23:1314 mandates as much. The error is moot, however, in view of our finding that the result of the court’s ruling, though made at a belated point in the trial, was correct.

      . Plaintiff relator did not in this Court assign as error the Court of Appeal’s reversing the trial court’s judgment awarding “penalties as provided by law”, nor does plaintiff argue in brief his entitlement to such penalties. For these reasons, we do not address that issue.

      . This work, in its more current version, appears in the Louisiana Civil Law Treatise, Vol. 14, § 383 (1980).

      . R.S. 23:1314 appears as follows:
      “Unless in the verified petition above referred to it is alleged (where the petition is filed by the employee or his dependents) that the employee or the dependents is not being or has not been paid, and that the employer has refused to pay, the maximum percent of wages to which petitioner is entitled under the provisions of this Chapter, or that the employee has not been furnished with copies of the reports of examination or examinations made by employer’s medical practitioners after written request therefor has been made under the provisions of this Chapter, the presentation or filing of such petition shall be premature and shall be dismissed; when such allegations are contained in such petition and are denied by the employer at the time fixed thereunder by the court, if it be shown that such allegations are without reasonable cause or foundation in fact, such petition shall be dismissed; and the question of whether or not such allegations of nonpayment or of failure to render medical attention or failure to furnish medical reports is justified under the facts shall be determined by the court before proceeding with the hearing of the other issues involved.”

      . Jack v. Fidelity and Casualty Co. of New York, 306 So.2d 806 (La.App. 3d Cir. 1975). See also Malone, Louisiana Civil Law Treatise, vol. 14, § 383, p. 236 (1980).

      . The law also provides for the payment of penalties in the amount of twelve percent of the unpaid claim for an insurer’s (R.S. 22:658) or for an employer’s (R.S. 23:1201.2) failure to pay when the failure is found to be arbitrary, capricious, or without probable cause. However, as we noted in footnote 1, supra, the matter of penalties is one no longer here at issue because of plaintiff’s failure to have complained to this Court of the Court of Appeal’s reversal of that award.


source: Caselaw Access Project

author:
MARCUS, Justice.
      LEMMON, Justice, DENNIS, Justice,

license: Public Domain

text:
    Edgar M. SHIPP et ux. v. CITY OF ALEXANDRIA et al.
    No. 80-C-1901.
    Supreme Court of Louisiana.
    March 2, 1981.
    Howard B. Gist, III, Gist, Methvin, Hughes & Munsterman, Alexandria, for defendants-applicants.
    Stephen E. Everett, Law Offices of Stephen E. Everett, Alexandria, for plaintiffs-respondents.
   MARCUS, Justice.

This suit involves a claim for damages for personal injuries sustained by Zilphia Ruth Shipp when she stepped off a curb onto an alleged defective area of the street and fell. Mrs. Shipp and her husband, Edgar M. Shipp, filed suit against the City of Alexandria and its insurer, Maryland Casualty Company, alleging that her injuries were caused by the negligence of the city to maintain its property in a condition safe for public use. The city answered generally denying the allegations of the petition and further answered by denying any “actual or constructive” notice of the alleged “depression or pothole” and by asserting that if it should be found liable, the contributory negligence and assumption of risk on the part of Mrs. Shipp would bar recovery.

The trial judge granted Maryland Casualty’s motion for summary judgment grounded on the claim that its policy excluded coverage for accidents occurring as a result of defects in the streets and dismissed plaintiffs’ suit as against it. After trial on the merits, the trial judge, relying on this court’s decision in Loescher v. Parr, 324 So.2d 441 (La.1976), found strict liability on the part of the city under La.Civ.Code art. 2317 for the damages sustained by plaintiffs resulting from the fall of Mrs. Shipp caused by a “hole or expansion joint” in the street. The trial judge further found that there was “no evidence that the injury was caused by the fault on the part of the victim.” Judgment was rendered in favor of the plaintiffs and against the city in the amount of $5,864.50 together with legal interest thereon from date of judicial demand until paid and all costs. The court of appeal affirmed. Upon the city’s application, we granted certiorari to review the correctness of that judgment.

The facts are not in dispute. Mrs. Shipp had just emerged with her daughter and grandson from a law office located on De-Soto Street in Alexandria, Louisiana. It was about 10:30 in the morning and a sunny day. Mrs. Shipp was headed toward her daughter’s car parked in the middle of the same block on DeSoto Street. As she was proceeding around the back of the car to get in the driver’s side of the back seat, she stepped unassisted off the curb into the street. As she did, her left foot landed in a hole or crack in the street pavement. Her left ankle twisted and she fell. She was taken by her daughter to the emergency room at the hospital and then referred to an orthopedic surgeon for treatment for what was subsequently diagnosed as a sprain of the left foot.

Mrs. Shipp, who was 61 years of age and suffering from impaired vision due to a cataract in her left eye, stated that she did not see the hole before she fell and that she had impaired depth perception at the time. Plaintiff, her daughter and her grandson all testified that the hole appeared to be an inch and a half to two inches deeper than the surrounding concrete.

The courts below premised their finding of liability against the city on La. Civ.Code art. 2317, which provides in pertinent part:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.

We have described the legal foundation for imposing liability under art. 2317 in the following terms:

When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved. The liability arises from his legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others.

Jones v. City of Baton Rouge, 388 So.2d 737, 739 (La.1978), citing Loescher v. Parr, supra, at 446. An injured party seeking damages under art. 2317 need not prove negligence, that is, that any particular act or omission on the part of the defendant caused his injuries. He must only prove that the thing which caused the damage was in the care or custody of the defendant, that the thing had a vice or defect, that is, that it occasioned an unreasonable risk of injury to another, and that his injury was caused by the defect. Once these elements are proven, the custodian can escape liability only by showing that the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force. Jones v. City of Baton Rouge, supra; Loescher v. Parr, supra.

In Jones v. City of Baton Rouge, supra, we held that municipalities and other public bodies may be found liable for damages for things in their custody, and that where delictual responsibility is based not on negligence but on legal fault under art. 2317, the fact of whether or not a public body had knowledge of the existence of the danger is irrelevant.

The parties have not disputed the fact that the street where Mrs. Shipp fell was under the care and custody of the city. Moreover, it is clear that Mrs. Shipp’s injury was caused when she stepped off the curb onto a defective area of the pavement. The only issue remaining for our determination, then, is whether plaintiffs met the burden of proving by a preponderance of the evidence that the defective area occasioned an unreasonable risk of injury to Mrs. Shipp. We think not.

The only evidence offered at trial describing this alleged defect was the testimony of Mrs. Shipp, her daughter and her grandson and some photographs taken of the area approximately nine months after the accident. Mrs. Shipp and her relatives described the area as a “hole about an inch and a half to two inches deep.” No evidence was offered as to the width of the “hole” or the height of the curb from which plaintiff stepped. Moreover, the photographs simply show a broken area in the pavement and do not assist us in determining the extent and nature of the alleged defect. Based on this evidence, we conclude that plaintiffs failed to prove that the defect in the street occasioned an unreasonable risk of injury to Mrs. Shipp. The fact that Mrs. Shipp fell does not elevate the condition of the street to that of an unreasonably dangerous vice or defect.

