text:
    INTERNATIONAL DERRICK & EQUIPMENT CO. v. STOVALL.
    No. 7291.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 21, 1949.
    C. B. Prothro and Clifton F. Davis, both of Shreveport, for appellant.
    Lee & Emery, of Shreveport, for appel-lee.
   TALIAFERRO, Judge.

Plaintiff sued on open account, made up of charges for the sale price of oil field fittings, supplies and equipment, during the months of July and August, 1947, amounting to $329.05. It is alleged that defendant is engaged in the business of producing oil; that at the time said sales were made he owned producing oil wells on two leases covering lands in Bossier Parish, Louisiana; that when said account arose and for some time prior thereto, defendant had in his employ one G. A. Oswald, whose duties “consisted of taking care of and supervising the operation and production from said leases, and particularly the maintenance of the machinery and equipment” necessary to procure oil from said wells; that the fittings, equipment, etc., were purchased by Oswald, as defendant’s agent, were delivered to Oswald, and that he made deliveries thereof to the lease sites; and that the same were used in the maintenance and operation of machinery employed to procure production.

In the alternative, .plaintiff alleged that should it be found and held that said Oswald was without express authority to make the purchases on defendant’s account, ■that defendant is now estopped to make denial thereof because invoice covering each purchase was promptly mailed to and received by him and that at no time, while Oswald was in his employ did he repudiate or protest Oswald’s authority to thus act for him and on his behalf.

Defendant denies liability for any part of the account sued on. He admits that for the months of July and August, 1947, he did have said Oswald in his employ on the mentioned leases but denies that he was authorized to commit defendant to liability for purchases of the kind and character herein described. He also denied that the purchased articles were used in the maintenance and operation of the leases, and. avers that when he became aware that plaintiff was sending him the mentioned invoices he immediately notified plaintiff that Oswald was without authority to purchase the merchandise described therein and have same charged to him.

Plaintiff prevailed in the lower court and judgment was awarded it for the full amount of the account sued upon. Defendant appealed.

There is no dispute as respects delivery of the various articles of merchandise to Oswald, nor as to the reasonableness of the prices charged therefor. The implication that arises from defendant’s contentions and position is that the merchandise was, in whole or part, used by Oswald in the development of a mineral lease he acquired a brief time prior to leaving defendant’s employment.

Prior to July 2, 1947, defendant bad not arranged for a line of credit with plaintiff, whose sales department is located in Bossier City, across Red River from Shreveport, but he, and also Oswald for him, had made cash purchases from plaintiff. Defendant’s office was in Shreveport. Oswald testified that often when he would come to Shreveport to procure orders or cash from defendant to purchase needed merchandise to keep the wells producing at maximum capacity, he was unable to contact him as he was out of the office a great deal pursuing another line of business. Oswald further testified that he personally knew the personnel in plaintiff’s place of business, -and had, over many years, bought from them; that one or more of plaintiff’s salesmen requested him to do business with them and suggested that he apply for a line of credit for defendant, not exceeding $500, and that for convenience, at least, he did so; that in each instance when he made a purchase an invoice of the merchandise purchased would be made out by a salesman, showing the character of the articles purchased, price thereof, date of purchase, by whom purchased, and for whose account; that some of these invoices were promptly put into defendant’s hands while others were deposited in a box in the house ■occupied by Oswald and which was.on one of the leases. He further testified that immediately after arranging for said credit, he informed defendant thereof and received bis thanks. He also testified that all of the purchased merchandise was either used in the operation and maintenance of the wells or was on the lease when defendant discharged him on August 19, 1947.

Defendant’s testimony supports his answer. He admits receiving some of the mentioned invoices and says he immediately went to plaintiff’s sales department and informed the salesmen there and also plaintiff’s district manager, in his office in the City of Shreveport, that Oswald had no authority to make the purchases on his account, but he did not on either occasion definitely say he would not pay for them. We strongly incline to the belief that defendant did this only after Oswald was dismissed by him, .as plaintiff’s district manager and one of its salesmen testified that after Oswald was dismissed defendant informed them of this fact and told each of them to not sell to him any more merchandise for defendant's account. They each affirm that this was the first time defendant questioned Oswald’s right to purchase for his account.

It appears that defendant was du-' bious as to whether the merchandise, in whole or part, was purchased for use on his leases, and in an effort to enlighten himself thereon had check made by one of his employees named Faircloth. However, he did not produce Faircloth as a witness in his behalf. This man’s whereabouts, was known to defendant at the time of and prior to trial. He was in the state not over one hundred miles from Shreveport. An inference arises that had he been summoned and had given testimony in the case, it would not have been favorable to defendant’s cause.

It is definitely shown that some of the merchandise charged to defendant was brought to one of the leases by Oswald’s son, but not being of the grade desired, at Oswald’s request, it was soon thereafter picked up by one of plaintiff’s employees and the charge entry thereof on the invoice erased. Defendant was present when the merchandise was picked up and talked to the man who did so. Evidently he then became aware of the true facts of this transaction.

Defendant was engaged in the real estate business, in addition to oil production, and left largely to Oswald the operation and maintenance of eighteen producing wells he owned in Bossier Parish. He visited the leases only once or twice per week and then for brief period. Plaintiff’s salesmen knew Oswald’s business relationship with defendánt and knew the kind and character of merchandise that was required to maintain producing wells; not having received from defendant any protest as to Oswald’s authority to purchase for his account, prior to his discharge, they, naturally, continued to sell to him in due and regular course of business.

In regard to the suggestion advanced by defendant that some or all of the merchandise, the price of which is sued for, was diverted to wells or leases in which Oswald had a personal interest, it is pertinent to note that the drilling of an oil well on his lease began several days after he was discharged by defendant. The well was drilled under contract with another party. These facts, especially that of time, rather effectively repel -the suggestion above mentioned.

The outcome of this case turns upon questions of fact and the credibility of the witnesses who gave testimony in the case. The trial judge closely observed the progress of the trial and several times interrogated witnesses touching their knowledge of pertinent facts. We are of the opinion that he correctly resolved these questions in plaintiff’s favor; and, for the reasons herein given, the judgment frpm which appealed is affirmed with costs.


source: Caselaw Access Project

author: HARDY, Judge.

license: Public Domain

text:
    HARDIN v. YELLOW CAB CO. OF SHREVEPORT et al.
    No. 7277.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 21, 1949.
    Johnson & Kantrow, of Baton Rouge, and Irion & Switzer and Harry A. Johnson, Jr., all of Shreveport, for appellant.
    Blanchard, Goldstein, Walker & O’Quin, of Shreveport, for appellees.
   HARDY, Judge.

This is a suit for the recovery of damages both to the automobile and the person of plaintiff as the result of a collision between plaintiff’s Pontiac automobile, driven, by his 16-year old son, and a Chevrolet taxicab of defendant company, driven by Abraham B. Akins, one of its regular taxi drivers. After trial there was judgment rejecting plaintiff’s demands, from which, plaintiff appeals.

The accident occurred within the municipal limits of the Town of Bossier City ora Highway 71 at a point immediately in front of a night spot known as the Pelican Club, about 1:00 o’clock A.M. on August 9, 1946..

There were only two eyewitnesses to the-accident, young Hardin and Akins. At the time plaintiff was asleep on the front seat of his car, and, of course, was unable to testify as to any incidents actually bearing upon the accident.

Immediately prior to the collision both the taxicab, which was moving at a very slow rate of speed, and the Hardin car, which was being driven at a rate of some 50 to 60 miles per hour, were proceeding in the same direction, that is, north toward Shreveport. The driver of defendant’s taxicab testified that he slowed down at a point south of the Pelican Club, gave a stop signal, made an observation for following traffic in his two rear view mirrors, one inside and one outside the taxicab, signaled for a left turn, proceeded to turn across the highway toward the parking area adjacent thereto and immediately in front of the Pelican Club and was struck as his front wheels had passed some two feet over the center line.

Young Hardin testified that he sounded his horn at a distance of some 90 feet from the taxi, pulled to the left to pass, and that the taxi turned across the highway when the cars were only about 20 feet apart.

