author:
ISRAEL M. AUGUSTINE, Jr., Justice Ad Hoc.
     PER CURIAM.

text:
    STATE of Louisiana v. Anthony FULLER.
    No. 81-KA-2683.
    Supreme Court of Louisiana.
    June 21, 1982.
    Rehearing Denied Sept. 3, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., Charles W. Kelly, IV,, Robert W. Gillespie, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    Howard M. Fish, Jeanette G. Garrett, Indigent Defender Board, Shreveport, for defendant-appellant.
   ISRAEL M. AUGUSTINE, Jr., Justice Ad Hoc.

Defendant Anthony Fuller was charged by bill of information with the crime of simple burglary, a violation of La.R.S. 14:62. On December 8 and 9, 1980, he was tried before a six-person jury which found him guilty of attempted simple burglary. Thereafter, the court sentenced him to serve six years at hard labor. Defendant now appeals.

The facts of this case are as follow:

C.A.S. Distributing Company occupies a building located at 2214 Kings Highway in Shreveport, Louisiana. It is entirely surrounded with Cyclone fencing approximately six feet high and is protected by a silent burglary alarm.

On the night of April 29, 1980 at about 7:50 p. m., the alarm was triggered, sending a message to Shreveport police that an intruder was inside the C.A.S. building.

Sergeant Thomas Gross arrived at the scene within two or three minutes, followed by Officer Joseph Fecouda. Upon getting out of their police units to investigate, both policemen observed a young male wearing a bluish-green T-shirt run from behind the building and jump the Cyclone fence. Although they lost sight of him after he scaled the fence, they did advise other units in the area of the subject’s description and his direction of flight towards Interstate 20, northwest of the building.

By coincidence, Officer David Casteel was on his way to the scene in response to the alarm when his police car stopped running on the 1-20 exit ramp at Greenwood Road. Casteel’s vehicle coasted down the ramp and came to rest. From that vantage point, Casteel was able to see a person climbing the fence near the rear of the C.A.S. building. Casteel watched as the person ran directly towards him across an open field, climbing two or three more fences along the way. As the subject came to the last fence separating him from Casteel, the officer drew his weapon and ordered him to come across. He did so and was then placed under arrest. He was wearing a bluish T-shirt.

Investigators at the scene observed bent mesh wiring over a broken window and determined this to be the point of entry. Fresh blood was found on the inside of the window, but no evidence was produced at trial to prove that the defendant himself had been cut.

An office inside the building had been ransacked and boxes were stacked up in the middle of the floor. A radio was found outside the building, but was not introduced into evidence. No usable fingerprints were recovered during the investigation.

The foregoing facts were established at trial by the State’s witnesses, and are now uncontested by the defendant, Anthony Fuller.

Appellant contends, however, that accepting these facts as true, there is insufficient evidence to sustain a conviction.

The standard by which an appellate court measures the weight of the State’s case was established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1969). The question we must answer is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt.

There is no question that the State proved the commission of a burglary — the only dispute is whether, beyond a reasonable doubt, Anthony Fuller participated in it.

Upon review of the evidence in the light most favorable to the prosecution, we regard the following as significant:

1. THE DEFENDANT WAS UNDOUBTEDLY AT THE SCENE OF THE BURGLARY.

Sergeant Gross and Officer Fecouda both testified that the subject seen by them to flee from behind the building was a young black male wearing a bluish T-shirt. The person arrested only moments later by Officer Casteel fit that description. Moreover, the subject’s direction of flight, as communicated to other units by Gross and Fecou-da, was northwest toward Interstate 20, and if projected from the point at which the two officers lost sight of the subject, it would have taken him directly towards Cas-teel. Finally, Casteel himself testified that he.had received the radio transmission from Sergeant Gross and was looking in the direction of the C.A.S. building and actually saw the defendant hop the first fence near the C.A.S compound, about two hundred yards away.

2. THE OFFICERS ARRIVED NEAR THE SCENE WHILE THE BURGLARY WAS IN PROGRESS.

Sergeant Gross testified that he was on C.A.S. property within two or three minutes of receiving the burglary report from police dispatchers. Upon arrival, it was clear that the building had been burglarized immediately before—there was still fresh blood on the broken window, the point of entry.

3. THE DEFENDANT FLED THE SCENE OF A CRIME.

Flight and attempt to avoid apprehension indicates consciousness of guilt, and therefore, is one of the circumstances from which a juror may infer guilt. State v. Davies, 350 So.2d 586 (La.1977).

4. THERE IS NO REASONABLE INNOCENT EXPLANATION FOR THE DEFENDANT’S PRESENCE NEAR THE C.A.S. BUILDING.

The defendant was no innocent vagrant who simply happened upon the C.A.S. property. That property was characterized as a “compound”, surrounded on all sides by a high Cyclone fence. It necessarily follows that the defendant was there by design, with certain knowledge that he should not be there, and at the cost of considerable physical effort.

As to the possibility that the defendant was on the premises as a result of another’s force or coercion, we cannot gratuitously acknowledge such an unwarranted and unreasonable hypothesis of innocence— there is simply no evidence to lead us to that conclusion.

We are left with the apparent problem of the fresh blood on the broken window pane. Defendant places great emphasis on the fact that there was no evidence that he had been cut, and concludes from this that there must be a reasonable doubt as to the defendant’s guilt.

However, if there is such a doubt, it must be because 1) the defendant was not on the scene at all, or 2) because although the defendant was on the scene, he was innocent of participating in the burglary.

But both of these hypotheses have been refuted: There is no question that the subject arrested by Officer Casteel was the same person seen running from behind the building, and it has been proven beyond a reasonable doubt that there is no sensible explanation for the defendant’s presence on the property other than as a burglar.

In light of the foregoing, the reasonablé explanation for the presence of fresh blood on the window pane is, of course, that there was another person on the scene at the same time as the defendant, and that together, they burglarized C.A.S. Distributing Company.

We therefore find that after reviewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found that the essential elements of the crime of burglary were proven beyond a reasonable doubt. It follows that the jury’s responsive verdict of guilt as to attempted simple burglary is no less valid.

We also find that the defendant’s six year sentence is appropriate. Considering the defendant’s prior criminal history, which includes five previous convictions between 1975 and 1980, when the current offense was committed, and also considering that three of those convictions were obtained while the defendant was still on federal probation, we conclude that the sentence was neither unreasonable nor excessive. State v. Bonanno, 384 So.2d 355 (La.1980).

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

AFFIRMED.

DIXON, C. J., concurs.

On Application for Rehearing

PER CURIAM.

In his application for rehearing, defendant complains that the Court’s opinion does not treat his Assignment of Error No. 1. We have in fact considered the issue raised in that assignment and find it to be without merit. The prosecutor’s closing remark here can hardly be construed to be focusing the jury’s attention on the defendant’s failure to testify.

       Judge Gaudin of the 5th Circuit Court of Appeal, and Judges Ciaccio and Augustine of the Court of Appeal, Fourth Circuit, participated in this opinion as associate justices ad hoc, joined by Chief Justice Dixon, and Associate Justices Marcus, Blanche and Watson.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Thomas H. FERGUS and Louise P. Bradshaw, a/k/a Louise Bradshaw Fergus.
    No. 81-KA-2633.
    Supreme Court of Louisiana.
    June 21, 1982.
    Rehearing Denied Sept. 3, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Lavalle B. Salomon, Asst. Dist. Atty., for plaintiff-appellee.
    Max Zelden,' Zelden & Zelden, New Orleans, for defendants-appellants.
   ISRAEL M. AUGUSTINE, Jr., Justice Ad Hoc.

Defendants Louise P. Bradshaw and Thomas H. Fergus were charged by bill of information with having violated La.R.S. 40:967, governing distribution of marijuana, a controlled dangerous substance.

At arraignment on January 28,1981, both defendants pleaded not guilty. Later, as a result of plea bargaining, the defendants were allowed to withdraw their former pleas and enter pleas of guilty to attempted distribution of marijuana. The trial judge scheduled a pre-sentence investigation as to each defendant, and on August 5, 1981, upon review of the investigation reports, the trial court sentenced each defendant to serve five years at hard labor and to pay a fine of $2,500.00 and costs.