The facts of Jones v. City of Baton Rouge, supra, are clearly distinguishable from those in the instant case. In Jones, we found the City of Baton Rouge liable under art. 2317 to an injured party when a catch basin cover located in the middle of a city street unexpectedly gave way beneath the plaintiff, causing her to fall into the catch basin below. We considered the cover defective in the sense that the risk of falling four or five feet into a catch basin as a result of stepping down upon a solid firm metal surface was unreasonable. In the instant case, however, the plaintiffs have not shown that the area in the street where Mrs. Shipp fell was a defect in the sense that the risk of falling and suffering an injury due to this imperfection in the street pavement was so unreasonable as to justify the imposition of non-negligent liability. Hence, we conclude that the city is not liable under art. 2317 to plaintiffs for damages for injuries sustained by Mrs. Shipp. Inasmuch as we find no liability on behalf of the city, we need not reach the issue of whether the fault of the victim is a defense in the instant case. Under these circumstances, we find that the courts below erred in finding that plaintiffs met the burden of proving that the defective area in the street presented an unreasonable risk of injury to Mrs. Shipp.

Moreover, plaintiffs failed to meet the burden of proving that the city was negligent under La.Civ. Code arts. 2315 and 2316. Therefore, they are not entitled to recover under this theory of fault.

Accordingly, we must reverse the judgment of the court of appeal and dismiss plaintiffs’ suit.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and judgment is rendered herein in favor of defendant, City of Alexandria, and against plaintiffs, Edgar M. Shipp and his wife, Zilphia Ruth Shipp, dismissing their suit at their cost.

LEMMON, J., concurs and assigns reasons.

DENNIS, J., dissents with reasons.

LEMMON, Justice,

concurring.

This case presents a minor imperfection in the street which involves some risk of harm. However, when the risk is weighed against the utility of the City’s operation of public streets, I cannot say that the risk of harm is unreasonable. I therefore concur in the dismissal of plaintiff’s suit.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The trial judge found that “[t]he evidence adequately demonstrates that the defect in question is an expansion joint, which through erosion, exposure and simple deterioration, has become a trap for the unwary.” The photographs in our record are of poor quality. It is difficult to understand from whence this Court, which has available only a cold record and the poor quality photographs, derives the omniscience which enables it to say that the defect in question did not create an unreasonable risk of harm to the plaintiff. Perhaps, had she been a younger woman with better eyesight she would have escaped injury. However, even the aged, the very young, and the infirm ought to have the right to use city streets and be protected against unreasonable risks of harm to them.

Furthermore, since the trial judge in his reasons for judgment stated that the defect was of long standing, the plaintiff might properly recover under a theory of negligence. It is quite possible that the dangerous condition had existed for a sufficiently long period of time for the city to gain actual knowledge of the defect in the exercise of due diligence. Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430, 433 (La.1975). Thus, charged with constructive notice, the city breached its duty to repair and maintain the streets in a reasonably safe condition. Additionally, the trial judge found the victim without fault, though it must be noted, that a defendant’s duty sometimes encompasses the risk of harm to careless plaintiffs as well. Rue v. State Dept. of Highways, 372 So.2d 1197 (La.1979).

      . 392 So.2d 1078 (La.App. 3d Cir. 1980).

      . 394 So.2d 267 (La.1980).


author: ELLIS, Justice ad hoc.

text:
    STATE of Louisiana v. Sherry E. LITTLETON.
    No. 80KA1932.
    Supreme Court of Louisiana.
    March 2, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Sam A. Smith, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Steven A. Hansen, Malcolm DeCelle, Jr., DeCelle & Hansen, West Monroe, for defendant-appellant.
   ELLIS, Justice ad hoc.

Defendant Sherry Littleton is charged by indictment with having committed the crime of perjury by giving false testimony before a grand jury on March 27, 1979. The false testimony she is alleged to have given is that during the late afternoon and evening of January 17, and the early morning of January 18, 1979, she was at home with her husband and children; that after the children were asleep, she and her husband quarrelled, that he struck her a couple of times, knocking her down; that she got a shotgun and, when he came towards her again, she shot and killed him, either accidentally or in self-defense.

Defendant was brought to trial before a jury of six on the perjury charge, found guilty and sentenced to serve five years at hard labor. She has appealed.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Prior to trial, defendant filed a motion to recuse all five judges of the Fourth Judicial District, on the ground that three of them, including the trial judge herein, had presided over various related proceedings involving defendant and her sister, and that those three judges, together with the other two, had such knowledge of the facts of the case as to preclude their giving defendant a fair trial. The motion was denied by the trial judge, without referring it to another judge.

La.C.Cr.P. Art. 671 sets forth the grounds for recusation of a judge, in pertinent part, as follows:

“In a criminal case a judge of any court, trial or appellate, shall be recused when he:
“(1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial;
* * * * * *
“(6) Would be unable, for any other reason, to conduct a fair and impartial trial.”

La.C.Cr.P. Art. 674 provides in part:

“If a valid ground for recusation is set forth in the motion, th,e judge shall either recuse himself, or refer the motion for hearing to another judge or to a judge ad hoc, as provided in Article 675.”

Defendant maintains that a “valid ground for recusation is set forth” and the trial court erred therefore in failing to refer the motion for hearing to another judge.

This Court, however, has held, in State v. Lukefahr, 363 So.2d 661, 663 (La.1978):

“A motion to recuse a trial judge must be based on more than mere general conclu-sory allegations. State v. Bell, 346 So.2d 1090 (La.1977); State v. Maduell, 326 So.2d 820 (La.1976). State v. Collins, 288 So.2d 602 (La.1974). If the motion, on its face, does not show grounds to recuse even if the allegations are proved, the trial judge may overrule the motion without referring it to another judge. La.C. Cr.P. art. 674, State v. Bell and State v. Collins, cited above.”

In State v. Bell, supra at 1100, the mere fact that the trial judge had served as judge at the defendant’s first trial and had made unfavorable rulings was held insufficient to establish that the judge had developed bias or prejudice to such an extent that he would be unable to conduct a fair and impartial trial. State v. Navarre, 292 So.2d 210 (La.1974). In Bell as in the present case, the defendant failed to point out any particular words or conduct demonstrating bias or prejudice on the part of the trial judge. The Bell Court concluded that the trial judge was correct in dismissing the motion without referring it to another judge.

Furthermore, in State v. Manning, 380 So.2d 54, 58 (La.1980), this Court noted that although in a judge trial a preconception of the defendant’s guilt is probably grounds for recusation, this is not necessarily so in a jury trial. State v. Wilson, 362 So.2d 536 (La.1978).

These assignments of error lack merit.

ASSIGNMENTS OF ERROR NOS. 3, 4, 5 AND 6

These assignments of error relate to the admissibility of certain evidence at the trial. The only witness who testified for the State was Winfred Chappie. He stated that, on the afternoon of January 17, 1979, at about dark, defendant and her sister came into the Flamingo Lounge, where Chappie worked. He testified that they had two or three drinks together, and that during that time defendant said that her husband was beating her a lot. After some time, they left the Flamingo and went to Sal’s Saloon, where they shot some pool and had two, three or four drinks. After about an hour, they went to Scotland Yard, a discotheque. He testified that there was further discussion of John Littleton, defendant’s husband, but that he could not recall who had said what, although both defendant and her sister had taken part in the conversation. Defendant objected to further testimony on the grounds that any remarks made by defendant’s sister would be hearsay, and that any testimony elicited might tend to prove a conspiracy to commit murder, which would be inadmissible since the State had stated in pretrial discovery that it would introduce no evidence of other crimes. The objections were overruled.

The witness then testified that defendant said she was afraid to leave her husband because she feared losing her children. He was asked to shoot Littleton, but could not remember by whom, and he refused.