The driver of the taxicab testified that he heard no horn signal until an instant before the crash. Young Hardin testified that he observed no arm -signals made by the taxi driver.

Study of the record convinces us that both drivers were guilty of negligence and that such concurrent negligence was the proximate cause of the accident, which finding is in accord with the conclusions reached by the trial judge.

Unquestionably the driver of plaintiff’s car was guilty of negligence in driving at a speed of 50 to 60 miles per hour within the corporate limits of a municipality where the legal limit was fixed, according to the record, at 23 miles per hour. Mute evidence of the excessive speed and lack of control on the part of the driver of plaintiff’s car is shown by the fact that the car was brought to a stop, after sideswiping defendant’s taxicab, only after it had skidded some 175 feet, struck a telephone pole and rebounded several feet therefrom.

Further evidence of negligence on the part of the driver of plaintiff’s car is found in the fact that, according to his own testimony, he first sounded his horn signaling his intention to pass at a time when he was only 90 feet behind the taxicab, which meant that at a speed of 50 to 60 miles per hour there was approximately one second of time intervening between the sounding of the horn and the point at which he would have reached the taxicab.

We think the facts indicate that the sounding of the horn and the impact of the collision were almost simultaneous, leading to the conclusion that the horn was not sounded until the taxi driver actually began his turning movement.

Upon the principle established by our jurisprudence to the effect that a motorist is held to have seen what he could and should have seen, the drivers of both vehicles were negligent, the driver of plaintiff’s car by reason of his failure to observe the turning movement of the taxicab, and the driver of the latter vehicle by reason of his failure to observe the car approaching from the rear.

There are certain matters presented and argued in connection with the instant case concerning which we pretermit any discussion for the reason that the findings above set forth are sufficient to determine the matter.

We have considered the wealth of citations of authority provided in briefs of counsel for both parties, but in view of our conclusion that the facts established aré sufficient to serve as the basis for judgment upon the almost elementary legal principles briefly noted, we do not find it necessary to enter into a discussion of the authorities cited.

For the reasons assigned, the judgment appealed from is affirmed at appellant’s cost.


text:
    STROUD v. PREFERRED ACC. INS. CO. OF NEW YORK.
    No. 7296.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 21, 1949.
    Blanchard, Goldstein, Walker & O’Quin, of Shreveport, for appellant.
    Lunn & Trichel, of Shreveport, for ap-pellee.
   HARDY, Judge.

This is a suit for the recovery of damages to plaintiff’s automobile alleged to have resulted from a collision with a Ford pick-up truck owned and operated by one Leo C. Evans, defendant’s assured. After trial there was judgment in favor of plaintiff in the sum of $320.53, which was the stipulated cost of repairs to1 plaintiff’s automobile, from which judgment defendant has appealed.

The accident occurred about 7:30 or 8:00 o’clock on the evening of February 6, 1948, on Highway 71, a few miles north of Shreveport. At the time plaintiff was driving his Buick automobile south on the highway in a light, misting rain, at a speed of approximately 50 miles per hour, and was rapidly overtaking the Evans ‘truck, which plaintiff at -the time believed to be moving very slowly in the same direction or stopped on the righthand 'side of the road. The evidence developed on trial showed that at the time Evans was actually backing his truck along the road. Plaintiff testified that he sounded 'his horn at a distance of about 150 feet from the Evans truck and turned over to the left side of the road for the purpose ,of engaging in a passing maneuver, slowing down to a speed of some 35 miles per hour, and that when he was within about 35 or 40 feet of the truck he saw the left door of the truck open and the figure of a man begin, as he thought, to emerge therefrom. Feeling that a continuance of his passing movement would result in a serious accident to the man who appeared to be preparing to step out of the truck, plaintiff turned back to the right of the road and app'lied his brakes, which, however, did not take effect in time to prevent his car from crashing into the rear of the truck.

The testimony developed the fact that Evans, the driver of the truck, after turning into the highway from a road leading^ to his home and beginning his trip south in, the direction of Shreveport, decided to retrace his route a short distance for the purpose of placing a lantern on an automobile belonging to a friend which had broken down and been left parked on the side of the highway. In the attempt to accomplish this purpose Evans was backing his truck slowly along the highway and, perceiving the approach of plaintiff’s automobile, he opened the truck door to look back then closed the door to wait for plaintiff’s car. to pass, at which time his truck was struck from the rear.

For the most part there is no serious conflict as to the facts above related. The ■ only point of difference appears to be with respect to the distance between the cars at the time Evans opened the door of his truck.

The District Judge found that Evans’ action in opening the door of the truck at the time and under the' circumstances was an act of negligence and was the sole and proximate cause of the collision. With this, finding we are in complete agreement.

It is strenuously argued on behalf of defendant that the accident was due to plaintiff’s negligence and that, in the alternative, plaintiff was guilty of contributory negligence, precluding recovery, in driving at a reckless and excessive speed; failing to maintain a proper lookout; failing to have his car under control, and in failing to observe the Evans’ truck, and, finally, in recklessly driving his automobile into the truck. We do not find that any of the charges of contributory negligence are sustained by the record in this case, nor do we find that any negligence on the part of plaintiff has been established. While it is quite true, as matters developed, that plaintiff could have safely continued his passing movement, this does not exonerate defendant’s assured from his own negligence in the respect above noted. Plaintiff’s error in assuming that a person was preparing to step out of the truck was certainly the result of a natural conclusion, and his action in applying his brakes and turning back into the rear of the truck can be characterized as nothing worse than an error of judgment, to which there can be no imputation of negligence.

This case involves solely questions of fact, and, finding no manifest error in the conclusions of the learned Judge of the District Court, it follows that the judgment appealed from must be affirmed, and, accordingly, it 'is so ordered, at appellant’s cost.


author: DIXON, Justice. DENNIS, Justice, BLANCHE, Justice

text:
    STATE of Louisiana v. Eddie James SONNIER.
    No. 64125.
    Supreme Court of Louisiana.
    Sept. 4, 1979.
    Concurring Opinion March 12, 1980.

      William R. Collins, New Iberia, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Dracos D. Burke, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

During the evening of November 14,1977 the defendant, Eddie James Sonnier, and his older brother, Elmo Patrick Sonnier, left St. Martinville in Patrick’s car for an evening of rabbit hunting. After spending a considerable time riding through the countryside, the Sonnier brothers came across an automobile parked in a remote spot of St. Martin Parish at about 1:00 a. m. Patrick Sonnier suggested to defendant that they have some “fun,” then approached the car and showed the young couple inside, David LeBlanc and Loretta Borque, a badge which he had obtained when he worked as a security guard. Posing as a police officer, Patrick told David and Loretta that they were trespassing, and that he would have, to take them to the landowner to see if he wished to press charges against them. Patrick then ordered them from the automobile, confiscated their licenses and handcuffed them together. When his car would not start, Patrick told Eddie to drive LeBlanc’s car. Eddie refused, and Patrick took the wheel and began a long drive through remote areas familiar to him from his experience as a local cab driver, eventually stopping in a deserted oil field in Iberia Parish. The young couple was ordered from the car, and Patrick took Loretta into the woods, leaving David handcuffed to a tree guarded by Eddie.

After some time had passed, Eddie followed his brother into the forest and discovered that he had raped Miss Borque. The defendant spoke to the young woman, and she submitted to intercourse with him when defendant promised the couple’s safe release. After the second rape, Borque and LeBlanc were brought back toward the car. At that point, however, Patrick told his brother that they could not release David and Loretta because he (Patrick) would be returned to Angola if the couple spoke to the authorities. David and Loretta were then forced to lie down prone on the ground, ostensibly to have their picture taken. Patrick Sonnier then shot each three times in the head with a .22 caliber rifle while Eddie held a flashlight for Patrick.

The brothers then drove LeBlanc’s car to the scene of the abduction to pick up Patrick’s automobile. Since the car had a flat tire, they used a jack from the LeBlanc vehicle to change tires and kept the jack, which was later discovered and seized by the police. The brothers then destroyed the victims’ driver’s licenses and apparently took some money which had been in the victims’ possession before their abduction. The next day they buried the rifles in another remote area.