The operable facts in this case are as follow:

In December 1980, Detective Bryan Boney of the West Monroe Police Department was told by a confidential informant that a former friend had telephoned and inquired as to the informant’s interest in obtaining large quantities of marijuana. On January 8, 1981 Detectives Boney and Pat Stewart were introduced to the female friend named “Stormy” over the telephone. During their initial conversation, the central topic was the eventual sale of marijuana. Discussion included prices, quantities and grades of marijuana to be supplied to the officers by the defendants within the near future. Further taped conversations became more detailed to include the various logistic problems associated with the deal — transportation of the marijuana from Dallas to Monroe, Louisiana; finance of the venture, etc.

The January 8th conversation was not limited to generalities, however, for it was there agreed that the next day, January 9th, Officers Boney and Stewart were to travel to Fourney, Texas, outside Dallas, to purchase one pound of marijuana from the defendants as a show of good faith. The January 9th transaction was perfected on schedule.

Later, on January 20, 1981, having worked out details of another transaction with the officers by telephone, Fergus and Bradshaw travelled in two vehicles from Fourney, Texas to West Monroe, Louisiana, to conclude the first of two scheduled deliveries. The terms of the agreement had called for two separate shipments, each for fifty pounds of marijuana, at the rate of $14,750.00 per shipment. The second shipment was agreed to follow the first by less than twenty-four hours.

Fergus and Bradshaw arrived in West Monroe at approximately 1:30 a.m. on January 21st. As pre-arranged, Bradshaw checked in at a Roadway Inn Motel, while Fergus drove around the vicinity in the marijuana-laden automobile awaiting Bradshaw’s C.B. radio communications. Finally, Bradshaw met Officer Pat Stewart in Room 145 and the money changed hands. Stewart turned over the agreed-upon $14,750.00; Bradshaw in turn called Fergus on the C.B. and instructed him to deliver the fifty pound shipment. When Fergus arrived minutes later, he backed the car up to the motel room, opened the trunk and showed Officer Stewart a number of large garbage bags which contained the contraband. Stewart verified that it was marijuana, then gave the signal to other policemen to converge. The defendants were then arrested for distribution of marijuana.

ASSIGNMENT OF ERROR NO. 1 & NO. 2

By these assignments, defendants urge that in sentencing them, the trial judge failed to comply with the requirements of Louisiana Code of Criminal Procedure, Art. 894.1 and that as a result, their sentences are excessive. We shall treat these assignments together.

Art. 894.1 of the Code of Criminal Procedure establishes sentencing guidelines which the trial courts of this state are required to follow. Paragraphs “A” and “B” of-that statute define the aggravating and mitigating factors which shape the trial court’s great sentencing discretion. Paragraph “C” of the statute provides that the court shall state for the record the consideration taken into account and the factual basis therefor in imposing sentence.

Appellants argue that the trial judge failed to adequately consider several mitigating factors as to each defendant, and failed to state for the record the factual basis for the imposition of these sentences. Ultimately, it is urged that the chief error of the sentencing procedure was the trial court’s failure to particularize each defendant’s sentence. Appellants point to the fact that each defendant received the same sentence although there were great differences in their backgrounds, criminal histories, and their degrees of participation in the offense now under our consideration.

The record reveals that the trial court signed into the record a full and detailed statement of the facts of this case. The trial court also submitted to the record a printed form entitled, “Statement of Considerations as to Sentence of Imprisonment”. That form contains a listing of each of the mitigating factors found in Paragraph “B” of Art. 894.1. There is also a space provided where the trial judge indicates his opinion as to the presence or absence of the mitigating factors. Beneath the listing of those factors are the trial court’s particular comments regarding mitigating circumstances.

As to the defendant Thomas Fergus, the trial court noted on the form its conclusion that there existed no mitigating factors. In a footnote, the trial judge noted that although Fergus had no prior criminal convictions, there was certainly prior criminal conduct: “About two weeks prior to the instant offense, defendant and his co-defendant sold a pound of marijuana to a narcotics officer in Fourney, Texas, and on at least one previous occasion they had purchased a pound of marijuana which they shared with their friends.” The court also specifically noted that Fergus and Bradshaw had agreed to a future sale of a similar (approximately fifty pounds) quantity of marijuana, and that a lesser sentence would deprecate the seriousness of the offense, particularly considering that Fergus’ only motive was quick profit. The record reveals that while it was Bradshaw who had a dealer’s expertise, it was Fergus’ avarice which fueled the venture, though it caused great personal friction with Bradshaw, whose resistance to the operation met Fergus’ constant pressure to carry through with the deal.

We now turn to the trial court’s procedure in sentencing the defendant Bradshaw. The record contains a form identical to that submitted for Fergus, as discussed above. The trial judge found none of the mitigating factors of Art. 894.1(B) to be applicable, and as in the case of Thomas Fergus, noted the sale of a pound of marijuana two weeks prior to the instant offense and, before that, the purchase of a pound of marijuana which was shared with the couple’s friends. The court stated that a lesser sentence would deprecate the seriousness of the offense, which itself was only half of the operation — the second shipment having been totally finalized except for delivery. The court noted that defendant Bradshaw, unlike Fergus, had two prior convictions, one for possession of narcotics.

We think the trial court’s sentencing procedure as to each defendant adequately followed the guidelines of Art. 894.1. Although appellants object to the trial court’s use of a printed form (described above), we fail to see the basis for such an objection and regard it, together with the trial court’s comments thereon, as evidence that the sentencing judge considered each and every mitigating factor in paragraph “B” of Art. 894.1. The court’s conclusion that imprisonment was required as to each defendant was grounded upon a statement that a lesser sentence would deprecate the seriousness of the offense, this statement in turn supported by reference to the rather,large size of the operation and its very noxious effect upon the community in the event that it were carried through. Moreover, the trial court noted that considerable leniency had already been extended to each defendant through plea bargaining which allowed them to plead guilty to attempted distribution.

The record adequately states the court’s sentencing considerations, as well as the factual bases therefor. This court has said that Article 894.1 does not require the trial judge to set forth for the record all the factors listed in said statute which were accorded weight by him in determining to impose a sentence of imprisonment rather than grant suspension of sentence or probation. State v. Jacobs, 383 So.2d 342 (La.1980). From this, it follows that the requirements of Art. 894.1 are met if, on a printed form, the trial court sets forth the lack of all mitigating factors, and as to at least some of those factors, articulates his reasons.

We now consider whether the sentences in this case are excessive. A sentencing judge is accorded great discretion, and absent a finding by this court that the punishment is grossly out of proportion to the offense, or a purposeless imposition of pain and suffering, we will not disturb the trial court’s decision. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Goode, 380 So.2d 1361 (La.1980); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

As already noted, the defendants had already been allowed a considerable degree of leniency by virtue of their plea bargain which reduced the charges.' Ms. Bradshaw is now a third felony offender whose expertise in narcotics traffic was in-dispensible to the perfection of the deal by which it was agreed to ship 100 pounds of marijuana for a,total price of almost $30,-000.00. Thomas Fergus, though lacking Bradshaw’s expertise, was no less involved in the crime than she. In a sense, his culpability is even greater, due to the relentless pressure he exerted upon Bradshaw to carry through with the operation.

Given that the facts of this case would have allowed the State to have charged these defendants more heavily than they were, and given that the defendants received even further leniency by the plea bargain, we do not regard either defendant’s sentence as excessive.

ASSIGNMENT OF ERROR NO. 3

By this assignment of error, defendants contend that the trial court erred in relying on prejudicially false information contained in the pre-sentence investigation report.

The claimed falsehoods are, first, that it was Bradshaw, and not the informant, who had been the one to initiate negotiations as to the drug deal, and second, that Bradshaw was known in drug circles in the Dallas area.

Prior to sentencing, appellants filed a motion to traverse the pre-sentence investigation report, and an evidentiary hearing was subsequently held, as required by State v.

Bosworth, 360 So.2d 173 (La.1978) and St¡ite v. Lockwood, 399 So.2d 190 (La.1981).

At the hearing, all of the witnesses testified that they had known the defendants for at least a year and had socialized with them frequently. They stated that at no time did they know defendant Bradshaw to be a member of any drug circle. We hesitate to accord much weight to these statements: these witnesses could not have testified as to whether Bradshaw was known in drug circles unless they themselves were in drug circles. But notwithstanding that observation, and assuming that Bradshaw was indeed a foreigner to drug cliques, the sentence meted out to Bradshaw is supportable by the facts of record and is not excessive.

For the reasons assigned, the judgment of the trial court fixing sentence as to each defendant is affirmed.

AFFIRMED.

MARCUS, J., concurs.

WATSON, J., concurs but has doubts as to the sentence given defendant Fergus.