At Scotland Yard, defendant and her sister entered a wet T-shirt contest, and they all had three or four more drinks. The contest lasted 30 minutes to an hour, after which the group went to pick up defendant’s car at the Flamingo, and then went to the parking lot of 7-11 store. Chappie testified that at defendant’s request he struck her on each side of her face with his palm and the back of his hand, three or four times, so as to make it appear that she had been beaten. He then left defendant and her sister. The witness later testified that it was between 11 and 12 o’clock at night when they left the Flamingo to go to the 7-11.

Clearly, Chappie’s testimony contradicted defendant’s sworn testimony before the grand jury in a number of respects. It tended to show that defendant was not at home on the late afternoon and evening of January 17, contrary to her statement to the grand jury. It further tended to show that the shooting of her husband was premeditated, rather than accidental or in self-defense, once again contrary to her grand jury testimony.

Chappie’s testimony relative to defendant’s whereabouts on the evening of January 17 is his own direct testimony and not hearsay. His testimony relative to the discussions about shooting defendant’s husband is also admissible because it does not assert the truthfulness of what was said by defendant or her sister, but rather that the remarks were, in fact, made. Any such evidence which tends to show that defendant wilfully and knowingly lied under oath should be admissible in a perjury prosecution, and the words and conduct of the defendant tending to make that proof are relevant and admissible.

Defendant further argues that Chappie’s testimony relative to the discussion of the murder of defendant’s husband is inadmissible, since it constitutes evidence of another crime, conspiracy to commit first degree murder, and no notice was given defendant by the prosecution that evidence of another crime was to be used. State v. Prieur, 277 So.2d 126 (La.1973). However, in cases in which evidence of another crime is part of the proof necessary to establish the elements of the crime charged, no such notice is necessary. State v. Hatcher, 372 So.2d 1024 (La.1979).

Since we find no merit in defendant’s assignments of error, the conviction and sentence are affirmed.

AFFIRMED.

       Judges Ellis, Cole and Watkins of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Watson, and Lemmon.


author: CHIASSON, Justice Ad Hoc.

text:
    STATE of Louisiana v. Alfred G. NIETO.
    No. 80-K-1937.
    Supreme Court of Louisiana.
    March 2, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Leon Can-nizzaro, Asst. Dist. Attys., for plaintiff-relator.
    James L. Cannella, Metairie, for plaintiff-respondent.
   CHIASSON, Justice Ad Hoc.

Defendant, Alfred G. Nieto, was charged by bill of information on July 10,1980, with possession with intent to distribute a controlled dangerous substance, to wit: Metha-qualone, a violation of La.R.S. 40:967. On August 8, 1980, defendant filed a motion to suppress for use as evidence 500 quaalude tablets seized from his vehicle. After a hearing, the trial court granted defendant’s motion on August 15, 1980. This Court granted the state’s application to review that judgment.

At the hearing on the motion to suppress, the following facts were adduced. New Orleans Police Officer Harry O’Neal testified that on June 23,1980, he received a call from a reliable confidential informant. The informant, who was said to have supplied accurate information in the past, stated that he had overheard a conversation with the subject named, Danny, of 4217 St. Charles Avenue, and in that conversation learned that the subject named, Alfred, would be arriving at 4217 St. Charles, around 8:00 or 8:30 that night to purchase 500 quaalude tablets. Acting upon this tip, the police proceeded to the St. Charles Avenue address and began a surveillance of the residence. The witness then testified that at about 8:05 p. m., a white sedan arrived in front of the residence; the suspect left the vehicle and entered the house. While the suspect was inside, the police checked the vehicle’s registration and learned that it was registered in the name of Alfred Nieto, the defendant. At 9:15 p. m., the suspect, who had arrived empty-handed, exited the residence carrying a red and white plastic bag and drove off. The suspect’s car was followed and finally stopped in the 1600 block of St. Charles Avenue; defendant was then arrested. Officer O’Neal testified that the defendant had been allowed to drive away before he was arrested so as not to alert the occupants of 4217 St. Charles Avenue. During his surveillance, Officer O’Neal said that there appeared to have been other transactions at the stakeout and that it was his intention to obtain a search warrant for that dwelling.

After defendant had been stopped and placed under arrest, Officer O’Neal observed the red and white plastic bag on the rear seat of the vehicle. The officer then entered the car, removed the bag, and upon opening it, discovered five clear plastic bags inside, each containing one hundred quaa-lude tablets.

The search and seizure of the quaa-ludes was made without a warrant as required by the Fourth Amendment to the United States Constitution and the Louisiana Constitution, Article 1 § 5 (1974). A search conducted without a warrant is per se unreasonable unless it falls within one of the specifically delineated exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Packard, 389 So.2d 56 (La.1980). In a case such as this, the burden is on the state to show that a search is justified by some exception to the warrant requirement. State v. Pomes, 376 So.2d 133 (La.1979); State v. Matthews, 366 So.2d 1348 (La.1978); State v. Franklin, 353 So.2d 1315 (La.1977).

Our initial inquiry is whether there was reasonable grounds to stop the defendant and probable cause to arrest him. If the initial stop was not justified, then the subsequent acts are illegal fruits of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1969).

As stated by this Court in State v. Dupart, 383 So.2d 1226 (La.1979):

“ * * * The right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by La.Code Crim.P. art. 215.1, as well as both the federal and state jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Chopin, 372 So.2d 1222 (La.1979); State v. Drew, 360 So.2d 500 (La.1978), cert. denied, 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25 (1979). Probable cause is not required to justify an investigatory stop; reasonable suspicion is sufficient. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); United States v. Hall, 557 F.2d 1114 (5th Cir. 1977), cert. denied, 434 U.S. 907, 98 S.Ct. 308, 54 L.Ed.2d 195 (1978); State v. Chopin, supra; State v. Drew, supra. Terry v. Ohio and Adams v. Williams approved investigatory stops of individuals based on reasonable suspicion. The standards set forth in Terry and Adams have been applied to the stopping of automobiles based on reasonable suspicion. United States v. Wright, 565 F.2d 486 (8th Cir. 1977), cert. denied, 435 U.S. 974, 98 S.Ct. 1621, 56 L.Ed.2d 67 (1978); United States v. Hall, supra; State v. Rogers, 324 So.2d 403 (La.1975); State v. Weathers, 320 So.2d 892 (La.1975); State v. Scott, 307 So.2d 291 (La.1975); State v. Herron, 301 So.2d 312 (La.1974); State v. Jefferson, 284 So.2d 882 (La.1973).”

From the facts of this case, we make the determination that there was more than reasonable suspicion to stop the Nieto vehicle when the officers did.

In State v. Thomas, 349 So.2d 270, 272 (La.1977), this Court sets forth the principles applicable to a warrantless arrest:

“A warrantless arrest, no less than an arrest pursuant to a validly issued warrant, must be based on probable cause. State v. Ranker, 343 So.2d 189 (La.1977); State v. Jackson, 337 So.2d 508 (La.1976); State v. Scott, 320 So.2d 538 (La.1975); State v. Terracina, 309 So.2d 271 (La.1975); State v. Odom, 292 So.2d 189 (La.1974). Probable cause exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Marks, 337 So.2d 1177 (La.1976); State v. Randolph, 337 So.2d 498 (La.1976); State v. Gilmore, 323 So.2d 459 (La.1975); State v. Wood, 262 La. 259, 263 So.2d 28 (1972). While the officer need not have sufficient proof to convict, mere suspicion is not enough to justify an arrest. State v. Ranker, supra; State v. Randolph, supra.