The defendant was arrested in early December, 1977. He confessed in some detail to the crime (although he at first failed to mention his raping Miss Borque) and led the authorities to the site where the rifles were buried. He was indicted on December 16, 1977 on two counts of first degree murder (R.S. 14:30). At trial the defendant was found guilty as charged on both counts. After the sentencing phase of the trial, the jury recommended that Sonnier be sentenced to death on both counts; the death penalty was imposed on October 18, 1978. On appeal the defendant relies on five assignments of error for reversal of his conviction and sentence.

Assignment of Error No. 1

In this assignment of error the defense contends that the trial judge was in error to permit Lieutenant Denison to testify concerning an inculpatory statement made by the defendant. The defense argues that such testimony was inadmissible on three grounds: the State’s failure, pursuant to a discovery motion and as required by C.Cr.P. 768, to provide accurate information concerning the statement; the statement’s nature as neither free nor voluntary; and the statement’s status as a fruit of a polygraph examination.

The record reveals that Lieutenant Deni-son of the Louisiana State Police was to administer a polygraph test to the defendant on December 5, 1977 in order to evaluate the truth of defendant’s earlier statements. As a preliminary step, Denison asked Sonnier if he knew why he was there. The defendant acknowledged that the test concerned the deaths of LeBlanc and Bor-que, and then went on to say that he had remained with David LeBlanc while his brother raped Loretta Borque, and that he later took his brother’s place and had intercourse with her. Sonnier told Denison that his brother at this time expressed his unwillingness to return to the penitentiary as a result of these acts. He also stated that the victims were then told to lie on the ground to have their picture taken and were shot by his brother while he held a flashlight for him. Denison then terminated the .interview and sent for other- police officers.

C.Cr.P. 768 requires the prosecution to give the defense pretrial written notice of its intention to introduce a confession or inculpatory statement. Article 716, governing aspects of discovery, provides in pertinent part:

“B. Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the existence, but not the contents, of any oral confession or statement of any nature, made by the defendant, which the district attorney intends to offer in evidence at the trial, with the information as to when, where and to whom such oral confession or statement was made.
C. Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the substance of any oral statement which the state intends to offer in evidence made by the defendant, whether before or after arrest, in response to interrogation by any person then known to the defendant to be a law enforcement officer.”

Although the defense contends that it received inadequate notice of this statement, the record indicates that the defense was informed of the statement’s existence, the date and to whom it was made, and its contents. Therefore, it is clear that the prosecution was not remiss in giving the defense adequate notice of the statement.

The defense’s second contention, that the statement was not free and voluntary, is equally unpersuasive. Although the prosecution shoulders the heavy burden of establishing beyond a reasonable doubt that an inculpatory statement was made freely and voluntarily, R.S. 15:451; State v. Hebert, 356 So.2d 991 (La.1978), the prosecution has met this burden through the testimony of Lieutenant Denison that Sonnier spoke willingly and appeared alert and fully aware of his actions. The defense’s allegations that Sonnier was fatigued and was not fully aware of what he was saying are not supported by the record.

The State must also prove that the defendant was advised of his constitutional rights if the confession or inculpatory statement was obtained during a custodial interrogation, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Clark, 340 So.2d 208 (La.1976), cert. denied, 430 U.S. 936, 97 S.Ct. 1563, 51 L.Ed.2d 782 (1977). The defense argues that Denison’s failure to read the defendant his Miranda rights prevents the State from introducing testimony concerning the statement at trial. However, it is clear from the record that, although the defendant was in custody, his statement was not a result of an interrogation; it was volunteered by Sonnier when the officer asked Sonnier if he knew why he was there. Denison (and Sonnier) knew that Sonnier had just given an inculpatory statement (which had been preceded by a full Miranda warning) and another statement, which was not introduced. Instead of a responsive answer, defendant volunteered the inculpatory statement. Under these circumstances, the failure of Denison to begin the interview with the Miranda warning did not outlaw the use of the statement.

The defense also urges that the statement was “part of the process” of the polygraph examination, and that it should be considered a result of the test and therefore be inadmissible. See State v. Catanese, 368 So.2d 975 (La.1979). However, the record belies any argument that the statement “resulted” from the examination because it was made before the test had begun. State v. Catanese, supra, and other related cases have expressed concern over the admissibility of polygraph test results, but nothing in that line of jurisprudence suggests that a statement like the instant one should be inadmissible.

This assignment of error is without merit.

Assignments of Error Nos. 2 and 5

By these assignments of error the defense argues that the verdict was contrary to the evidence introduced at trial, and, therefore, indicates that several jurors reneged on their promises made on voir dire that they would not impose the death penalty if the defendant had not killed anyone.

Review by this court is limited to a determination of the existence of some evidence of each essential element of the crime, State v. Banks, 362 So.2d 540 (La.1978); State v. Williams, 362 So.2d 530 (La.1978). A conviction will be set aside on appeal if there is no evidence of an essential element. State v. Madison, 345 So.2d 485 (La.1977). In the instant case, there is obviously sufficient evidence by which a reasonable jury could convict Sonnier on first degree murder charges. The defendant was present during the entire chain of events culminating in the shooting. He admitted the rape of Loretta Borque, and held the flashlight while his brother shot the young couple. Therefore, the jury’s verdict cannot be assailed as contrary to the evidence presented at trial.

The defense also argues that several veniremen gave dishonest answers when they indicated on voir dire that they would not impose the death penalty unless the believed that Eddie Sonnier had killed someone. The defense contends that these promises were obviously not kept since the jury recommended the death penalty despite the complete lack of evidence that the defendant had pulled the trigger. However, this argument is unpersuasive for two reasons. First, it is clear that there was indeed some evidence of each essential element of first degree murder since Sonnier could properly be considered a principal to the offense, R.S. 14:24, even if he did not perform the actual shooting. Second, it is questionable whether the statements made by the prospective jurors in the present case come within the prohibition established by C.Cr.P. 775(6). The article in question appears to contemplate factual misstatements such as those encountered in State v. Forbes, 348 So.2d 983 (La.1977), where the venireman failed to reveal his relationship to certain law enforcement officers. In the instant case, the allegedly dishonest responses concerned the jurors’ subjective appreciation of criminal responsibility, and cannot be considered “False statements of a juror on voir dire.” C.Cr.P. 775(6).

These assignments lack merit.

Assignment of Error No. 3

In this assignment of error, the defense contends that the trial court erred in sentencing the defendant to death because the death penalty constitutes a violation of the constitutional prohibition against cruel and unusual punishment.

In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the United States Supreme Court held that the death penalty was not per se unconstitutional. Decisions of this court have also indicated that the death penalty does not invariably violate constitutional guarantees. See State v. Myies (La.1979) (No. 63567); State v. English, 367 So.2d 815 (La.1979); State v. Payton, 361 So.2d 866 (La.1978).

This assignment is without merit.

Assignment of Error No. 4

By this assignment of error the defense alleges that the trial judge was in error to sentence the defendant to death since the sentence is clearly excessive.

The record indicates that the defendant was tried in compliance with Articles .905.1 through 905.9 of the Code of Criminal Procedure which provide for bifurcated trials in capital cases. At the conclusion of the sentencing hearing, the jury deliberated and returned with a unanimous recommendation that the defendant be sentenced to death. This sentence was later imposed by the trial judge.

This court reviews every death sentence to determine if it is excessive. La.Const., art. 1, § 20; C.Cr.P. 905.9. In reaching a decision on this issue, the court considers: whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factors; whether the evidence supports the jury’s finding of a statutory aggravating circumstance; and whether the death penalty is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Rules of the Supreme Court, Rule 28, § 1.

A. Aggravating Circumstances

In arguing for the death penalty, the State relied upon six aggravating circumstances; that the crime occurred during the perpetration of an aggravated kidnapping, an aggravated burglary, an armed robbery and an aggravated rape; that the crime occasioned a risk of death or great bodily harm to more than one person; and that the crime was committed in an especially heinous, atrocious, or cruel manner. The jury indicated that it found all of these aggravating circumstances to be present. We first must consider the aggravating circumstances which concern the commission of other crimes connected with the murder.