       Judge Gaudin of the 5th Circuit Court of Appeal and Judges Ciaccio and Augustine of the Court of Appeal, Fourth Circuit, participated in this opinion as associate justices ad hoc, joined by Chief Justice Dixon, and Associate Justices Marcus, Blanche and Watson.


author: LEMMON, Justice. DENNIS, Justice, DIXON, Chief Justice WATSON, Justice,

text:
    George CITIZEN v. THEODORE DAIGLE AND BROTHER, INC., et al.
    No. 81-C-0156.
    Supreme Court of Louisiana.
    July 2, 1982.
    Rehearing Denied Sept. 3, 1982.

      Aubrey E. Denton, Shelton & Legendre, Lafayette, for applicant.
    John E. Ortego, Cooper, Sonnier, Ortego, Hebert & Woodruff, Abbeville, Homer Ed Barousse, Jr., Crowley, for respondents.
   LEMMON, Justice.

The principal issue in this case is whether plaintiff’s coemployee’s act of pointing and shooting a gun at plaintiff, as a bit of horseplay during working hours while the coemployee was packaging the gun for shipment, constituted an intentional act within the contemplation of R.S. 23:1032, so that the coemployee is liable in tort for the damages sustained by plaintiff as a result of the shooting.

James Cormier and plaintiff were employed in a hardware store owned by Theodore Daigle and Brother, Inc. Several days before the incident, a customer had returned the rifle that had been purchased from the store, complaining that it was defective. Another clerk had tested the gun and determined that it would not fire.

As Cormier was performing his assigned duty of packing the defective rifle for shipment to the manufacturer, plaintiff entered the store through the back door. Intending a practical joke to frighten plaintiff, Cormier checked the chamber to make sure the gun was not loaded and then fired the rifle at the floor to test the rifle further. Then Cormier jokingly aimed the rifle at plaintiff and fired. A pellet, which had lodged in the barrel of the gun, discharged and struck plaintiff in the upper leg, causing serious injury.

Plaintiff filed this suit against his employer for workmen’s compensation benefits. Alternatively, he named as defendants Cormier and Cormier’s homeowner’s insurer, seeking recovery of tort damages and alleging that the injury was caused by an intentional act of a coemployee outside the normal course and scope of his employment. After trial but before judgment, plaintiff settled his workmen’s compensation claim and dismissed the action against his employer.

Plaintiff’s suit against the remaining defendants (Cormier and his insurer) was dismissed after trial, the court finding that Cormier’s conduct constituted gross and wanton negligence, but that the injury to plaintiff was neither expected nor intended. The court further found that the accident occurred while the workers were engaged in “horseplay” in the course of employment and that plaintiff’s exclusive remedy was for workmen’s compensation benefits, as provided in R.S. 23:1032.

The court of appeal affirmed, holding that plaintiff’s injury, which arose out of and occurred in the course of his employment, did not result from an intentional act of a coemployee. 392 So.2d 741. We granted certiorari to determine whether plaintiff’s injury resulted from an “intentional act” of a coemployee within the meaning of R.S. 23:1032 and whether the coemployee was engaged at the time within the “normal course and scope” of his employment. 398 So.2d 527.

Prior to 1976, R.S. 23:1032 afforded tort immunity to the employer of the injured employee, but the employee was free to seek tort recovery against third persons. Act 147 of 1976 amended R.S. 23:1032 to extend tort immunity to any principal, officer, director, stockholder, partner or employee of the employer. The purpose of the act was to foreclose executive officer suits for tort recovery in work-related accidents. W. Malone and H. Johnson, 14 Louisiana Civil Law Treatise — Worker’s Compensation Law and Practice § 384 (2d Ed. 1980). The 1976 amendment, however, provided an exception to the immunity when the liability of the employer, or the principal officer, director, stockholder, partner or employee of the employer, results from an “intentional act” (in which case the liability of such party for his intentional act is not affected by the statute), or when the person causing the injury was not engaged in the “normal course and scope of his employment” at the time of the injury.

In Bazley v. Tortorich, 397 So.2d 475 (La.1981), this court defined the term “intentional act” within the context of R.S. 23:1032. Considering the term in light of the legislative aim to broaden the class of defendants who were afforded tort immunity under the statute, this court concluded that “intentional act” should be interpreted according to the generally accepted meanings of intentional tort in the field of civil liability. The Bazley decision rejected plaintiff’s argument that intentional act should be equated with “voluntary act” and formulated the following definition to be applied under the statute:

“The meaning of intent in this context is that the defendant either desired to bring about the physical results of his act or believed that they were substantially certain to follow from what he did.” 397 So.2d at 482.

Applying the statute as interpreted in Bazley to the facts of this case, we hold that Cormier’s shooting of plaintiff was not an “intentional act” as contemplated by R.S. 23:1032. The testimony at trial indicates that Cormier pointed the gun at plaintiff with the sole intent to frighten plaintiff, not to shoot him. Cormier neither desired to bring about the injury to plaintiff nor knew that the injury was substantially certain to result from what he did. Before firing the rifle, he was told that it would not discharge, and he even test-fired the gun himself with similar results. His only intent was to “scare” the plaintiff, and we cannot say that he should have believed when he pulled the trigger of the unloaded rifle that injury was substantially certain to follow.

Plaintiff argues, however, that this was an intentional assault (the creation of a reasonable apprehension of imminent harm), and we agree that Cormier intended to place plaintiff in apprehension of harm. Even if the gun had not fired, plaintiff arguably could recover for the fear intentionally created by Cormier’s act of frightening him. However, plaintiff did not seek recovery of damages resulting from the intentional frightening, but rather sought damages resulting from the unintentional shooting.

Plaintiff further argues that Cormier committed the tort of battery by causing contact without his consent, even if the contact was not intended. However, the question is not whether Cormier committed the tort of battery, but whether he intentionally did so, thereby removing the tort from the exclusive remedy provision of R.S. 23:1032. The evidence shows that Cormier did not.

A more difficult question is whether Cormier was acting within the normal course and scope of his employment at the time of the injury. Under R.S. 23:1032, as noted above, tort immunity does not extend to a coemployee who was not engaged in the normal course and scope of his employment at the time of the injury.

Plaintiff contends that the act of firing the gun (even without the intent to injure plaintiff) was not within the course and scope of the defendant’s employment and therefore was not included in the statutory grant of immunity. Plaintiff further argues that the Legislature intentionally qualified the phrase “course and scope of employment” with the term “normal”, so as to restrict the immunity to those acts by a coemployee which are regularly performed in his employment.

Cormier was employed as a buyer and substitute service man. His duties included ordering, receiving, checking, pricing and shelving merchandise. During the summer he also substituted for the regularly employed serviceman. Part of Cormier’s duties included testing defective items and packaging them for return to the manufacturer. He was handling the rifle as part of the assigned chore of packaging a defective item for shipment, on the employer’s premises during regular working hours, when he turned aside momentarily to engage in “horseplay”, a diversion which (according to the witnesses) frequently occurred while the employees were performing their regular duties.

We reject the argument that the Legislature inserted the word “normal” to exclude from immunity an executive officer or coemployee who, while clearly in the course of employment, deviates momentarily to do an act which is not an express duty of his employment. An officer or coem-ployee, who is in the course of performing employment duties, does not go outside of his “normal” course and scope of employment, within the contemplation of R.S. 23:1032, simply because he turns aside momentarily to light a cigarette, or to walk to the telephone to call his wife to remind her about a certain engagement, or to get a drink of water, or to engage briefly in horseplay in the spirit of fun. An officer or coemployee who injures the claimant in such a momentary diversion in the course of performing normal employment duties should not be deprived of immunity on such a tenuous basis.

We interpret the third paragraph of the amended R.S. 23:1082 as intended to provide expressly that the mere relationship of employee and employer (or principal officer, coemployee, etc.) does not preclude the injured employee’s recovery from the injury-inflicting officer or coemployee in tort as a third party, unless the officer or coem-ployee was acting in the course and scope of employment at the time of the injury. We conclude that Cormier’s deviation from his regular duties was not so significant or abnormal as to place him outside the normal course and scope of his employment and that his conduct which led to the injury was employment-rooted.

For these reasons, the judgments of the lower courts are affirmed.

DENNIS, J., joins the majority and assigns additional reasons.

DIXON, C. J., dissents with reasons.

WATSON, J., dissents and assigns rear sons.

DENNIS, Justice,

assigning additional concurring reasons.

I respectfully concur.