The confidential informant in this case was said to have given the police reliable information in the past that had led to the arrest of a number of narcotic violators. Officer O’Neal’s testimony indicated that the informant had come by his information when he overheard a conversation with the resident of the St. Charles Avenue dwelling where the drug deal was supposed to occur. Additionally, Officer O’Neal observed a suspect arrive by vehicle at the appointed time and enter the residence. A check of the vehicle’s registration revealed that it was in fact registered to an individual with the first name of Alfred as the informant’s tip had specified.

The mere observation of the defendant driving up to the residence and exiting it with a plastic bag appears to have been conduct consistent with innocent pursuits, State v. Mendoza, 376 So.2d 139 (La.1979) and would not appear alone to constitute probable cause to arrest. However, the combination of (1) the informant’s asserted prior reliability, (2) the fact that the information was learned by directly overhearing the participants and was thus credible, and (3)that the tip was substantiated by police observation establishes to this Court that probable cause did in fact exist for the arrest. We determine that a reasonably cautious police officer under these circumstances was justified in concluding that the defendant had committed or was committing an offense and was not merely suspicious.

Since the arrest was based on probable cause, our next determination is whether the seizure of the plastic bag from the back seat of the car falls within one of the specifically delineated exceptions to the warrant requirement. Coolidge, supra. Packard, supra. Under the facts of this case, we find the “automobile emergency exception” as outlined by the United States Supreme Court in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) and by this Court in State v. Guzman, 362 So.2d 744 (La.1978) to be applicable to this case.

As stated by this Court in Guzman, supra, at page 748:

“ * * * The cases set out two conditions that must be satisfied before a warrant-less search of a movable vehicle is authorized: (1) there must be probable cause to believe that the vehicle contained contraband or evidence of a crime; and (2) there must be ‘exigent circumstances’ requiring an immediate warrantless search, i. e., the impracticability of obtaining a warrant due to the possibility that the car could be moved either by its occupants, if not arrested, or by someone else. An immediate warrantless search is, therefore, constitutionally permissible when ‘the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.’ Chambers v. Maroney, supra, 399 U.S. at 51, 90 S.Ct. at 1981, 26 L.Ed.2d at 428.”

In this case, the officers, based upon their observation of the defendant removing the bag from the dwelling and upon the corroborated information received from a reliable confidential informant, were justified in concluding that the bag and its contents were evidence of a crime.

In addition, the police were faced with exigent circumstances requiring that they either seize and hold the vehicle before presenting the probable cause issue to a magistrate or carry out an immediate search without warrant. Exigency here consists of the fact that the vehicle was on a public street, that it may have been moved or the evidence lost, stolen or secreted away. This appears to have been a genuine threat given the involvement of a number of individuals in the alleged drug dealings. Since the alternatives of an immediate search or holding the vehicle until magistrate approval are constitutionally equivalent, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the officers’ warrantless search in this case was reasonable under the circumstances.

We likened this case to the facts in Guzman, supra, and find that under that ruling the search and seizure of this red and white plastic bag was permissible. In Guzman, the police had to search the car and eventually found a brown paper bag taped under the dashboard. We find the Guzman decision to be controlling under the facts of this case and hold that the warrantless search and seizure of the evidence in this case was justified.

The decision of the trial court granting defendant’s motion to suppress is reversed and set aside, and the case is remanded to the trial court for further proceedings in accordance with law and in a manner not inconsistent with this opinion.

REVERSED AND REMANDED.

       Judges Covington, Chiasson and Lear of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Associate Justices Calogero, Marcus, Dennis and Blanche.

      . The bag apparently was not a clear bag and could not be seen through, but was instead a colored plastic draw string shopping bag which concealed its contents from the officers.

      . See State v. Roach, 322 So.2d 222 (La.1975) where this Court indicated its acceptance of similar proof of reliability without requiring a more thorough showing or requiring that prior information has led to convictions.


author: WATSON, Justice. MARCUS, Justice

text:
    Bobby LEWIS et ux., v. Leslie Michael TILL et al.
    No. 80-C-1977.
    Supreme Court of Louisiana.
    March 2, 1981.
    Alonzo P. Wilson, Trimble, Randow, Smith & Wilson, Alexandria, for plaintiffs-applicants.

      James Á. Bolen, Jr., Gregory S. Erwin, Bolen & Erwin, Alexandria, for defendants-respondents.
   WATSON, Justice.

Plaintiffs, Bobby and Jennifer Bertram Lewis, seek damages for the death of their eighteen month old son Scott. At issue is whether the father has a cause of action against the homeowners’ insurer if the negligence of the mother contributed to the accident.

Scott A. Lewis died after he was hit by a GMC pickup truck in the driveway of 2228 Madeline Street, Alexandria, Louisiana, on July 7, 1978. Negligence was averred on the part of the minor driver of the pickup, Leslie Michael Till. The various defendants answered alleging contributory negligence on the part of the mother. The father, Bobby Lewis, then made an alternative demand against the homeowners’ insurer, Fireman’s Fund Insurance Company, asserting that, if his wife were negligent, he is entitled to recover against Fireman’s Fund. Fireman’s Fund received a summary judgment on the alternative demand as to all claims except funeral expenses. The Court of Appeal, Third Circuit, affirmed the summary judgment as to the claim for general damages. The question of medical and funeral expenses under the policy was remanded for trial on the merits. The trial and appellate courts relied on Carter v. Salter, 351 So.2d 312 (La.App. 3 Cir. 1977), writ denied 352 So.2d 1045, to hold that any negligence by the wife would be imputed to the husband and bar survival and wrongful death actions by the father based on that negligence. A writ was granted to review the partial summary judgment in favor of Fireman’s Fund Insurance Company. 393 So.2d 740 (La.,1980).

The Court of Appeal correctly disposed of the issue of medical and funeral expenses; the question of whether those expenses are covered by the policy must await trial on the merits. Lewis v. Till, 387 So.2d 706 (La.App. 3 Cir. 1980).

Under LSA-C.C. art. 2315, Scott’s right to recover damages for his fatal injury survives in favor of the parents and they also have a right of action to recover their own damages for his wrongful death. The question is whether the father’s claims are barred if the mother were negligent.

THE SURVIVAL ACTION:

“The plaintiffs inherit this action for damages suffered by the child from him, and it must be treated as though the child was alive and suing for an injury to himself.” Westerfield v. Levis, 43 La.Ann. 63, 9 So. 52 at 54 (1891).

Scott Lewis was too young to be capable of legal fault. Any contributory negligence by his mother is irrelevant to the child’s cause of action against another tort-feasor whose fault was responsible for his damages. “[T]he negligence of the child’s parents has nothing to do with the issue.” Westerfield v. Levis, supra, at 9 So. 56. Thus, any negligence of Jennifer Lewis does not bar her right to benefit from the survival action. Austrum v. City of Baton Rouge, 282 So.2d 434 (La.,1973). The father’s right to recover against a third party as his son’s survivor is, of course, not affected by negligence on the part of the mother.

If Jennifer Lewis were guilty of negligence which was a concurrent cause in fact of her son’s injuries, he could not sue her because of LSA-R.S. 9:571. This procedural bar would not destroy the cause of action. Walker v. Milton, 263 La. 555, 268 So.2d 654 (1972). If such a cause of action existed, it passed to his surviving parents. Jennifer Lewis cannot recover as her son’s survivor against her own insurer for any damages attributable to her fault. Dumas v. United States Fidelity & Guaranty Company, 241 La. 1096, 134 So.2d 45 (1961).