R.S. 14:60 defines aggravated burglary as “[t]he unauthorized entering of [any] movable where a person is present, with the intent to commit a felony or any theft therein, if the offender is armed with a dangerous weapon . . .” Armed robbery is defined as the “theft of anything of value from the person of another which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” R.S. 14:64. Evidence was introduced at trial that Patrick Sonnier was armed when he entered the car in which LeBlanc and Borque were parked with the intention of kidnapping them and that he forced them to surrender their wallets and driver’s licenses; their money was also apparently taken. Under the theory of principals embodied in R.S. 14:24, these actions are chargeable to the defendant, and therefore the jury could find the existence of armed robbery and aggravated burglary as aggravating circumstances.

There is also sufficient evidence to support the jury’s finding that the murder was committed during the perpetration, of an aggravated rape. Miss Borque was first forced to have sexual relations with Patrick Sonnier after he abducted her at gunpoint from her boyfriend’s car. There is every indication that any resistance on her part would have been met with threats of great and imminent harm which Patrick Sonnier could easily have accomplished, see R.S. 14:42(2). Even if Eddie Sonnier were not considered a principal to this crime, he admitted to Lieutenant Denison that he had intercourse with Loretta in exchange for a promise of safe release, evidence that Miss Borque considered her life in imminent jeopardy if she did not submit to her captor’s desires.

The bargain struck between Sonnier and Borque also lends support to the jury’s finding of aggravated kidnapping. Aggravated kidnapping is the forcible seizing and carrying away of any person with the intent to force the victim, or some other person, to give up anything of apparent value, or to grant any advantage to secure the person’s release. R.S. 14:44. This court has held that sexual gratification constitutes something of apparent value for purposes of this statute, State v. Dupre, 369 So.2d 1303 (La.1979). For this reason, it is clear that an aggravated kidnapping occurred.

A further consideration is whether the jury was correct to find that the instant murders involved the risk of death or great bodily harm to more than one person. Recently, in State v. Sonnier, 379 So.2d 1336 (La.1979), we held that the aggravating circumstance was present when two or more people are killed on one occasion for the purpose of eliminating surviving witnesses to the first murder. See also Proffitt v. Florida, 428 U.S. 242, 256, 96 S.Ct. 2960, 2968, 49 L.Ed.2d 913, 925 (1976); Alvord v. State, 322 So.2d 533, 540 (Fla. 1975). Therefore a basis exists in the evidence adduced at trial for finding this aggravating circumstance.

The jury also concluded that the offense was committed in an especially atrocious, heinous or cruel manner. The evidence introduced at trial provides a basis for this determination. As this court noted in State v. English, supra, this concept connotes “some idea of torture or the pitiless infliction of unnecessary pain on the victim.” 367 So.2d at 823. Moreover, the torture or unnecessary pain may be psychological as well as physical. State v. Sonnier, supra. In the instant case, the victims were abducted at gunpoint, handcuffed, and carried through the night to an unknown destination. David LeBlanc was handcuffed to a tree while first Patrick and then Eddie had intercourse with Loretta. Before being shot, the couple was forced to lie face down on the pretext of having their picture taken. The length of their ordeal and the indifference to their suffering which the record demonstrates are convincing that the crime could be characterized as cruel within the meaning assigned to the term by Article 905.4.

In light of these considerations, the jury’s finding that six aggravating circumstances existed was not incorrect.

B. Disproportionality to other sentences, considering the defendant and the crime

The defendant, Eddie James Sonnier, is a white male who was born on January 6, 1957, the son of Elmo Joseph and Gladys Sonnier. When he was a small child his parents separated and he spent several years living first with one parent and then with the other. His father died when Eddie was ten years old. Eddie told the sentence investigator that he had enjoyed living with both his parents and that he had passed a happy childhood. During either the sixth or seventh grade he quit school to work as a field hand in the cane fields.

Sonnier’s only previous brush with the law occurred under unusual circumstances. He was living with a fifteen year old girl at her house when she became pregnant. Eddie wanted to marry the girl, but her mother refused to sign the necessary papers. The girl indicated that she was willing to marry Eddie, but only to be free from her parents; she did not intend to live with the defendant. Eddie took a gun and went to her house to force an entry. The occupants of the house called the sheriff’s office, and when deputies arrived, they found Sonnier sitting outside weeping and shaking. He was charged with aggravated assault, but the charges were later reduced to simple assault and Sonnier was fined, given a suspended sentence, and placed on unsupervised probation for two years. After the incident, Sonnier wrote a series of threatening letters to himself. He reported the correspondence to the sheriff, but it was soon discovered that he was the author of the letters.

For almost three months before he was arrested, Eddie lived with his older brother Patrick. He cannot remember ever seeing in Patrick’s statement any reference to his (Eddie’s) having fired the first shot. Eddie expressed his concern over Loretta Borque’s fate, stating that he felt that he had broken his word to her since he had promised her safe release. He also stated that he had been unable to sleep or eat after the crime and that he had been on the verge of turning himself in on several occasions but had lacked the nerve to do so.

Four other first degree murder prosecutions have taken place in the Sixteenth Judicial District since January 1, 1976. The first involved the prosecution of James Lee Bullock, a small man who beat a much larger oil field worker with a billy club with such force that the club broke in three places. Bullock then took the victim’s boots, wallet and other belongings, and when the victim attempted to flee, he gouged him with a broken piece of the billy club. The defendant was found guilty of second degree murder and was sentenced to life imprisonment.

The prosecution of Frank Bennett arose out of a domestic quarrel in which Bennett was forced from his house and was compelled to spend the night in a washateria. The next day the defendant purchased a handgun, went to the house, fired the gun in the air, and began to pistol whip the victim. When she ran from the house, Bennett shot her, killing her instantly. Bennett told the arresting officers that he had checked the body to be certain that she was dead and that he would have fired again if she had been alive. Bennett was found guilty of first degree murder, and the jury recommended life imprisonment.

Marcel Knott was tried in St. Mary Parish after a change of venue from St. Martin Parish was ordered. The case grew out of a feud between two families, the Knotts and the Hayes, who had been close friends at one time but who had been divided by an inter-family dispute. One evening Knott and his wife were in Henderson where they backed into a parked car. Officers Hayes and Courville investigated the accident and were subjected to such verbal abuse by Mrs. Knott that Officer Hayes forced her into the patrol car. Knott then began shooting at the officers, killing Courville but only wounding Hayes. He was convicted of second degree murder and was sentenced to life imprisonment.

The fourth prosecution for first degree murder was that of Elmo Patrick Sonnier, the defendant’s brother, for the instant homicides. Patrick Sonnier was convicted of first degree murder and was sentenced to death. Both conviction and sentence were recently upheld by this court. State v. Sonnier, supra.

C. Passion, Prejudice or Other Arbitrary Factors

A final consideration in this court’s review of a death sentence is to determine whether the jury’s recommendation of death was influenced by passion, prejudice or other arbitrary factors.

Rule 28 of this court establishes a three step review for evaluating the appropriateness of a death sentence. The mere existence of a three step process indicates that a death sentence may be excessive even if sufficient ground exists for each aggravating circumstarice found by the jury. State v. Sonnier, supra, 379 So.2d at 1364 (Dennis, J. concurring and dissenting). Certainly an inference of arbitrariness would arise if a jury’s recommendation of death was inconsistent with sentences imposed in similar cases from the same jurisdiction. Rule 28, § 1(c). Another indication of arbitrariness' would be a jury’s recommendation of death in disregard of numerous and persuasive mitigating circumstances which clearly outweigh any aggravating circumstances found to be present. In the instant case, our review demonstrates that the sentence is excessive under either standard.