Because Cormier neither desired to bring about the physical results of his act or believed they were substantially certain to follow from what he did, his conduct was not “an intentional act” excepted from the worker’s compensation exclusive remedy rule. Bazley v. Tortorich, 397 So.2d 475 (La.1981). As we explained in Bazley, the exception of intentional acts from the compensation system is based on two grounds: it acts as a penalty upon the employer for his intentional injury to his employee; and the employer will not be heard to say his intentional act was an “accidental” injury and so under the exclusive provisions of the compensation act. Bazley at 480. We also noted that courts in most states imposing such statutory or common law penalties for intentional misconduct have required the commission of a genuine intentional tort and have refused to stretch liability to include negligence, recklessness, or constructive intent. 2 A. Larson, Workmen’s Compensation, §§ 6813, 6920 (1976).

Although it cannot be free from all doubt, I believe that our workmen’s compensation statute displays a legislative aim to except only genuine intentional torts from the compensation system. The Act does not refer to reckless, willful or wanton conduct. Every general definition of intentional act we have examined requires that the actor either desire the consequences of his act or believe that the consequences are substantially certain to result from it. Restatement Second of Torts, § 8A; W. Pros-ser, Law of Torts § 8 (1971); Cf. La.R.S. 14:10.

It is true that Cormier’s conduct might amount to a “battery” as defined by the Restatement §§ 13 and 16(1). But it clearly does not fall within the Restatement’s definition of an intentional act. Restatement Second of Torts § 8A. In carving out a penalty for non-accidental injuries caused by employers or co-employees, the legislature used only the general term “intentional act” and gave no indication that it wished to depart from the national trend by stretching liability to include negligence, recklessness, or constructive intent.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

Pointing the gun at plaintiff and pulling the trigger were intentional acts. Cormier meant harm to plaintiff — he meant to frighten him. There should be no requirement in a case like this, differing from all other kinds of cases, that the offender is liable only for the consequencés of his deliberate and unlawful act which he actually contemplated.

WATSON, Justice,

dissenting.

Pointing and firing a gun is an intentional act even though the assailant’s only purpose is to frighten his co-employee. Workmen’s compensation is not the exclusive remedy for an employee injured by an intentional act. LSA-R.S. 23:1032.

The distinction between intent and negligence is a matter of degree. When Cormier aimed the rifle at Citizen in an attempt .to frighten him, he committed the tort of assault. Assault is defined by LSA-R.S. 14:36 as:

“... an attempt to commit a battery, or the intentional placing of'another in reasonable apprehension of receiving a battery.”

Cormier intentionally placed Citizen in apprehension of being shot. The tort of assault was intentional. See Restatement of Torts 2d § 21. There is, strictly speaking, no such thing as a negligent assault. William L. Prosser, Law of Torts (4th Ed., 1971) page 41. It is unnecessary to intend injury; it is sufficient to intend to frighten. Since this assault was committed with a dangerous weapon, it was an aggravated one. Assault and battery are closely related concepts which are generally confused in the popular mind.

“Except for this difference in the character of the invasion of the plaintiff’s interests, the two are in all respects identical, and there is no apparent reason why the rules applied to battery, including the fiction of ‘transferred intent’, should not also apply to assault.” Prosser, Law of Torts, supra, at p. 41.

When an assault occurs, the intent which accompanies the assault should be transferred to any resulting battery. There are “... grounds for inferring the constructive intent which makes a wrongful act willful.” Reynolds v. Pierson, 29 Ind.App. 278, 64 N.E. 484 at 485 (1902). The battery, itself becomes intentional even though the result is not intended. See the discussion of “Transferred Intent” in Prosser, Law of Torts, supra, beginning at page 32. “[A]n intention to produce such an effect must be imputed, and it is no answer in law to say that more harm was done than was anticipated, for that is commonly the case with all wrongs.” Wilkinson v. Downton, 2 Queen’s Bench 57 at 59 (1897).

Bazley v. Tortorich, 397 So.2d 475 (La.,1981) held that intentional act is used in LSA-R.S. 23:1032 as a synonym for intentional tort. One who acts intentionally either consciously desires the result or knows that the result is substantially certain to follow. Thus, intent generally has reference to the consequences of an act rather than to the act itself. Bazley v. Tortorich, supra. However, there are some torts in which the motive is immaterial. The unintentional battery which accompanies an intentional assault is such a tort. See Restatement of Torts 2d § 16. Cormier’s action in firing the rifle at Citizen was an intentional act within the meaning of LSA-R.S. 23:1032. See Monk v. Veillon, 312 So.2d 377 (La.App. 3 Cir. 1975).

I respectfully dissent.

      . R.S. 23:1032, as amended in 1976, provides:
      “The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word ‘principal’ shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.”
      “Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.”
      “The immunity from civil liability provided by this Section shall not extend to 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.” (Emphasis supplied.)

      . George Duplechain, the clerk who received the defective rifle from the purchaser and who witnessed the shooting, testified that he told Cormier he had test-fired the gun and determined that it would not shoot. Duplechain further testified that when plaintiff walked into the store while Cormier was packaging the gun for shipment, Cormier took the gun in his hand, told Duplechain that he was going to scare plaintiff, and from waist level pointed the gun at plaintiff and fired. To everyone’s surprise, a pellet was discharged and struck plaintiff.

        Plaintiffs own testimony supports the conclusion that Cormier did not intend to shoot him. Plaintiff testified that he had no reason to believe that defendant intended to injure him, stating that the employees often joked with one another on the job and that he and defendant were on friendly terms.

      . Likewise, plaintiff did not seek damages resulting from the tort of intentional infliction of emotional distress.

      . Plaintiff testified that he was often the object of “ribbing” and frequently engaged in playful joking himself. All of the witnesses characterized the shooting incident as resulting from “horseplay” that often occurred on their employer’s premises.

      . In all of the reported Louisiana cases in which “horseplay” is discussed, the issue was whether an injured employee was entitled to compensation. See Schexneider v. General American Tank Co., 5 La.App. 84, 88 (Orl.Cir. 1926); Brown v. Vacuum Oil Co., 171 La. 707, 132 So. 117 (1930); Vignaul v. Howze, 150 So. 88 (La.App. 1st Cir. 1933); Favre v. Werk Press Cloth Mfg. Co., Inc., 152 So. 694 (La.App.Orl. Cir. 1934); Singleton v. Younger Bros., Inc., 247 So.2d 273 (La.App. 4th Cir. 1971), cert. denied, 249 So.2d 202. In each of these cases, the court held that the risk of injury from horseplay was to be expected in the work place and that horseplay injuries arose out of the employment for purposes of determining entitlement to workmen’s compensation benefits. See Malone and Johnson, above, Vol. 13 § 197.

      . The Legislature used tort terminology of “course and scope of employment”, the technical compensation terminology being “arising out of and in the course of his employment”. R.S. 23:1031. The increasing trend is to test the employer’s vicarious tort liability by criteria similar to that used in compensation cases. LeBrane v. Lewis, 292 So.2d 216 (La.1974). Although there is some sentiment to construe the test broadly to favor recovery, depending on the type of recovery the victim is seeking, the present case does not fairly present that question.

      .In Bourque v. Duplechin, 331 So.2d 40 (La.App. 3 Cir. 1976) writ refused 334 So.2d 210; writ not considered, 334 So.2d 230, there was a battery, but the battery was not preceded by an intentional assault. Since Duplechin did not intend the harm that resulted to Bourque, the tort was negligent rather than intentional.

      . “An assault and battery is not negligence. The former is intentional. The latter is unintentional.” Eckerd v. Weve, 85 Kan. 752, 118 P. 870 at 871 (1911).

      . An interesting case, which also involved the unintended consequences of an intentional practical joke.


author:
MELVIN A. SHORTESS, Justice Ad Hoc.
     MARCUS, Justice

text:
    STATE of Louisiana v. Steven ZOERNER.
    No. 81-KA-1719.
    Supreme Court of Louisiana.
    July 2, 1982.
    Rehearing Denied Sept. 3, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Abbott J. Reeves, William R. Alford, Peter J. Garcia, Asst. Dist. Attys., for plaintiff-appellee.
    Robert Glass, Glass & Reed, New Orleans, for defendant-appellant.
   MELVIN A. SHORTESS, Justice Ad Hoc.

Steven Zoerner (defendant), a 17-year-old male, was arrested at his home on April 6, 1979, on a charge of burglary and taken to the St. Tammany Parish Sheriff’s Office where he made inculpatory oral statements and gave a tape-recorded confession to the murder of John Bennett. The St. Tammany Grand Jury returned an indictment against defendant and Earnest Russell, a juvenile, on May 16, 1979, for first degree murder.