There is no sound reason for imputing any negligence by the mother to the father. The obligations of the civil contract of marriage do not include liability for a spouse’s torts. Adams v. Golson, 187 La. 363, 174 So. 876 (1937). Vitale v. Checker Cab Co., 166 La. 527, 117 So. 579 (1928) held that a husband’s negligence is not imputed to the wife to prevent recovery for her injuries caused by that negligence but does bar her action for his wrongful death. Monge v. New Orleans Ry. & Light Co., 145 La. 435, 82 So. 397 (1919); Clair v. Gaudet, 144 So.2d 638 (La.App. 4 Cir. 1962), and other jurisprudence hold that the wife’s negligence is imputed to the husband. These cases, reluctantly followed in Carter v. Salter, supra, are contrary to the general rule that negligence can be imputed to an innocent party only when that party is legally responsible for the torts of the negligent party. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963).

Imputing the negligence of the wife to the husband but not the husband’s to the wife has been justified on the ground that the wife’s damages were separate property and the husband’s community property. Vitale v. Checker Cab Co., supra. Thus, a wrongdoing wife might benefit from a husband’s recovery on behalf of the community. Since any enrichment of the community would have been under the husband's control, direct benefit to the wife is questionable. This is a tenuous basis on which to defeat an otherwise valid action. The jurisprudential distinction is an unreasonable sex based discrimination which violates the Louisiana Constitution of 1974. Every person is guaranteed law and justice, administered without partiality, for injury to him or her. Article 1, Section 22, Louisiana Constitution of 1974. Imputing the negligence of the wife to the husband, but not vice versa, is a form of partiality which is unjustified by statute and cannot be supported. An innocent party should not be barred from recovery because of an irrelevant legal relationship with a negligent party. Negligence of either spouse cannot be imputed to the other merely because of the marital relationship. Gaspard v. Lemmaire, supra. It is necessary to overrule Monge v. New Orleans Ry. & Light Co., supra; Carter v. Salter, supra; and other jurisprudence to the contrary.

ACTION FOR WRONGFUL DEATH:

The parents’ right to recover damages for the loss of their son differs from the survival action in that any contributory negligence by either bars recovery by that individual. Westerfield v. Levis, supra. However, again, any negligence by the wife would not be imputed to the husband. There is no allegation of negligence on the part of the father. If the mother were negligent, her action for her son’s wrongful death is barred by that negligence. The father’s right to recover is unaffected.

For the foregoing reasons, the partial summary judgment in favor of Fireman’s Fund Insurance Company is reversed and the matter is remanded for trial on the merits.

REVERSED AND REMANDED.

MARCUS, J., dissents and assigns reasons.

LEMMON, J., concurs.

MARCUS, Justice

(dissenting).

I see no compelling reason to overrule a long line of jurisprudence holding that the negligence of his wife is imputed to the husband. La.Civ.Code art. 2344 (Acts 1979, No. 709, § 1, eff. Jan. 1,1980) now provides that damages due to personal injuries sustained during the existence of the community by a spouse are separate property. Accordingly, it will no longer be necessary to impute the negligence of the wife to the husband to prevent the wife from benefiting from enrichment of the community.

Moreover, I do not consider it proper for the court to address the constitutionality of the rule of law imputing the wife’s negligence to the husband but not the husband’s negligence to the wife because this issue was not pleaded or raised in the trial court. A litigant who fails to plead the unconstitutionality of a statute in the trial court cannot raise the constitutional issue in the appellate court. Johnson v. Welsh, 334 So.2d 395 (La.1976); Summerell v. Philips, 258 La. 587, 247 So.2d 542 (1971).

Accordingly, I respectfully dissent.

      . Article 1 § 22, Louisiana Constitution of 1974 provides:
      “All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.”

      . Reversal of these cases, which rely on an “antique rule”, brings Louisiana in line with the overwhelming majority of other jurisdictions. Prosser Torts 4th Ed., p. 914.


author: LEAR, Justice Ad Hoc.

text:
    STATE of Louisiana v. Floyd FALKINS.
    No. 80-K-2040.
    Supreme Court of Louisiana.
    March 2, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Sheila C. Myers,. Asst. Dist. Attys., for plaintiff-relator.
    Paul Katz, Orleans Indigent Defender Program, New Orleans, for defendant-respondent.
   LEAR, Justice Ad Hoc.

Floyd Falkins was tried by jury, convicted of armed robbery, La.R.S. 14:64, and sentenced to imprisonment at hard labor for thirty years. His conviction was overturned by this court on March 6, 1978, because of a violation of the doctrine of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and U. S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976).

The state attempted to obtain review, first, by application for rehearing which was denied and, secondly, by obtaining a stay of mandate and seeking review by the United States Supreme Court. That court denied the state’s application for writs of certiorari on October 2,1978. Prior thereto, this court had entered an order staying the mandate for a period of ninety (90) days from April 6, 1978, pending disposition of the writ before the United States Supreme Court. The mandate, therefore, issued on or about August 7, 1978. The one year prescriptive period for new trial commenced to run or about August 7, 1978.

There ensued the scheduling of a number of trial dates: (1) March 14,1979, continued to April 16,1979, on motion of the state; (2) April 16, 1979, continued to April 26, 1979, by order of the trial court; (3) there is no entry for April 26, 1979; (4) May 24, 1979, on motion of defendant, trial continued without date; (5) March 21, 1980, trial specially fixed for May 13, 1980; (6) May 13, 1980, motion to quash based on prescription filed by defendant and subsequently granted by the court.

The trial court did not render written reasons for its decision, but in an apparent reliance on Article 582 of the Code of Criminal Procedure, granted the motion because more than one (1) year had elapsed since the new trial was granted.

Article 582 must, however, be read and applied together with Articles 578, 580, 581 and 583. State v. Alfred, 337 So.2d 1049 (1976).

Article 580 is quite clear: “When a defendant files a motion to quash or other preliminary plea, the running of the periods ... shall be suspended .. .. ” The record reveals no less than two preliminary pleas: (1) application for bill of particulars, March 15, 1979, March 30, 1979, and (2) motion to quash, May 13, 1980. Defendant also filed a motion for continuance on May 24, 1979, which was granted and all proceedings passed without date.

This court has more recently confronted this very issue in State v. Hamilton, 369 So.2d 1299 (La.1979). There the defendant was charged with the commission of a misdemeanor by bill of information. The defendant filed a motion to quash the bill on September 19, 1978, alleging that the bill had been filed on September 7, 1978, and that more than a year had elapsed. The records of court, however, revealed that in fact the bill of information had been filed on September 23,1977. A unanimous court held that the filing of such a motion constituted a preliminary plea and, therefore, “... suspended the running of the period of limitations until the ruling of the court thereon but in no case shall the state have less than one year after the ruling to commence trial.” State v. Hamilton, supra; see also State v. Cranmer, 306 So.2d 698 (1975). Accordingly, the trial judge erred in granting the motion to quash the information. We must reverse.

DECREE

The ruling of the trial judge sustaining the motion to quash is reversed and set aside; the case is remanded to the district court for further proceedings.

       Judges Covington, Chiasson and Lear of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Calogero, Marcus, Dennis and Blanche.

      . Art. 582. Time limitations; effect of new trial
      When a defendant obtains a new trial or there is a mistrial, the state must commence the second trial within one year from the date the new trial is granted, or the mistrial is ordered, or within the period established by Article 578, whichever is longer.