It is first noteworthy that of the four other first degree murder prosecutions in the Sixteenth Judicial District since 1976, three of the defendants received life imprisonment. Moreover, in all of- these cases there was no question that the defendant had intended to kill the victim. Bullock beat Joe Mincey with an eighteen inch billy club until it broke into three pieces and then gouged him with a broken piece of the club as he attempted to flee. The jury saved Bullock from the executioner by branding this intentional killing a second degree murder. Frank Bennett beat his victim with his handgun and chased her outside to shoot her. He told the police that he touched the corpse and would have shot again if there had been signs of life. The jury recommended life imprisonment for him. Marcel Knott shot two police officers in the course of duty, wounding one and killing the other instantly, but the jury nevertheless did not impose the death penalty. On the other hand, in the instant case there is a substantial question whether the defendant intended the deaths to occur. Bullock, Bennett and Knott all acted alone to dispatch their victims; Eddie Sonnier did not fire the fatal shots, and acted as his brother’s instrumentality in a scheme wholly concocted by Patrick Sonnier. The evidence was overwhelming that Bullock, Bennett and Knott desired their victims’ deaths, equivocal at best in the case of Eddie Sonnier.

A review of these other prosecutions shows that the jury’s recommendation of the death penalty in the instant case does not conform with sentences meted out in other first degree murder cases. The intention to kill was manifest in the Bullock, Bennett and Knott prosecutions, but is elusive in the present case. Imposition of the death penalty in this case but not in the other cases suggests that the penalty is being applied in the “freakish” and “wanton.” manner reprobated by the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Therefore, under this test, the penalty is excessive within the meaning of Article 905.9 of the Code of Criminal Procedure.

A second indication of arbitrariness arises from the jury’s recommendation of death in apparent disregard of the substantial mitigating circumstances presented by the defendant’s case. The record presents Eddie Sonnier as a young man of excitable disposition with little education. Unlike his brother, who has an extensive criminal record, Eddie has been arrested only once and has never been sentenced to jail.

It is also clear from the record that Eddie Sonnier was acting under his brother’s influence when he participated in the crimes committed on November 14, 1977. The evidence introduced at trial indicates that it was Patrick Sonnier who initiated the nocturnal excursion, who suggested harassing the lovers, and who approached the victims’ car to “arrest” them for trespassing. More importantly, it was Patrick who decided that David and Loretta were to die so that he could avoid a return to the penitentiary. Eddie’s participation in the murder by holding the flashlight (and by firing an unsuccessful first shot, if such was the case) came at his brother’s insistence after Patrick had already decided to kill the young couple. Whatever resistance Eddie, whom the prosecution characterized as a mental and physical weakling, might have offered against his armed brother at this point would surely have been ineffective.

Another substantial mitigating factor is the small role played by Eddie Sonnier in the murders. The defendant’s participation in the crime was minor and came at his brother’s insistence. The importance which may attach to a defendant’s minor participation was specifically recognized by the Supreme Court in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), in which three members of the court indicated their belief that imposition of the death penalty under a theory of vicarious liability may violate Eighth Amendment limits on disproportionality. 438 U.S. 586, 613, 619, 621, 98 S.Ct. 2954, 2969, 2972, 2981, 57 L.Ed.2d 973, 995, 998, 1000 (Blackmun and Marshall, JJ., concurring, White, J. concurring in part and dissenting in part). Not only is there evidence that the defendant participated only at his brother’s insistence, but there is also evidence that he attempted to withdraw from the enterprise; when the young couple was first abducted Eddie refused to drive LeBlanc’s car as requested by Patrick. Patrick simply elected to drive the car himself, and Eddie only decided to accompany him when he could not start Patrick’s car.

In contrast, although several of the statutory aggravating circumstances were found by the jury, the record is also clear that the defendant’s role in these occurrences, except for the aggravated rape, was subsidiary. The prosecution argued that Eddie must have played a substantial role in the evening’s events since Patrick could not have-overcome and killed the young couple without help. However, this argument overlooks the fact that Patrick Sonnier evidently impersonated a police officer and “arrested” the young couple for trespassing after showing them a fake badge. From the time they left their automobile, Loretta and David were handcuffed together. There is no suggestion that Borque and LeBlanc ever struggled with their captors; the law-abiding young people accepted Patrick’s apparent authority to arrest them until the situation was too far advanced for any practical resistance. In short, the weight of the evidence indicates that the defendant played only a subsidiary role in most of the aggravating circumstances found by the jury. Therefore, considering the large number of persuasive mitigating factors and the relatively minor role which the defendant played in the creation of the aggravating circumstances, the death penalty was excessive.

For the reasons assigned, the conviction is affirmed, but the sentence is reversed and the case is remanded to the district court for imposition of a sentence of life imprisonment without benefit of parole, probation or suspension of sentence.

DENNIS and BLANCHE, JJ., concur and assign reasons.

DENNIS, Justice,

concurring.

I join in the majority opinion except for its reasoning and conclusions as to two of the aggravating circumstances. In my opinion the majority misinterprets the statutory meaning of (1) a homicide which causes risk of death or great harm to someone other than its victim, and (2) an especially heinous, atrocious o. cruel murder. See my separate opinion in State v. Sonnier, 379 So.2d 1336 (La.1979). My bretheren’s overly broad reading of these aggravating circumstances will encourage juries to decide the life or death issue arbitrarily or capriciously in all cases in which the victim is not alone at the time of the killing. This type of statutory construction, when' human life is in the balance, jeopardizes the legislature’s good faith effort to enact a constitutionally fair and impartial capital punishment system. See Gregg v. Georgia, 428 U.S. 153, 201-02, 96 S.Ct. 2909, 2938-39, 49 L.Ed.2d 859, 890-91 (1976).

BLANCHE, Justice

(concurring).

I concur.

Even though Eddie James Sonnier was, by all the evidence, a principal in the killing of these young people, it was Elmo Patrick Sonnier who decided their fate and acted as their executioner. The murders took place in total darkness and it was necessary for Eddie James Sonnier to hold the flashlight while his brother pumped three shots each into the back of each victim’s head.

This wanton and pitiless decision was based upon Elmo Patrick’s desire to avoid detection, and eventually, another trip to •Angola. Eddie James Sonnier had no prior criminal record of any significance, and a fair inference from the record depicts him as a functional illiterate who was under the domination and control of his older and brutal brother.

I believe that the death penalty is applicable, and should be applied to principals, and do not, by this concurrence, excuse Eddie Sonnier from its reach simply because he did not pull the trigger. He escapes because of the special circumstances of his involvement in these crimes, and because of the influence of his older brother. After review of both records, it is my opinion that except for Elmo Patrick Sonnier’s decision to kill these two young people, there would have been no murders.

      . At trial, when asked by the defense who had killed the young couple, Captain Horace Co-meaux surprised defense counsel by his statement that Eddie Sonnier had fired the first shot but had missed and that Patrick had then taken the rifle from him. The source of the statement is not revealed by the record.

      . Denison stated that the Miranda warnings were to be given later in the preparatory steps before commencement of the examination.

      . Recently the Supreme Court held in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), that a federal court reviewing a state conviction in a habeas corpus proceeding must consider whether there was sufficient evidence to justify a reasonable trier of fact to find guilt beyond a reasonable doubt, and that the lesser standard of “some evidence” was therefore impermissible. Even under this more stringent standard, however, there is sufficient evidence to affirm the defendant’s conviction.


author: DENNIS, Justice. PER CURIAM.

text:
    TRAVELERS INDEMNITY COMPANY v. Milburn J. DUCOTE et al.
    No. 64331.
    Supreme Court of Louisiana.
    Oct. 8, 1979.
    On Denial of Rehearing Jan. 11, 1980.

      J. Michael Percy, Ledbetter, Percy & Stubbs, Alexandria, for plaintiff-applicant.
    Roy B. Tuck, Jr., Leesville, for defendant-respondent, Donald D. Perkins.
    Stephen C. Kogos, New Orleans, for defendant-respondent, Mrs. Cecile Seitz Noble and Earl Alphonse Noble, Jr.
   DENNIS, Justice.