Defendant filed a motion to suppress the confessions, alleging that the statements were given under the influence of fear, duress, intimidation, and threats. The motion was heard by Judge Hillary J. Crain on October 13, 1980, and denied.

Trial by jury was set for January 12, 1981, and Judge John W. Greene was to preside. A week before trial, defense counsel obtained certain exculpatory evidence and moved to reopen the motion to suppress. Judge Greene granted the motion to reopen and, as the trial progressed, combined the hearing on the voluntariness predicate for the confessions with the amended motion to suppress. The motion to suppress was again denied and the confessions were held to be voluntary and admissible, and were presented to the jury.

On January 14, 1981, defendant was convicted of second degree murder and sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. This appeal followed.

Defendant makes three assignments of error: (1) that there was insufficient evidence to support the probable cause necessary for the warrantless arrest of defendant in his home, and thus, the confessions were an inadmissible “fruit” of that illegal arrest; (2) that the State failed to carry its burden of proving beyond a reasonable doubt that defendant’s confessions were voluntary; and (3) that the trial judge should have stopped the alleged grossly improper arguments of the prosecutor.

We find that the second assignment of error has merit.

John Bennett went to his trailer lot on the night of April 3, 1979, apparently to check on business, but was attacked by robbers, stabbed over 100 times, and later died.

Defendant was bom on January 5, 1962, and was just 17 years old at the time of his arrest. He had a seventh-grade education but had spent half of one school year in Mandeville. Officers arrived at his home at about 10:00 p. m. on April 6, 1979. Earlier that evening, police arrested Earnest Russell on a charge of burglarizing the home of Ronald Armstrong. With information from Russell, along with facts which they already possessed concerning defendant’s involvement in the Armstrong burglary, the police proceeded to the Zoerner residence to arrest defendant.

Several officers were present: Sergeant E. L. Herman and Deputy R. R. Reimonenq of the St. Tammany Parish Sheriff’s Office, Detective Charles Mulé, Detective Lionel Hicks of the Slidell Police Department, and possibly others. The arrest was not easy. After defendant and his parents were informed that he was under arrest for burglary, he had to be physically removed from the residence, dressed only in short pants, a tee shirt and socks. Herman’s account of the arrest is as follows:

Q At the time of his arrest, was there any altercation or scuffles?
A Yes, sir. There was.
Q Would you explain to the jury what occurred?
A When he was placed under arrest, his mother and father was in the home and said, “No, you are not taking my boy with you to jail.” I don’t remember if I took him by the right arm or left arm, but I grabbed one of his arms, twisted it, pulled him towards me, put his arm behind him and went out the door to the police car where he was handcuffed, patted down and put in the unit.

From his parents’ residence, defendant was taken to the Sheriff’s Office, where he was questioned in a small office in the back, known as the “deputy’s room.” Defendant signed a written waiver of his Miranda rights at 10:23 p. m., and by 12:05 a. m. he had given the oral statements and the tape-recorded confession.

At the pretrial motion to suppress before Judge Crain, Herman, Mulé, and Emily Holden, a juvenile officer, all testified that the confessions were voluntarily given and that no abuse occurred. The defense rested without calling any witnesses and the motion was denied.

Events then took a startling turn one week before trial. Hicks came forward and informed his superiors that defendant had been beaten by officers during the interrogation.

When called by the defense on the amended motion to suppress, and again before the jury, Hicks testified that defendant was brought into the deputy’s room handcuffed behind his back; that Herman hit defendant in the stomach and said, “Okay, tell us about the man that you and Earnest Russell killed at the trailer park;” that defendant began crying and said, “Sir, I don’t know anything about killing anybody. I never killed anybody in the trailer park;” that Reimonenq grabbed defendant by the collar and threw him against the wall, demanding he get his story straight and stating, “We want to know the truth. We have already arrested the other person, and he has already confessed to everything;” that defendant again denied knowing anything; that Herman struck defendant in the stomach again and defendant bent over and began to moan; that questions were asked but if defendant did not answer the way the officers wanted him to, he was roughed up again; that this procedure continued for 15 to 20 minutes, until it was suggested that a tape-recorded statement be taken. Hicks stated that two tapes were made, but erased to avoid later detection of the numerous “stops and starts.” The third tape was made without stopping the recorder. Hicks commented:

They finally decided they would take a taped statement from him. I was present then, Detective Mulé — all during the course of this, I was present, Detective Mulé, Sergeant A1 Herman and Deputy Reimonenq and the accused. When they began to take the statement, Zoer-ner obviously didn’t have his facts together, as far as he didn’t know enough about the crime scene. He didn’t know as much as a person would have known had they been there.

The defendant took the stand and gave an account of the interrogation consistent with Hicks’ version, except he claimed it was Mulé, instead of Reimonenq, who, along with Herman, had beaten him.

Herman, Mulé, and Reimonenq denied abusing defendant, and suggested various reasons why Hicks would make such accusations. Assistant Chief Terry Parta and Sergeant Swann of the St. Tammany Parish Sheriff’s Office were at the station the night of the arrest, and both denied knowledge of any coercion or abuse.

The trial judge denied the amended motion to suppress, and in written reasons, stated:

The Court has nothing in this record to reflect badly or to impeach the testimony of Officers Herman, Mulé, Parta and Reimonenq. The Court is presented with testimony of those four officers, Officer Herman, Officer Mulé, Officer Parta and Officer Reimonenq, which directly, not indirectly, but directly conflict (sic) with the testimony of Officer Hicks.

We recognize that the admissibility of a confession is a question for the trial judge and his conclusions with respect to the credibility and weight of testimony relating to the voluntariness of a confession will not be set aside, unless they are not supported by the evidence. State v. Fowlkes, 352 So.2d 208 (La.1977). The entire record, however, reveals that there was significant evidence to “reflect badly” on the testimony of Herman, Mulé, and Reimonenq.

At the pretrial motion to suppress with Judge Crane presiding, Herman testified as follows:

Q When you got down to the Sheriff’s Office, how did the subject of his statement come up? Did you ask him to give a statement, or did he volunteer that?
A He volunteered some of the information on the way to the office. And then at the office, he volunteered the statement. I asked him, of course, if he would be willing to give one.

And further,

Q When you took him down to the Sheriff’s Office in the police car, who was present in the police car?
A Myself, Detective Mule, Zoerner, and — I don’t — maybe they might have had another officer. I don’t know.
Q Was he questioned at all in the police car by yourself or by—
A Once we got him in the police car . .. once he got in the car, he fully cooperated with us. He freely talked with us.
Q What did he talk with you all about in the police car? Only the Armstrong burglary?
A He talked about the Armstrong burglary. He talked about this burglary and numerous other burglaries.
Q What’s this burglary?
A Armstrong burglary.
Q Okay, the Armstrong burglary.
A He talked about some of the other burglaries he pulled. He talked about Ernest Russell and what Ernest Russell had done in the burglaries. He talked about Ernest Russell killing a white man and stabbing him, and that the reason he did it was because — you know, different things why they had done it.
Q This was in the police car?
A This was right prior to getting out at the Sheriff’s Office.
Q In the police car?
A Yes, sir.

At the trial on the merits with Judge Greene presiding, Reimonenq directly contradicted Herman’s former testimony. Reimonenq testified:

Q Who transported him from his house to the Sheriff’s Office?
A I transported him.
Q Was there anyone else in your car other than Steven Zoerner and yourself?
A No, sir.

Herman also directly contradicted his own former testimony, apparently in an attempt to make his version of events coincide with Reimonenq’s, who had not testified at the pretrial motion to suppress. Herman testified as follows:

Q Other than this, officer, excuse me, let me ask you another question. From that point [the arrest at the residence] to approximately what period of time was Steven Zoerner in your custody?
A He was transported front there to the Sheriff’s Office in a marked caged unit by Deputy Reimonenq. I met them at the Sheriff’s Office, and I would say ninety percent, ninety-eight percent of the time. (Empnasis ours.)

These direct contradictions raise serious questions as to credibility and do “reflect badly” on the State’s evidence. And there are additional conflicts in the State’s case.

Defendant’s parents came to the Sheriff’s Office shortly after the arrest. They were directed to an area approximately 20 feet from the deputy’s room where their son was being questioned. Both the mother and father testified that although they made requests, they were not allowed to see defendant, until after he had confessed to the murder. Hicks testified that defendant was not allowed to speak with his parents before questioning.