      . Art. 578. General rule
      Except as otherwise provided in this Chapter, no trial shall be commenced:
      (1) In capital cases after three years from the date of institution of the prosecution;
      (2) In other felony cases after two years from the date of institution of the prosecution; and
      (3) In misdemeanor cases after one year from the date of institution of the prosecution.
      The offense charged shall determine the applicable limitation.
      Art. 579. Interruption of time limitation
      The period of limitation established by Article 578 shall be interrupted if:
      (1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
      (2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state.
      The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.
      Art. 580. Suspension of time limitations
      When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling to commence the trial.
      Art. 581. Expiration of limitations; motion to quash; effect
      Upon the expiration of the limitations established by this Chapter, the court shall, upon motion of the defendant, dismiss the indictment. This right of dismissal is waived unless the motion to quash is made prior to trial.
      If the indictment is dismissed under this article, there shall be no further prosecution against the defendant for the same or a lesser offense based on the same facts.
      Art. 583. Interruption of time limitation where new trial
      The period of limitation established by Article 582 shall be interrupted by any of the causes stated in Article 579. Where such interruption occurs, the state must commence the new trial within one year from the date the cause of interruption no longer exists.


author: MARCUS, Justice . COLE, Justice Ad Hoc, LEMMON, Justice,

text:
    STATE of Louisiana v. Robert E. FORSHEE.
    No. 80-KA-2075.
    Supreme Court of Louisiana.
    March 2, 1981.
    William J. Guste. Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., E. L. Edwards, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Claude R. Sledge, Public Defender, for defendant-appellant.
   MARCUS, Justice .

Robert Erbie Forshee and Tyrone Ellis Cutrer were jointly charged by bill of information with separate counts of (1) possession with intent to distribute marijuana and (2) possession with intent to distribute pre-ludin in violation of La.R.S. 40:967. Both offenses were alleged to have occurred on the same day (July 16, 1979). At arraignment defendants entered pleas of not guilty. Thereafter, Cutrer’s motion for severance was granted and Forshee withdrew his former plea of not guilty of possession with intent to distribute preludin and entered a plea of guilty to that count of the charge. The state recommended that the court accept the plea and that the sentence be “no more than five years.” The court accepted the guilty plea after determining that it was made voluntarily and with an understanding of the nature of the charge. After a presentence investigation and sentencing hearing, the trial judge sentenced defendant to serve three years at hard labor and to pay a fine of $7,500, or in default thereof, to serve an additional year at hard labor. On appeal, defendant relies on two assignments of error for reversal of his sentence.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Defendant contends the trial judge erred in failing to follow the sentencing guidelines set forth in La.Code Crim.P. art. 894.1 and in imposing an excessive sentence.

The record reflects that on the evening of July 16, 1979, defendant and Cutrer, his distant cousin, offered to sell one preludin pill to an informer. Upon receiving this information, a deputy sheriff went to the scene and found Cutrer and defendant sitting in a van in a church parking lot in Many, Louisiana. Defendant was sitting in the driver’s seat. He advised defendant that he was suspected of having in his possession a controlled dangerous substance and asked for permission to search the vehicle. Defendant gave his consent and after a search was made, the officers found one plastic prescription bottle with the name removed containing what was later confirmed to be nineteen preludin pills and a two-ounce lid of marijuana on the front center console of the vehicle. Defendant and his companion were arrested and charged with the offense set forth above.

At the sentencing hearing, Shelton Brown, the probation officer who conducted the presentence investigation, Hauley E. Forshee, defendant’s father, and defendant testified. Their testimony revealed that defendant was 22 years of age and resided in Belle Chasse, Louisiana. He graduated from high school at age 18 and was considered an average student with no evidence of disciplinary problems. After graduation, defendant was a truck driver for a local company for about a year. He attended Alabama Aviation Technical College in Ozark, Alabama, as an aircraft mechanic student for a year and then returned to Belle Chasse where he worked first as a bartender and later as a truck driver. From October 1979 until the time of the hearing, defendant had been a working student at the Pan-Air Corporation at the Lakefront Airport in Belle Chasse, training as an assistant aircraft mechanic. He had three more months to complete his training and become certified.

Defendant had no prior juvenile or adult record for arrests and/or convictions except for certain traffic violations. Probation officer Brown stated that he found defendant to be very cooperative upon questioning. He concluded that defendant would make a good probation risk given his educational background, employment history and lack of a criminal record. Defendant’s father described defendant as an “ideal son” who did not associate with criminal types and whose involvement with drugs was in his opinion a one-time occurrence. Defendant himself testified that on the night he was arrested, he had been drinking at a party and had “gotten out of character.” He stated that a girlfriend had left the bottle of pills in his van. He further stated that he realized the seriousness of the offense, and if placed on probation, he would not engage in further criminal activity.

The trial judge, following the sentencing guidelines set forth in La.Code Crim.P. art. 894.1 and articulating for the record the considerations taken into account and the factual basis therefor, concluded that the seriousness of the offense and the undue risk that, during a probationary period defendant would commit another crime, warranted the imposition of imprisonment. He considered defendant’s testimony to the effect that the drugs belonged to someone else to imply that defendant had not yet come to grips with his guilt. The trial judge also found defendant’s employment record unstable. Moreover, he was of the opinion that defendant’s conduct of distributing “mindboggling and bending” drugs both caused and threatened serious harm to others. Although he conceded that defendant had no prior record and that incarceration would impose an undue hardship since defendant would most likely lose his job, the trial judge nonetheless considered a sentence of imprisonment to be appropriate.

La.Const. Art. 1, § 20 prohibits the imposition by law of excessive punishment. Accordingly, we have held that imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment that is enforceable by this court on appellate review. The trial judge’s reasons in imposing sentence, as required by La.Code Crim.P. art. 894.1, are an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive. State v. Jacobs, 383 So.2d 342 (La.1980); State v. Spencer, 374 So.2d 1195 (La.1979); State v. Gist, 369 So.2d 1339 (La.1979); State v. Sepulvado, 367 So.2d 762 (La.1979). Moreover, the trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of an abuse of his discretion. State v. Jacobs, supra; State v. Spencer, supra; State v. Sepulvado, supra.

Our review of the record convinces us that the sentence imposed in the instant case is excessive. Although the trial judge complied with the sentencing guidelines of art. 894.1 by stating for the record his reasons for imposing sentence, we nonetheless find that he erred in concluding that based upon the presentence report and the testimony adduced at the sentencing hearing, the sentence imposed was warranted. First, we feel that the trial judge erred in concluding that there was an “undue risk” that defendant would commit another crime were his sentence suspended and defendant placed on probation. Given the fact that this was his first criminal offense and considering the testimony of the witnesses describing defendant as a law-abiding citizen lacking a propensity to behave in a criminal manner or associate with criminal types, we find no factual basis in the record for concluding that defendant would be a poor probation risk. Moreover, we consider the trial judge erred in reasoning that defendant had not yet come to grips with his guilt because he contended that the pills found in his possession belonged to someone else. To the contrary, we think defendant’s testimony clearly reflects that he was aware of his wrong-doing and would not engage in such behavior in the future. His explanation of the ownership of the pills was not intended to shift the blame for his conduct but rather to explain how they came into his possession. Finally, we believe that the trial judge erred in finding that defendant had an unstable employment record. Considering the fact that defendant was only 22 years of age and had been working both during and between periods of attending technical college, we consider defendant’s employment record similar to that of most young men of his age who, in order to financially support themselves, combine employment and the pursuit of higher education.

In addition, while the penalty provision of the violated statute permits a fine up to $15,000, we are inclined to believe that a fine of $7,500 under the circumstances of this case is also excessive.

In sum, we conclude that the trial judge abused his discretion in imposing the sentence in the instant case. Based on the foregoing reasons, we are convinced that the sentence imposed is excessive. Accordingly, we must vacate defendant’s sentence and remand the case to the trial court for resentencing.