The crucial question in this suit by a surety company on an indemnity contract is factual: Did the defendants, who offered to become indemnitors, impliedly waive notice of acceptance of their offer by the plaintiff surety company? The court of appeal, in reversing the trial court’s judgment for the surety company, found that communication of acceptance had not been waived by the offerors. Accordingly, the intermediate court held that the defendants were not bound as indemnitors because the surety company failed to notify them of its acceptance of their offers. We reverse and reinstate the trial court decree. Waiver of notification of acceptance was implied by the terms of the offer and the situation of the parties.

The opinion of the court of appeal, 368 So.2d 1119 (La.App.3d Cir. 1979), skillfully sets forth the facts of the case:

“On March 3, 1969 Milburn J. Ducote d/b/a Avoyelles Livestock Auction Market and Deridder Livestock Market, Man-sura, Louisiana applied to Travelers for a performance bond in the sum of $45,-000.00 as required by law. [All market agencies and livestock dealers are required by La.R.S. 3:565 to maintain a bond payable to the Louisiana State Livestock Sanitary Board or deposit a cash amount equal to the amount of the required bond.] Four names appeared as potential indemnitors on this bond: Mil-burn J. Ducote, Howard J. Ducote, Earl A. Noble, Sr., and W. J. Tatman. On March 10, 1969, Travelers issued a bond pursuant to the application. On July 3, 1969, Earl A. Noble, Sr., one of the offered indemnitors on the bond application died, and was survived by his wife, Mrs. Cecile Seitz Noble and his son, Earl A. Noble, Jr. On December 15, 1971, Travelers secured a second bond application, identical in every respect to the first application, bearing the signatures of Mil-burn J. Ducote, Howard Ducote, W. J. Tatman, Donald Perkins, Gerald Wood and W. J. Tatman as president of Eunice Packing Co., Inc. as offered indemnitors. The number of the bond then outstanding since 1969 was placed on the application, and the outstanding bond remained continuously in force until its cancellation by Travelers in 1974.
“As a result of the filing of claims totalling an amount in excess of $78,-000.00 against Milburn Ducote for his failure to pay monies due for the sale of livestock sold for account of the various claimants, Travelers had to pay the penal sum of the bond, $45,000.00, to Forest Henderson, Trustee for the State of Louisiana in May of 1974. Travelers sought indemnity from all parties signatory to both the 1969 and 1971 bond applications, including the heirs of Earl A. Noble, Sr.
“Default judgments were obtained against Milburn J. Ducote, Howard Du-cote and Gerald Wood in solido for the sum of $45,000.00 plus $4,500.00 in attorney’s fees. No appeal [was] taken from this judgment. The Noble heirs filed a Motion for Summary Judgment, alleging that the death of their ancestor operated to discharge them from all liability in the instant action, which motion was denied by the trial court. Following a trial on the merits, the trial court rendered judgment in favor of Travelers against Donald Perkins, Mrs. Cecile Seitz Noble, Earl A. Noble, Jr., W. J. Tatman and Eunice Packing Co., Inc. in solido for the amount of $45,000.00 and $4,500.00 in attorney’s fees. Donald Perkins, the Noble heirs and W. J. Tatman . . . appealed this judgment, denying liability to Travelers on various bases . . . . Eunice Packing Co., Inc. [did not appeal] and the judgment against this defendant is now final.” 368 So.2d at 1121. [footnotes omitted]

The court of appeal reversed the trial court judgment insofar as it imposed liability upon Donald Perkins, Mrs. Cecile Seitz Noble and Earl Noble, Jr. and dismissed Tatman’s appeal as having been abandoned.

Contrary to our initial impression in granting writs that the court of appeal had misstated the pertinent legal principles in its opinion, we substantially agree with the intermediate court’s scholarly explication of the law. We find, nevertheless, that the court of appeal was clearly in error in its determination that notice of acceptance had not been impliedly waived by the indemni-tors.

The parties may impliedly consent to the formation of a contract by the offeree’s acceptance of an offer without notifying the offeror of his acceptance. La.C.C. art. 1819. This is an exception to the general rule that the acceptance of an offer must be communicated to the offeror. La.C.C. arts. 1809,1819. See 1 Litvinoff, Louisiana Civil Law Treatise — Obligations, § 161 et seq. (1969).

As noted by the court of appeal, Louisiana courts, in deciding whether to enforce a contract of guaranty, which is similar to a contract of indemnity, have distinguished between an offer to become a guarantor, which requires notice of accept-anee by the guarantee, and a direct promise of guaranty, whereby notice is either expressly or impliedly waived. Texas Company v. Hudson, et al., 155 La. 966, 99 So. 714 (1924); Hibernia Bank and Trust Co. v. Succession of Cancienne, 140 La. 969, 74 So. 267 (1917); People's Bank v. Lemarie, 106 La. 429, 31 So. 138 (1901); Siben v. Green, 8 So.2d 706 (La.App.Orl. Cir. 1942). In essence, this jurisprudential expression is consistent with the civil code scheme, as well as French and Louisiana doctrine. Under either the jurisprudential or codal-doctrinal analysis, the decisive question is whether, according to the intention of the parties, it was necessary to the formation of a contract that the acceptance be made known to the offeror.

In their offer of indemnity the defendants directly and absolutely promised that, if Travelers issued a performance bond for Ducote, they would hold Travelers harmless from liability on the bond. The defendants, in the application for bond signed by them, in pertinent part, stated:

“Should the Travelers Indemnity Company . . . execute, or procure the execution of the suretyship hereinbefore applied for, or other suretyship in lieu thereof, the undersigned . . .do in consideration thereof, jointly and severally and for each other undertake and agree:
U * * *
“ * * * [t]hat each and every one of the Indemnitors will perform all the conditions of said bond, and any and all modifications, renewals and extensions thereof, or any bond in lieu thereof, and will at all times indemnify and save the Company harmless from and against every claim, demand, liability, cost, charge, counsel fee (including fees of special counsel whenever by the Company deemed necessary) expense, suit, order, judgment and adjudication whatsoever, and will place the Company in funds to meet the same before it shall be required to make payment, and in case the Indem-nitors request the Company to join in the prosecution or defense of any legal proceeding, the Indemnitors will, on demand of the Company, place it in funds sufficient to defray all expenses and all judgments that may be rendered therein." [emphasis supplied]

The literal wording of the written offer indicates that the defendants agreed unconditionally to be bound upon the issuance of the performance bond and did not expect notification of acceptance. The defendants did not present any testimony as to a contrary intention, refusing even to acknowledge the authenticity of the indemnitors’ signatures on the offer. The circumstances and situation of the parties also imply that communication of acceptance was not necessary to the formation of the indemnity agreement. The amount of the bond and the maximum exposure of the indemnitors to liability were fixed in the offer. The indemnitors knew that the bond would either be issued on these terms or refused. They were in a position to learn from Mil-burn Ducote whether the bond was issued. Among them were an employee and a customer of Ducote. The record does not reflect the exact relationship the other indem-nitors had with Ducote but it appears that they were all his friends or business associates. It is likely the indemnitors expected that Ducote would inform them whether the performance bond, which was essential to the lawful operation of his business, had been issued. Considering all of the circumstances, and the unconditional language of the offer, we conclude that the parties consented to the formation of a contract by the issuance of a bond as described in the offer without the necessity of notification of acceptance.

Alternatively, the Noble heirs contend that the obligation of Earl A. Noble, Sr. was extinguished by novation when the surety company, following his death, secured a second indemnity agreement from the remaining indemnitors and others. However, the record does not support their contentions. Novation is a contract, consisting of two stipulations; one to extinguish an existing obligation, the other to substitute a new one in its place. La.C.C. art. 2185. Novation can be made only by persons capable of contracting; it is not presumed; and the intention to make it must clearly result from the terms of the agreement, or by a full discharge of the original debt. La.C.C. art. 2190. The evidence in this case does not indicate that the surety company intended to extinguish the Noble obligation and substitute another in its place. Although Mr. Noble’s death may have prompted the company to obtain additional indemnitors, there is no evidence that the company intended to extinguish the existing obligation or substitute a new one in its place.

The remaining issues which have been raised by the parties were decided correctly by the court of appeal.

For the reasons set forth, we reverse the judgment of the court of appeal and reinstate the trial court judgment.