Herman stated he believed defendant spoke to his parents before they actually took the tape-recorded statement, right after defendant was charged with murder. Mule’, who, along with Herman, testified that he was with the defendant 99% of the interrogation time, stated that he did not believe the defendant spoke with his parents until after the tape recording. Emily Holden, on the other hand, testified that the defendant spoke with his parents not more than 20 minutes after he arrived at the station. Again, the State’s evidence was inconsistent and conflicting as to when defendant was allowed to speak with his parents.

Additionally, the trial judge found that the defendant’s parents were 20 feet away from the room where their son was being questioned; that Holden was in an office next door to the deputy’s room; and that the door to the deputy’s room was open, but that no one heard the defendant make any sound. He stated:

This court feels that even a moan by the defendant, which is what he said he did after being hit in the stomach, and certainly being thrown against the wall would make sufficient noise to alert either Sergeant Holden or the mother or father. The Court then is at a loss to explain how this abuse could have transpired without anyone knowing about it.

Again, the record reflects inconsistencies. Mulé testified that the door was closed during the taped statement, yet Holden stated, “. .. I don’t think the door would have been closed.” The defendant stated that he did not “holler” when he was punched in the stomach, but rather, “moaned.” This is consistent with Hicks’ statements that defendant’s response to the abuse was “a moan” and “crying.” Both Mulé and Herman admitted that during the questioning, defendant was crying, emotional, and upset, yet his parents did not hear anything to alert them. Further, there was a period of time when defendant was alone with the officers before his parents arrived.

The trial judge further commented: Detective Hicks said nothing about this abuse from April the 6th of 1979 to January 6th or 7th of 1981, . . . which is a period of twenty-one months without telling anyone this story. The Court recognizes that Detective Hicks is certainly sticking his neck out with this testimony.

Hicks had been with the Slidell Police Department for approximately five years. When he realized that he might be asked to testify as to the Zoerner confessions, he came forward and told his superiors that he would have to reveal what he knew about the abuse, if asked under oath. By so doling, Hicks placed his future and career in jeopardy.

La.R.S. 15:451 provides:

Before what purposes [purports] to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.

We find that the circumstances surrounding defendant’s arrest were not favorable to a non-coercive environment which insures a voluntary statement. La.R.S. 15:451. He was only 17 years old, had a seventh-grade education, and a history of emotional problems. He was arrested, without a warrant on a burglary charge, and forceably removed from his house in short pants, tee shirt and socks while his parents watched, unable to help. Within 20 minutes of arrival at the Sheriff’s Office, he had signed a written Miranda waiver. The testimony concerning his transportation to the Sheriff’s Office and his lack of access to his parents during the interrogation was conflicting and contradictory. Finally, his testimony of verbal and physical abuse was corroborated by the testimony of a police officer. This record, taken as a whole, indicates that the State failed to meet its burden of proving beyond a reasonable doubt that the defendant’s confession was voluntary and intelligently made. Defendant’s conviction is reversed and this case is remanded for a new trial consistent with this opinion.

REVERSED AND REMANDED.

MARCUS, J., dissents and assigns reasons.

CARTER, J., dissents.

MARCUS, Justice

(dissenting).

I disagree with the majority conclusion that the state failed to meet its burden of proving that defendant’s confession was voluntary and intelligently made. The trial judge was presented with conflicting testimony. Moreover, I consider it significant that defendant presented no evidence at the first suppression hearing that he had been physically coerced. I also consider it significant that defendant’s parents were twenty feet away from him during the interrogation and heard nothing. Accordingly, I respectfully dissent.

       Judges Melvin A. Shortess, Burrell J. Carter, and Felix H. Savoie, Jr., of the First Circuit, Court of Appeal participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and Associate Justices Calogero, Marcus and Dennis.

      . Southeast Louisiana State Hospital.

      . The record shows that Herman and Mulé were with defendant during the questioning. Holden was in and .out of the interrogation room and in a small office next door. All three were present while the taped statement was taken. Hicks apparently was in the deputy’s room fór most of the questioning, but left during the taped statement. Reimonenq was present, at least at the beginning of the questioning. Hicks and Reimonenq were not called to testify at the original motion to suppress, but both testified at the trial on the merits.

      . The record reveals that Hicks was in a meeting with the district attorney the week before trial. He received a phone call from defense counsel who informed him that he would be called as a witness for the defense, to testify concerning the confession of Donald Caraway to the Bennett murder. Caraway had confessed to killing a white man in Louisiana approximately a week after defendant was -arrested. Hicks and Mulé had gone to Connecticut to investigate. An arrest warrant was issued for Caraway and he was brought to Louisiana, but was subsequently released. Hicks informed his superiors that if he was questioned under oath about Caraway and the Zoerner confession, he would have to admit that officers had beaten Zoerner.

      . Mr. Zoerner stated, “It may have been an hour or two or three,” before they saw Steven. Mrs. Zoerner stated, “It was 2:00 or 3:00 in the morning, maybe after that, because it was daylight before we got back home.” And after another question she said, “It was hours, three, four or five hours.”

      . Herman added that he was not sure if defendant’s parents knew, before the taped statement, that their son was charged with murder.


author:
      DENNIS, Justice.
     SAVOIE, Justice Ad Hoc,

text:
    STATE of Louisiana v. Patricia GREEN.
    No. 81-KA-1863.
    Supreme Court of Louisiana.
    July 2, 1982.
    Rehearing Denied Sept. 3, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Nancy Gilliland, Lavalle Satma, Asst. Dist. Attys., for plaintiff-ap-pellee. |
    James A. Hobbs, Blackwell, Chambliss, Hobbs & Henry, West Monroe, for defendant-appellant.
   DENNIS, Justice.

Defendant, Patricia E. Green, was convicted by a jury of two counts of negligent homicide, R.S. 14:32, and sentenced to three years at hard labor concurrently on each count. She appealed filing seven assignments of error.

On May 31, 1980, the defendant, Patricia E. Green, accompanied by a woman friend, drove from Monroe to Alexandria for a visit. On the return trip from Alexandria that evening, six miles outside Monroe, defendant’s vehicle veered into the opposite lane and collided head on with a pickup truck occupied by a teenage couple. The truck overturned and burst into flames. The two teenagers, who were trapped inside, burned to death. According to a blood test performed about three hours after the accident, the defendant’s blood alcohol level was .14%. Based on the time lapse, a state expert witness testified that her level would have been about .18% at the time of the accident. In her trial testimony the defendant admitted that she and her friend had packed a case of beer in an ice chest and that she had consumed portions of at least six cans of beer during the trip. Other witnesses testified that immediately before the accident the defendant had committed several traffic violations by tailgating, flashing her high beam head lights and passing dangerously.

ASSIGNMENT OF ERROR NO. 1

In her first assignment of error the defendant challenges a jury instruction which the trial judge gave on the statutory presumption of intoxication raised by the blood test results. The charge was almost identical to the instruction this court approved in State v. Daranda, 388 So.2d 759 (La.1980). Defense counsel argues that the charge as to a mandatory presumption of intoxication withdrew from the jury the question of whether the defendant was negligent by being intoxicated. Our review of the charges reveals, however, that the jury was correctly instructed on both matters. From the instructions it is clear that the State was required to prove criminal negligence and that a finding that the defendant was intoxicated did not necessarily require the jury to find that she was criminally negligent. Therefore, we conclude that the issue of criminal negligence was properly submitted to the jury and that the instructions given should not have mislead or confused the jury. This assignment is without merit.

ASSIGNMENT OF ERROR NO. 2

In her second assignment the defendant argues that the trial court should have excluded the results of the chemical analysis of her blood because the analysis was not “performed according to methods approved by the Department of Public Safety,” as required by La.R.S. 32:663.

The legislature and this court have recognized the importance of establishing safeguards to guarantee accuracy in chemical testing. In the same legislation which authorizes the chemical analysis of a motorist’s blood and creates a legal presumption of intoxication in the event his blood contains the requisite per cent of alcohol, the legislature conditioned the validity of the chemical test upon its having been performed according to methods approved by the Department of Public Safety. La.R.S. 32:663. In considering previous attacks upon the validity of the statutory design, this Court has expressed the opinion that, in order for the State to avail itself of the statutory presumption of a defendant’s intoxication without violation of- his constitutional due process guarantee of a fair trial, detailed methods, procedures and techniques must be officially promulgated to insure the integrity and reliability of the chemical tests including provisions for repair, maintenance, inspection, cleaning, chemical accuracy, and certification as well as proof of adherence to those methods, procedures and techniques. State v. Graham, 360 So.2d 853 (La.1978); State v. Jones, 316 So.2d 100, 105 (La.1975); cf. State v. Junell, 308 So.2d 780, 783 (La.1975).