DECREE

For the reasons assigned, the conviction is affirmed but the sentence imposed is vacated and set aside, and the case is remanded to the district court for resentencing in accordance with the views expressed herein.

LEMMON, J., concurs and assigns reasons.

COLE, Justice Ad Hoc,

respectfully dissenting.

The sentence being well within statutory limits, does not demonstrate an abuse of the wide discretion vested in the trial judge, nor do I consider the punishment as excessive within the contemplation of La.Const. Art. 1, Section 20.

LEMMON, Justice,

concurring.

The articulation by the trial judge revealed that he reached unfounded conclusions from the facts considered in imposing sentence. Since the sentence was apparently severe, the unfounded conclusions must be pointed out and the case remanded for resentencing in the light of appropriate considerations.

       Judges Frederick S. Ellis, Luther F. Cole and J. Louis Watkins, Jr. of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Watson and Lemmon.

      . According to the presentence investigation report, it was learned from the district attorney’s office that Cutrer would not be prosecuted, as Forshee was “taking the blame for the material being in his vehicle.”

      . La.Code Crim.P. art. 894.1 provides:
      A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
      (1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
      (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
      (3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
      B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
      (1) The defendant’s criminal conduct neither caused nor threatened serious harm;
      (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
      (3) The defendant acted under strong provocation;
      (4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
      (5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
      (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      (8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      (10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      C.The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.

      . Although defendant resides in Belle Chasse, Louisiana, he was staying in his family’s camp near Many, Louisiana, while on vacation.

      . Preludin is an amphetamine prescribed by medical doctors for weight loss.


text:
    STATE of Louisiana v. Sharon P. McCATHERN And Daniel F. McCathern.
    No. 80-K-2102.
    Supreme Court of Louisiana.
    March 2, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Leon A. Cannizzaro, Jr., Louise Korns, Asst. Dist. Attys., for plaintiff-relator.
    Bernard Jack Usprich, New Orleans, for defendants-respondents.
   CHIASSON, Justice Ad Hoc.

Defendants, Sharon P. McCathern and Daniel F. McCathern, were charged by bill of information on July 11, 1980 with three counts of possession with intent to distribute, a controlled dangerous substance, to wit: cocaine, methaqualone and marijuana, violations of La.R.S. 40:967. On August 19, 1980, defendants filed a Motion to Suppress for use as evidence the drugs seized from them. After a hearing, the trial court granted defendants’ motion on September 3, 1980. This Court has now granted the state’s application to review that judgment.

At the hearing on defendants’ motion to suppress, the following facts were adduced. On June 23, 1980, New Orleans Police Officer Harry O’Neal executed a search warrant at 4217 St. Charles Avenue. At that address the officers seized a quantity of cocaine, methaqualone and marijuana. The officer testified that the search had been conducted pursuant to a warrant that had been secured the day of the search. The officer had also prepared an affidavit in connection with the search warrant. The reasons and facts for the request of the search warrant were listed in the affidavit as follows:

“1. On Monday 6-23-80 at about 5:00 PM Narcotics Officer Harry O’Neal talked with a reliable confidential informant (Cl) whose information in the past has been instrumental in the arrest of narcotics violators. The Cl informed the officer that within 72 hours of talking with him, he had been inside the residence at 4217 St. Charles and while there observed the occupant, DANNY MCKAY, sell amounts of methaqualone (quaaludes) to several people who came to the door. The Cl also informed the officers that MCKAYS apartment was down the alley as you face the building on the right hand side, and the door had a canopy over it. The Cl also overheard a conversation between MCKAY and another subject identified as ALFRED that ALFRED would be over at the residence to cop some quaaludes between 8-8:30 PM. The Cl overheard MCKAY tell the subject ALFRED that it would be $1000 for 500. The Cl then left the apartment and contacted the officer.
“2.A) Based on the Cl’s information, Officer O’Neal, as well as JP Narcotics Agents Mike Kraszb and John Nelson established a surveillance of 4217 St. Charles beginning at about 7:50 PM. At about 8:05 PM the officers observed a white four door Olds, occupied by a white male pull into the driveway at 4217 St. Charles. The officers observed that the subject exited the car, proceeded to the door on the right hand side with a canopy over it and knocked. A few seconds later the occupant opened the door allowing the subject from the Olds to enter. The subject from the Olds was observed to enter the residence empty handed. The license plate of the car was observed to be 421B155, which after checking thru NCIC was learned to be registered to 1964 white Olds, a ALFRED NEITO.
B) At 8:50 PM the officers observed a blue/white Ford Granada, bearing Virginia plates LCT8_pull in front of the Olds, blocking it in. The occupant of the car, observed to be a WF with dark hair carrying a white purse, went to the side door with the canopy over it, knocked and was allowed entry.
C) At 9:05 PM the officers observed a blue/white Ford Mustang II, bearing La. License 740B12— pull in front of the residence a door way down and park. The occupants, observed to be a WM with blonde shoulder length curly hair carrying a red shoulder bag and a WF with dark hair carrying a large dark colored purse. Both subjects went to the side door with the canopy, knocked and be allowed entry.
D) At 9:15 PM the officers observed the WM from the Olds and the WF from the Granada leave the residence and talk a few seconds in front of the Olds. The female then drove off on St. Charles toward Napoleon, and as she walked away from the driver of the Olds, the officers observed that he was now carrying a red and white colored bag, which as the officers watched threw in the back seat. As the subject in the Olds pulled off, the officers observed the occupants of the Mustang leave also, still carrying the large purses.
E) As the Olds left, taking a turn on Gen. Pershing and heading downtown on St. Charles, the officers began to follow the car, with the intent to stop the car and arrest the driver, as based on the Cl’s information and the car registration, the officers felt that the driver of the car was ALFRED and that he had purchased 500 quaaludes. The officers followed the Olds to the 1600 blk. of St. Charles, where by means of the blue light and siren, the officers were successful in pulling over the Olds. As the officers approached the car, and had the driver get out, Off. O’Neal advised the subject that he was under arrest for narcotics and orally advised of his rights. Officer O’Neal asked the driver who he was and the driver replied ALFRED NEITO. Off. O’Neal then looked in the back seat and observed the red and white colored bag and observed that it contained numerous white tablets. Off. O’Neal retrieved the bag and found it to contain approximately 500 quaalude tablets, packaged in 100 tablet lots in clear plastic bags. The arrest of NEITO is reported under item F-25519-80.
“3. Based on the Cl’s information, the officers’ observations and the arrest of NEITO in circumstances outlined by the Cl, it is the affiants belief that contraband controlled dangerous substances are being secreted and sold from within the residence of 4217 St. Charles, the apartment having a doorway on the right hand side of the bldg, with a canopy over it, respectfully request that this warrant be signed.”

At the motion to suppress, Officer O’Neal was questioned about the reliability of the informant. When asked whether information supplied by him had led to any convictions, the witness could only respond that there were presently two defendants in court based on information from this informant. Also the witness testified that the informant had said that he was in the residence of 4217 St. Charles Avenue, and had overheard the alleged drug sale planned for that day.