REVERSED; TRIAL COURT JUDGMENT REINSTATED.

ON APPLICATION FOR REHEARING

PER CURIAM.

In their application for rehearing, the heirs of Earl Noble, Sr. complain that our original opinion failed to address their argument that Earl A. Noble, Sr.’s death extinguished any liability which he or his heirs may have had as indemnitors. We did omit mention of the issue in our original opinion, failing to notice that the issue had not been decided in the court of appeal opinion. After considering the argument, however, we conclude that it has no merit.

The Civil Code provides that every obligation shall be deemed to be heritable as to both parties, unless the contrary be specially expressed, or necessarily implied from the nature of the contract. La. C.C. art. 1999. According to Planiol, the same rule is expressed in the • French Code Civil. He observes:

“In general contracts survive those who make them, and their effects active and passive are transmitted to the heirs (Art. 1122). By way of exception certain contracts made in consideration of the person of the creditor or of the debtor come to an end by the death of such person. These contracts are very few in number, we can cite:
(1) Contracts for hiring out work which ends by the death of the workmen or of the employee (Art. 1795);
(2) The contract of work by the job which terminates by the death of the workman employed for the purpose (Art. 1795);
(3) The partnership which terminates, except in the case of partnerships ‘of capital,’ by the death of one of the partners (Art. 1865(3)). It can be agreed, however, that the partnership will continue with the heirs of the deceased partner (Art. 1868);
(4) The mandate which is extinguished by the death of the principal or of the mandatary (Art. 2003).” Planiol, Traite Elementaire de Droit Civil, Vol. 2, pt. 1, § 1332, p. 755 (11th ed. 1938).

The contract of indemnity in the present case does not specially express that the heirs or the indemnitors are released from liability by the death of their ancestor. Also, the indemnitors’ obligation is not strictly personal, and its nature is not necessarily inconsistent with heritability.

Accordingly, the application for rehearing is denied.

      . See 1 Litvinoff, Louisiana Civil Law Treatise — Obligations, § 154.

      . In his Treatise on Obligations, Professor Lit-vinoff states:
      “The necessity of communicating the acceptance has been especially discussed in Louisiana jurisprudence in reference to the area of offers of a guaranty. As in other contracts, the general rule is that the acceptance of such an offer must be communicated to the offeror. However,- if the offer of guaranty is limited to a presently existing debt or to a specific future debt, there are three situations in which the acceptance need not be communicated: (1) The circumstances of the case prove that there was an express mutual assent by the parties at the time of the offer. (2) The relation of the parties proves that the offeror must have known that his offer would be relied upon. (3) The terms of the offer evidence that no communication is required. If the offer is of a prospective and continuing guaranty, notification of acceptance must be given unless from the terms of the offer or the situation of the parties, waiver can be implied. Ibid. § 166. [footnotes omitted]


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

text:
    STATE of Louisiana v. Charles James MENNE, Jr.
    No. 65130.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    Rehearing Denied March 3, 1980.
    Order Filed March 14, 1980.

      Nolan J. Edwards, Edwards, Stefanski & Barousse, Crowley, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., G. Thomas Porteous, Jr., Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   DENNIS, Justice.

In our review of this criminal conviction we are called upon to decide whether a person who responds to a policeman’s request that he come to the stationhouse for questioning must be advised of his constitutional rights when circumstances arise which create ambiguity as to whether he is any longer at liberty. We hold that under the Fifth Amendment and the Louisiana Constitution, an officer must give constitutional warnings to a person under investigation whenever the circumstances reasonably indicate that the interogee has been deprived of his freedom in any significant way.

Accordingly, under the circumstances of this case — in which the defendant came to the police station for questioning at an officer’s request, was not informed that there was no legal obligation that he comply, was subjected to questioning by two officers in a police interrogation room for approximately one hour, and was told by the officers that they thought he knew more than he had told about the murder they were investigating because he was the last person to possess the murder weapon before it was found in the victim’s car — the defendant was detained or deprived of his freedom in a significant way, requiring that the officers advise him fully of his rights before continuing interrogation. Consequently, the confessions obtained from defendant without affording him this safeguard should have been suppressed. The judgment of the trial court denying defendant’s motion to suppress and the guilty plea conviction induced by the erroneous ruling must be reversed.

Defendant, Charles James Menne, Jr., moved to suppress the use of his confession as evidence in his first degree murder prosecution. After a hearing the trial court refused to suppress the confession and Men-ne pleaded guilty to second degree murder, reserving his right to appeal the unfavorable suppression ruling. See State v. Crosby, 338 So.2d 584 (La.1976). Menne was sentenced to life imprisonment at hard labor, without parole, probation or suspension of sentence. He appealed, assigning as error the denial of his motion to suppress.

Charles James Menne, Jr. denied any complicity in the murder of his acquaintance, Wesley Morgan, when he was first questioned by police. Two months later he became an object of sharpened interest to officers investigating the murder when they learned that Menne had at one time owned the murder weapon, a handgun found in the victim’s car. An officer telephoned Menne and asked him to come to the police station for questioning about the weapon. Menne agreed and was brought to the stationhouse by a police squad car. At the station he was taken directly to an interrogation room on the second floor where he met Lieutenant Thibodeaux and Lieutenant Pelot. These investigating officers testified that Menne was not advised of his constitutional rights before the interrogation began. The record also indicates that Menne was never informed that he was not under arrest or that he was not obliged to remain at the stationhouse or submit to questioning.

The evidence is sketchy as to the first part of the interrogation. Lieutenant Pelot asked Menne from whom he had obtained the weapon, what he had done with it, and when he had last seen the victim. The evidence before us does not reveal Menne’s specific answers, but he evidently admitted that he once owned or possessed the weapon because the officers testified that he' claimed to have sold it to the murder victim. Wesley Morgan. After Menne had been under interrogation for about one hour, Lieutenant Thibodeaux told Menne that they did not believe he was being truthful with them because their investigation indicated he was the last person with the weapon before Wesley Morgan’s death and therefore must know more about the murder than he. had divulged. At that time Menne said “You got me, I killed him.” Lieutenant Thibodeaux testified that he thought Menne was joking and replied, “Well, tell me something about the murder.” In response, Menne told them how he had wrecked Wesley Morgan’s car after the murder by running into a railroad crossing pole. Since this information was not contained in any of the news reports concerning the case, Lieutenant Thibodeaux concluded that Menne definitely was the murderer. At this point, Menne was for the first time advised of his constitutional rights. Afterwards, the officers took his fully detailed confession and reduced it to writing.

Menne argues that the trial court’s ruling must be reversed and his confessions suppressed because they were obtained through police interrogation without prior advice of his right to counsel and his right to remain silent in violation of the Fifth and Sixth Amendments, as expounded in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as well as Article 1, § 13 of the 1974 Louisiana Constitution. The prosecution contends, on the other hand, that the officers were under no obligation to give Menne the warnings sooner than they did because, as was made clear in Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), Menne was not in custody during the early stages of his interrogation. The issue, therefore, is whether under the circumstances of this case, the police officers failed to timely perform their duty of advising the defendant of his constitutional rights.

In explication of the basic rights to the assistance of counsel and the freedom from self-incrimination, the Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), held that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. By “custodial interrogation,” the Miranda court meant “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. See Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976); Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969); Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968). Thus, it is clear that the constitutional warnings are required in “situations falling short of a formal placing in arrest ... in which the accused may be said to be under custody or significant restraint.” State v. Roach, 322 So.2d 222, 227 (La.1975).

No less is required by Article I, § 13 of the 1974 Louisiana Constitution. By providing that a person “arrested or detained in connection with the investigation” of an offense must be fully advised of his rights, the framers intended to require that investigating officers give the warnings anytime such a citizen was deprived of his liberty in a significant way or was not free to go as he pleased. State in the Interest of Dino, 359 So.2d 586 (La.1978); State v. Segers, 355 So.2d 238 (La.1978); State v. Welch, 337 So.2d 1114 (La.1976); State of Louisiana Constitutional Convention of 1973 Verbatim Transcripts, September 7, 1973, Vol. XIV, pp. 45 — 48; Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 40-48 (1974).