In response to the constitutional requirements and the legislative mandate expressed by the statute, the Louisiana Department of Public Safety, promulgated methods, procedures and techniques for assuring the accuracy of the tests. See, Rules, Department of Public Safety, Breath and Blood Alcohol Analysis Methods and Techniques, 4 Louisiana Register, No. 10, p. 390 (1978). The rules and regulations are divided into thirteen detailed sections.

Section 11 of the Rules prescribes the methods according to which chemical analysis of blood shall be conducted. That section, in pertinent part, provides:

“The methods approved for blood-alcohol analysis of blood are:
a. Gas Chromatography
(1) Headspace sampling with internal standard.
(2) Direct injection with internal control.
b. Distillation Method. * * * ”

Section 12 of the Rules prescribes the types of blood alcohol kits which may be used in the chemical analysis, as follows:

“Blood drawn for the purpose of determining the alcoholic content therein shall have been taken with the contents of the ‘B-D Blood Alcohol Kit’ No. 4990 or No. 4991 for postmortem determination (manufactured by Becton-Dickinson Division of Becton, Dickinson and Company, Rutherford, New Jersey), or by a similar blood collection kit approved by the Louisiana Department of Public Safety. ‘B-D Blood Alcohol Kits’ or similar blood collection kits as approved will be made available to all law enforcement agencies by the Louisiana State Police Crime Laboratory.”

The evidence is undisputed that the chemical analysis of defendant’s blood was performed in accordance with one of the methods approved by the department, but that the blood collection kit used was not one of the types prescribed by section 12 of the rules or a blood collection kit previously approved by the department. The blood collection kit used, however, was identical to the prescribed kits except that it contained a liquid rather than a solid anti-coagulant. The state’s expert witnesses testified without contradiction that use of a liquid anti-coagulant would protect the specimen from contamination as well as the officially approved solid anti-coagulant.

In order for a chemical analysis of a person’s blood to be considered valid in a criminal action or proceeding arising out of acts alleged to have been committed by him while driving under the influence of alcohol, the analysis must have been performed according to methods approved by the Department of Public Safety. R.S. 32:663 (Supp.1977). It is clear from the record that the analysis of defendant’s blood was performed according to a method approved by the department. The department’s rule describing the types of blood collection kits which shall be used to preserve specimens prior to analysis does not prescribe a method by which the analysis shall be performed. It merely describes the types of blood collection devices which the department considers to be reliable. Although it is a statutory foundational requirement for admission of the result of a blood test that the analysis itself be performed according to an officially prescribed method, the statute does not prohibit the introduction of test results merely because a different anti-coagulant or collection kit than that approved by the department was employed.

One of the important factors in direct analysis of specimens of blood is the protection from contamination of the specimen at the time of taking, during transportation to the chemist, and at the time of analysis. The attorney offering chemical test evidence must be able to show proper protection of the specimen within recognized standards from the time the needle was inserted into the flesh of the subject person until the chemist arrived at his ultimate conclusion after analysis. R. L. Doni-gan, Chemical Tests and the Law, p. 71 (1966). The department’s rule prescribing approved anti-coagulants and collection kits, therefore, is an important safeguard, and scrupulous compliance with it facilitates a prima facie showing that the blood specimen was properly protected from contamination. Failure to use the type of anticoagulant or kit on the list of those approved, however, does not require exclusion of the evidence if it can be proved by competent, admissible evidence that the collection device or anti-coagulant employed provided equivalent protection of the specimen. It is undisputed in this case that the specimen of defendant’s blood was afforded an equivalent means of protection from contamination.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 3

In her third assignment of error the defendant argues that the trial court erred in refusing, to give a requested special charge on criminal negligence. Instead of the requested charge, the trial judge read to the jury the definition of criminal negligence contained in the Criminal Code. R.S. 14:12. A requested special charge must be given by the court if it does not require qualificátion, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given. La.C.Cr.P. art. 807. The charge requested by the defendant was not wholly correct, but was in conflict with the definition of criminal negligence provided by the Criminal Code. On the other hand, the definition given to the jury by the trial judge from the Criminal Code was wholly correct and pertinent and did not require qualification, limitation or explanation. Accordingly, this assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 4 and 5

In her fourth and fifth assignments of error the defendant contends that the trial court imposed excessive sentences and did not properly state for the record the considerations taken into account and the factual basis therefor in imposing the sentences.

Defendant, Patricia E. Green, is a 27 year old white woman, who has been divorced from her only husband and has custody of her only child, a nine year old son. She has no prior criminal record, either as a juvenile or as an adult. She is employed as a licensed practical nurse by the St. Francis Medical Center in Monroe. Her supervisor and fellow workers report that she is a good worker and an excellent nurse. She has displayed a particular talent for comforting and establishing rapport with seriously injured and ill persons under intensive care. The defendant was born and grew up in a neighboring parish in Northeast Louisiana, of which her parents are still residents. The defendant admits to being a social drinker, primarily of beer, but she denies ever having used drugs. She states that she has refrained from any use of alcohol since the accident. The presentence investigation did not uncover any evidence that she is a heavy drinker or chemically dependent.

The fatal traffic accident resulted in the death by burning of two 17 year old youths. The young couple, well respected senior high school students, were returning home from a movie. They were trapped inside the vehicle and could be heard screaming by onlookers who were powerless to help because of the intensity of the flames. The accident occurred when the defendant failed to properly negotiate a curve, veered left of the center line and crashed almost head-on into the youths’ truck. The defendant suffered severe facial lacerations, a broken nose, and a broken collarbone. She was rendered unconscious for a short period by the accident.

In her statement contained in the presen-tence investigation report, the defendant said: “This thing has been on my mind constantly and I have often asked myself why couldn’t it have been me. There’s not a day or night goes by that I don’t think about this. I am so sorry but there is nothing I can do to help at this time. My vehicle was covered just by the normal minimum insurance. I believe I have it with Kemper Insurance Company.”

When a defendant has been convicted of a felony or misdemeanor, the primary considerations militating for the defendant’s imprisonment, which must be considered by the court, are: the likelihood that the defendant will commit another crime if not incarcerated; the defendant’s need of correctional treatment or custodial environment which cannot be provided to him outside of prison; and the deprecation of the seriousness of the crime which would result from the court’s failure to imprison the defendant. La.C.Cr.P. art. 894.1.

There does not appear to be any evidence in this record from which the trial judge could have concluded that the defendant, Patricia E. Green, will commit another crime or that she needs to be kept in custody for treatment or correction. The record tends to support, however, his conclusion that the seriousness of the crime would be deprecated by a sentence which does not include a period of incarceration. The two young victims died a horrible death, and the mounting rate of fatalities caused by drunken drivers is now a grave concern both in this state and nationwide.

The trial court must weigh against the evidence for incarceration any mitigating circumstances, including: whether the defendant intended to cause or threaten harm; whether he acted under provocation; whether there were substantial grounds tending to justify his conduct; whether the victim induced the conduct; whether the defendant has made restitution for his crime; whether the defendant has a prior criminal record; whether the circumstances which produced the crime are likely to recur; whether the defendant’s character and attitude indicate he is likely to commit another crime; whether the defendant is likely to respond affirmatively to probationary treatment; and whether the imprisonment of the defendant would entail excessive hardship on himself or his dependents. La. C.Cr.P. art. 894.1. .

In this case several mitigating circumstances weigh in favor of a lesser sentence. Although the defendant’s conduct took the lives of two high school seniors and caused grievous loss to their families, there is no evidence that she contemplated that her behavior would cause or threaten serious harm. She did not, however, act under inducement or provocation, and there were no grounds to excuse or justify her conduct. She has not compensated the victim’s families, but she has little means other than a liability policy affording minimum coverage. As we noted earlier, because it is such an important consideration, the defendant has no juvenile or adult criminal record. Whether her conduct was the result of circumstances likely to recur is a difficult question since it involves the abuse of alcohol, a substance to which an alarming percentage of our population is addicted. Nevertheless, the presentence investigation among her friends and acquaintances reflects that the defendant has not been an habitually abusive drinker. Because of her character and attitude displayed in her work and in caring for her son as a single parent, it seems likely that unless she is addicted to alcohol that she will refrain from further criminal conduct. Even if she is addicted, this would not rule her out as a person who is likely to respond affirmatively to probationary treatment. And if she does not have a chemical dependency, there would appear to be a high probability of successful probationary treatment in her case. The imprisonment would certainly impose a hardship on the defendant’s nine year old son. He apparently would not lack for support and care from his grandparents and his father who live near his present home. However, he would be required to change his place of domicile and schooling if his mother’s incarceration were of long duration. This and his mother’s absence would impose a severe hardship, but it would not be excessive in comparison with other cases.