As recently enunciated by this Court in State v. Wichers, 392 So.2d 419 (La.1980):

“Constitutional provisions insure a person from unreasonable search and seizure of his house, papers and effects. No such search or seizure shall be made except upon warrant issued upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. U.S.Const. amend. IV; La.Const. art. 1 § 5. Conformably, our Code of Criminal Procedure in art. 162 provides in pertinent part:
‘A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.’ ”

We have held that probable cause exists when the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been committed. State v. Richards, 357 So.2d 1128 (La.1978); State v. Smith, 350 So.2d 1178 (La.1977); State v. Williams, 338 So.2d 1365 (La.1976); State v. Sierra, 338 So.2d 609 (La.1976); State v. Hightower, 272 So.2d 363 (La.1973). The judicial officer must be supplied with enough information to support an independent judgment that probable cause exists for the issuance of a warrant. Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); State v. Richards, supra; State v. Smith, supra; State v. Williams, supra; State v. Sierra, supra; State v. Holmes, 254 La. 501, 225 So.2d 1 (1969).

In the instant case, the affidavit was based both on information learned from a confidential informant and from the personal observations of the affiant/police officer. Further, the affidavit contains the assertion that information supplied by the defendant in the past has been reliable and has led to the arrest of narcotics violators. This contention of past reliability is based on the decision in State v. Gilbert, 354 So.2d 508 (La.1978) and State v. Smith, supra. Further, this Court has determined that in evaluating an informant’s reliability, “no requirement exists ... that the arrests must have resulted in convictions.” State v. Roach, 322 So.2d 222 (La.1975). Prior convictions is but one means of establishing the reliability of a confidential informant. State v. Tassin, 343 So.2d 681 (La.1976).

The affidavit also contains information establishing the credibility of the informant stating that, less than seventy-two hours before, he had been inside the residence at 4217 St. Charles Avenue, had observed illegal drug transactions, and had overheard a conversation in which a sale was planned the night of the search. Additionally, the affidavit contains a lengthy account of the police observations and corroborations of the informant’s tip, especially in regard to the alleged buyer Alfred. The state thus asserts that since the affiant articulated a basis for the belief that the informant’s tip was both credible and reliable and personally corroborated that information, the affidavit adequately established probable cause to justify the issuing of a warrant.

At the hearing on the motion to suppress, the defendants urged that the portion of the warrant that dealt with the arrest of Alfred Nieto and the search and seizure of the red and white plastic bag should be deleted in ascertaining probable cause. Since the trial judge did not articulate any reasons for granting defendants’ motion, it cannot be determined whether the excision of that portion of the affidavit was its fatal defect.

This matter is quickly resolved in light of our decision this day in the case of State v. Nieto, 395 So.2d 738 (La.1981), wherein we held that the arrest and the seizure were both legal. Since these actions were legal, it was proper to consider these allegations to determine if probable cause existed for issuance of the search warrant. We deem that this information, combined with the information obtained from the informant who was personally inside the dwelling, and the other allegations contained in the affidavit for a search warrant, were sufficient to establish probable cause for the issuance of the search warrant. The trial court erred in holding otherwise.

For the reasons assigned, the ruling of the trial court granting the motion to suppress is reversed and set aside, and the case is remanded to the trial court for proceedings in accordance with the law and in a manner not inconsistent with this opinion.

REVERSED AND REMANDED.

       Judges Covington, Chiasson and Lear of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Associate Justices Calogero, Marcus, Dennis and Blanche.


author:
      MARCUS, Justice.

      CHIASSON, Justice Ad Hoc,

text:
    STATE of Louisiana v. Clarence E. FOURNIER.
    No. 80-KA-2118.
    Supreme Court of Louisiana.
    March 2, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves and Robert B. Evans, Asst. Dist. Attys., for plaintiff-appellee.
    Jack Quarles, Jr., Indigent Defender Program, New Orleans, for defendant-appellant.
   MARCUS, Justice.

Clarence E. Fournier was charged by bill of information with simple burglary in violation of La.R.S. 14:62. After trial by jury, defendant was found guilty as charged and sentenced to serve nine years at hard labor with credit given for time served. The court expressly directed that the sentence be served consecutively with any sentence imposed on defendant. In this out-of-time appeal, defendant relies on thirteen assignments of error for reversal of his conviction and sentence. Because we find merit in the ninth assigned error, we need not consider the remaining twelve.

Prior to final argument, the state filed a request for a special charge. After a discussion off the record, defendant objected to the special charge. While charging the jury, the trial judge included the special charge requested by the state:

[I]f you find that a simple burglary has been committed as charged, and that a theft was committed in connection with said crime, and if you find that property taken from the building at the time of the burglary was shortly afterward found in possession of the accused, then you are authorized to draw a presumption of guilt of the burglary from such possession. This proposition of law is very well set forth, as the law presumes guilt from the possession of property recently stolen and not accounted for.

After the jury was retired, defendant once again objected to this special charge. Relying on State v. Shelby, 215 La. 637, 41 So.2d 458 (1949), the trial judge overruled the objection. Although the jury had already been charged and retired at the time of defendant’s second objection, the trial judge noted that defendant’s objection was timely based on the procedure followed “by consent in order to save time.” Defendant contends that the above special jury charge by the trial judge constituted reversible error. We agree.

Under La.R.S. 15:432, there is a presumption “that the person in the unexplained possession of property recently stolen is the thief.. . . ” Prior to our decision in State v. Searle, 339 So.2d 1194 (La.1976) (on rehearing), this court had judicially extended this statutory presumption to apply to the crime of simple burglary. State v. McQueen, 278 So.2d 114 (La.1973); State v. Shelby, supra; State v. Pace, 183 La. 838, 165 So. 6 (1935). However, in Searle, where the jury was charged in a case involving a charge of simple burglary that a defendant found in the unexplained possession of property recently stolen at the time of a burglary was presumed to have committed the burglary, we held that the judicial extension of the statutory presumption to the crime of simple burglary was unconstitutional. In State v. Spears, 363 So.2d 479 (La.1978), we held that the rule of Searle was applicable to those cases not yet final prior to that decision where timely objection has been made. See also State v. Bergeron, 371 So.2d 1309 (La.1979) (on rehearing).

The instant case was tried on May 14 and 15, 1973, prior to our decision in Searle. However, this case is now before us as an out-of-time appeal and therefore defendant’s conviction was not final prior to our decision in Searle. The record clearly reflects that defendant timely asserted his objection to the special jury charge. Hence, defendant’s conviction and sentence must be reversed.

DECREE

For the reasons assigned, the conviction and sentence are reversed and the case is remanded to the district court for further proceedings.

CHIASSON, J. ad hoc, dissents for reasons assigned.

COVINGTON, J. ad hoc, dissents for reasons assigned by CHIASSON, J. ad hoc.

CHIASSON, Justice Ad Hoc,

dissenting.

I cannot subscribe to the conclusion that an out-of-time appeal can affect the finality of the trial court’s judgment. Appeals, even timely ones, can only be taken from final judgments. La.C.Cr.P. Art. 912; State v. London, 316 So.2d 743 (La.1975). Failure to timely appeal within the delay provided for in La.C.Cr.P. Art. 914 renders the judgment of the trial court final. State v. Delatte, 372 So.2d 1200 (La.1979).

The judgment in this case was therefore final when the Searle and Spears cases (cited in majority opinion) were decided. [Compare State v. Veazey, 337 So.2d 1163 (La.1976), where State’s appeal was dismissed because of an untimely appeal.]

       Judges Grover L. Covington, Remy Chiasson and Elmo E. Lear of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Calogero, Marcus, Dennis and Blanche.

      . La.C.Cr.P. Art. 912 provides in part:
      “A. Only a final judgment or ruling is ap-pealable.”

      . La.C.Cr.P. Art. 914 provides:
      “A motion for an appeal may be made orally in open court or by filing a written motion with the clerk. The motion must be made no later than fifteen days after the rendition of the judgment or ruling from which the appeal is taken. The motion shall be entered in the minutes of the court.”