Whether a person has been taken into custody, detained or deprived of his freedom of action in a significant way must be decided by an objective test. Any formulation making the need for Miranda warnings depend upon how each individual being questioned perceived his situation would require a prescience neither the po-lice nor any one else possesses. On the other hand, a standard hinging on the inner intentions of the police would fail to recognize Miranda’s concern with the coercive effect of the “atmosphere” from the point of view of the person being questioned. United States v. Hall, 421 F.2d 540 (2d Cir. 1969); State v. Roach, 322 So.2d 222 (La.1975); State v. Corey, 339 So.2d 804 (La.1976).

Viewing the evidence objectively, from the standpoint of a reasonable intero-gee, we conclude that Menne was deprived of his freedom of action in a significant way at least from the time the two officers informed him, following an hour’s interrogation, that he was the last person with the murder weapon before the victim’s death and that they believed he knew more about the crime than he had revealed. By this time Menne, who knew that all other previous owners of the gun had been eliminated as suspects, would have been rash indeed to suppose that he was free, to leave the second floor interrogation room if he pleased. Indeed, so far as the record discloses, Menne was never informed that he was not under arrest. A request to appear at a police station may easily carry an implication of obligation, while the appearance itself, unless clearly stated to be voluntary, may be an awesome experience for the ordinary citizen. See ALI, A Model Code of Pre-Arraignment Procedures, § 110.1(5) Commentary; see also § 120.5. The circumstances in this case dictate a finding that even without any physical restraint or express declaration that he was under arrest Menne necessarily and reasonably must have understood that he was under compulsion to remain and submit to questioning. Cf. State v. Sherer, 354 So.2d 1038 (La.1978); see Seals v. United States, 117 U.S. App.D.C. 79, 325 F.2d 1006 (D.C.Cir.1963); People v. White, 69 Cal.2d 751, 72 Cal.Rptr. 873, 446 P.2d 993 (1968); People v. Arnold, 66 Cal.2d 438, 58 Cal.Rptr. 115, 426 P.2d 515 (1967). The practical significance of the safeguards provided for custodial or deten-tional interrogations would be greatly undermined if it were to open to the police to contend that none of those safeguards applied since the accused had appeared and remained at the police station voluntarily, although the accused reasonably may have thought that he was under constraint. See ALI, A Model Code of Pre-Arraignment Procedures Commentary, § 120.5.

The prosecution’s arguments reduce the problem to a false simplicity by ignoring complicating factors.

First, the state’s brief describes the case as one in which events had not focused any suspicion on Menne or given him any reason to suppose that he was under constraint before he “blurted out” a confession. This argument is, of course, based upon a clearly erroneous view of the evidence.

Next, the state declares defendant’s assignment of error to be without merit, citing Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), without further explanation, as if the case were on all fours with the present one. Mathiason represents, however, a determination by the Supreme Court that under the particular facts there, which are distinguishable from those in the present case, a person questioned by a police officer had not been taken into custody or otherwise deprived of his freedom in any significant way. The high court took its facts from the Oregon Supreme Court opinion as follows:

“ ‘An officer of the State Police investigated a theft at a residence near Pendle-ton. He asked the lady of the house which had been burglarized if she suspected anyone. She replied that the defendant was the only one she could think of. The defendant was a parolee and a “close associate” of her son. The officer tried to contact defendant on three or four occasions with no success. Finally, about 25 days after the burglary, the officer left his card at defendant’s apartment with a note asking him to call because “I’d like to discuss something with you.” The next afternoon the defendant did call. The officer asked where it would be convenient to meet. The defendant had no preference; so the officer asked if the defendant could meet him at the state patrol office in about an hour and a half, about 5:00 p. m. The patrol office was about two blocks from defendant’s apartment. The building housed several .state agencies.
“ ‘The officer met defendant in the hallway, shook hands and took him into an office. The defendant was told he was not under arrest. The door was closed. The two sat across a desk. The police radio in another room could be heard. The officer told defendant he wanted to talk to him about a burglary and that his truthfulness would possibly be considered by the district attorney or judge. The officer further advised that the police believed defendant was involved in the burglary and [falsely stated that] defendant’s fingerprints were found at the scene. The defendant sat for a few minutes and then said he had taken the property. This occurred within five minutes after defendant had come to the office. The officer then advised defendant of his Miranda rights and took a taped confession.
‘At the end of the taped conversation the officer told defendant he was not arresting him at this time; he was released to go about his job and return to his family. . The officer said he was referring the case to the district attorney for him to determine whether criminal charges would be brought. It was 5:30 p. m. when the defendant left the office.
“ ‘The officer' gave all the testimony relevant to this issue. The defendant did not take the stand either at the hearing on the motion to suppress or at the trial.’ ” [emphasis added] 429 U.S. at 493— 94, 97 S.Ct. at 713, 50 L.Ed.2d at 718.

From the moment Mathiason entered the policeman’s office his case differed markedly from the one at bar. He was confronted by a lone officer in an office, rather than two policemen in a second floor interrogation room. He “was immediately informed that he was not under arrest,” 429 U.S. at 495, 97 S.Ct. at 714, instead of being kept uninformed of Jiis status during extensive interrogation. He confessed “within five minutes after [he] had come into the office,” rather than after an hour’s interrogation by two policemen. 429 U.S. at 493, 97 S.Ct. at 713. At the close of a one-half hour interview Mathiason left the office without hindrance, as opposed to being arrested and incarcerated immediately following his interrogation. 429 U.S. at 495, 97 S.Ct. at 714. The Supreme Court concluded that it was “clear from these facts that Mathiason was not in custody ‘or otherwise deprived of his freedom of action in any significant way.’ ” 429 U.S. at 495, 97 S.Ct. at 714, 50 L.Ed.2d at 719. It is equally clear from the facts in the present case that Menne, who was not informed that he was under no compulsion to appear or to remain at the police station, was led to believe, as a reasonable person, that he was not at liberty at least from the time the officers informed him they did not believe his story because he had been the last person with the murder weapon before it was found in the victim’s car.

Furthermore, as we made clear in State in the Interest of Dino, supra, 359 So.2d 586 at 590, even if Mathiason were on all fours with the present case, “its holding clearly does not govern our interpretation of Article 1, § 13 of the 1974 Louisiana Constitution whose framers intended to adopt the Miranda edicts full-blown and unfettered.” As we further stated in Dino:

“* * * [I]t appears that, in fact, there was an intention by the convention to go beyond Miranda and to require more of the State regarding the precise issue now under discussion. In Article I, § 13 the cautions are triggered and must be given ‘when any person has been arrested or detained in connection with the investigation or commission of any offense.’ The use of ‘detained’ in addition to ‘arrested’ was intended to prevent a narrow construction of the latter term.” 359 So.2d at 592.

We conclude that Menne clearly was detained or had his freedom deprived in a significant way at least from the time the officers questioned his credibility and indicated he was a primary suspect. Under these circumstances, the warnings were required and the prosecution should not have been permitted to use the statements obtained from defendant without procedural safeguards effective to secure his privilege against self-incrimination.

For the reasons assigned, the defendant’s conviction and sentence are set aside, the defendant’s motion to suppress his confessions is granted, and the case is remanded for further proceedings.

REVERSED AND REMANDED.

SUMMERS, C. J., dissents.

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

MARCUS, Justice

(dissenting).

In Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), the United States Supreme Court stated that

police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’ It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.

I do not consider that there had been such a restriction on defendant’s freedom in this case as to render him “in custody.” Accordingly, I respectfully dissent.

BLANCHE, Justice

(dissenting).

Persons not under an in-custody investigation are not entitled to a Miranda warning. Neither are persons who volunteer statements at a time when a criminal investigation has not focused on them. This opinion would require police to give Miranda warnings to everyone whom they merely question.

ORDER

Further proceedings in this case are stayed for 90 days or until application for review is filed with the United States Supreme Court, whichever is sooner.

       The Honorable Jesse N. Stone, Jr. participated in this decision as an Associate Justice Ad Hoc.