Ultimately, it appears that the considerations to be weighed are fairly clear. The defendant is basically a good person, having no criminal record, who is a productive member of society and a caring mother, and clearly is unlikely to commit another crime. On the other hand, the crimes she committed were extremely costly to society and the victims’ families, having taken the lives of two promising young people'. Her crimes also demonstrate a need for more severe punishment as a deterrent and example for others who would drive motor vehicles while under the influence of alcohol.

After weighing these considerations, the trial judge imposed a sentence of three years at hard labor on each count, concurrently. The maximum sentence permitted by statute would have been five years on each count, consecutively, or a total of ten years at hard labor. Based on American theory and practice, however, concurrent sentences are the usual rule for offenses arising out of the same transaction, at least for a defendant without a criminal record and in the absence of a showing that the public safety requires a longer sentence. State v. Underwood, 353 So.2d 1013 (La.1977). Accordingly, we do not consider that ten years at hard labor establishes the upper limits of a constitutionally permissible sentence in this case.

In gauging the heaviness of the sentences, some amelioratory factors should be considered. Because the defendant is a first offender who has been sentenced to less than five years in prison and who has never previously been convicted of a felony in this or any other state or country, she is immediately eligible for parole. R.S. 15:574.4 (Supp.1979). Due to the type of offense of which the defendant has been convicted, she will be eligible for work release six months before her earliest release eligibility date. La.R.S. 15:1111; Department of Corrections, Office of Adult Services, Regulation 30-14(A), Work Release Selection of Inmates, 4 La. Register No. 12, p. 486 (1979). The trial judge’s imposition of a hard labor sentence rather than a local jail term is not necessarily a mark of severity. Adequate penal facilities for female prisoners are not available in many localities. Because of overcrowded parish jails, a sentence to the department of corrections may constitute more humane treatment of a woman inmate.

A majority of this court recently determined that a five year hard labor sentence was not excessive punishment for a first offender found guilty of a single count of negligent homicide under arguably less aggravated circumstances. In State v. Baranda, 398 So.2d 1053 (La.1981) the defendant’s car spun out of control during a rainstorm and crashed into an oncoming vehicle. He testified that he was blinded by the other driver’s automobile headlights. His blood contained .19% alcohol, however, and the other driver contradicted his testimony. A passenger in the vehicle with which defendant’s car collided died 18 days after the accident from a streptococcus infection in fluid which accumulated on her brain as a result of injuries sustained in the accident. Stanley Daranda was a black first offender who had been steadily employed before his conviction, and there was no substantial evidence that the defendant would not have refrained from criminal activity and responded well to probationary treatment. There was evidence, however, that he had been a heavy drinker before the accident and had been arrested, but not convicted, for DWI previously. This court held that “particularly in view of the evidence of defendant’s extreme intoxication” the sentence was not excessive. Id. p. 1056.

Article 1, Section 20, La. Constitution of 1974, prohibits the imposition by law of excessive punishment. The imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment that is enforceable by this court on appellate review of his conviction. State v. Sepulvado, 367 So.2d 762 (La.1979); La.C.Cr.P. art 894.1 provides appropriate criteria by which an appellate court may measure whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous sentencing alternatives. 367 So.2d at 769.

Applying these precepts to the evidence in this case, we conclude that the sentences imposed by the trial judge were within reason and do not amount to constitutionally excessive punishment. A strong case has been made for a lesser sentence or probation, considering that it does not appear likely that the defendant would break the law again or violate any reasonable condition of probation. It does not outweigh, however, the need to impose a sentence of incarceration in this case in order to prevent further depreciation of respect for the law and to discourage other potential lawbreakers from the dangerous criminal conduct of operating a motor vehicle while under the influence of alcohol. The sentences are not excessive in length considering that they have been imposed concurrently and that the defendant appears to be an excellent candidate for early probation and work release. The trial judge’s statement of his sentencing reasons was sufficient justification of his choice of penalty when considered in light of the thoroughly detailed presentence report and the full record of the trial over which the same judge presided. The trial judge acted within the ambit of his authority under both the constitution and the statutes in imposing the sentences.

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

FELIX H. SAVOIE, Jr., J. Ad Hoc, dissents and assigns reasons.

SAVOIE, Justice Ad Hoc,

dissenting.

I respectfully dissent.

Defendant, Patricia Green, was charged by bill of information, with two counts of negligent homicide, a violation of R.S. 14:32. On April 13-16, 1981, defendant was tried by a six-member jury and found guilty as charged. She was sentenced on May 14, 1981, to serve three years at hard labor on each count, sentences to run concurrently.

A blood test was performed on the defendant after the accident. A state crimi-nalist testified that, at the time of the accident, her blood alcohol level must have been .18%. The statutory presumption of intoxication in Louisiana attaches at .10%. Criminalist Roy Herd testified that .18% causes “severe mental impairment”.

The defendant argues that the court below erred in instructing the jury on the presumption of intoxication contained in La.R.S. 32:662 (“If there was at that time 0.10 per cent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of alcoholic beverages”). It is argued that this presumption is contrary to the presumption of innocence guaranteed by our constitution. This court considered this claim in State v. Daranda, 388 So.2d 759 (La.1980) and held the statutory presumption constitutional on grounds that the fact required to be proven (blood alcohol content of .10% or more) supports the fact presumed (intoxication) beyond a reasonable doubt. This is consistent with the United States Supreme Court jurisprudence on mandatory presumptions in criminal cases set out in County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).

The defendant next objects to the admission at her trial of testimony concerning the blood test to which she submitted after the accident and to the admission of the blood itself into evidence. The ground of both objections is that the test was not performed in conformity with the mandatory provisions of La.R.S. 32:663.

The relevant portion of the statute provides:

“Chemical analyses of the person’s blood ... to be considered valid under the provisions of this Part, shall have been performed according to methods approved by the state department of health . .. ”.

Pursuant to the authority thus statutorily granted, the department has promulgated rules for the administration of such tests which have been published in the Louisiana Register, Vol. 4, pp. 390-393. Rule 12 states that the blood is to be drawn with the contents of the B-D Kit # 4990 or # 4991 or by a similar blood collection kit approved by the Department.

Cross-examination of the state criminalist at trial revealed that neither the # 4990 nor the # 4991 kit was used in this case, because the supply of them was exhausted at the time. Instead, the contents of the kits were purchased separately from a local supplier, and were identical in all respects to the # 4990 and # 4991 kits except that a solid rather than a liquid anti-coagulant was used. There was unequivocal testimony that this could not affect the test results.

It might be that there would be reason for a finding of harmless error, if this were simply a question of the admissibility of this evidence. But coupled with the question of admissibility is the system of statutory presumptions. While there is no valid constitutional objection to the presumptions themselves, their operation trenches so closely on the constitutional presumption of innocence as to require the very strictest compliance with the statutory requirements. In State v. Morrison, 392 So.2d 1037 (La.1980), this Court reversed a drunk driving conviction because the blood test had been admitted without adequate evidence showing that the machine used to perform the test was regularly adjusted by a qualified technician. We reversed even though the case was tried before a judge sitting alone, and the judge had declared there was other evidence in the case sufficient to convict.

In State v. Jones, 316 So.2d 100 (La.1975), this Court reversed a conviction where the blood test testimony was given by the technician who performed the test, and that technician failed to produce in court his health department license, showing that he was authorized, under the statutory terms, to perform such tests.

In State v. Graham, 360 So.2d 853 (La.1978), writ granted and remanded, 375 So.2d 374 (La.1979), this Court reversed a conviction where the prosecution failed to produce a manufacturer’s certificate or other form of prima facie proof of standard chemical quality of the test chemicals used. The Court stated that such failure could not be excused as an inconsequential departure from the painstaking methods, techniques and procedures formulated by the department in response to an act of the Legislature and the decisions of this Court. This Court further stated:

“A conviction obtained through chemical test legislation, which not only destroys a defendant’s presumption of innocence but also severely restricts any possibility of a defendant proving his innocence, must be reversed if not accompanied by all of the safeguards designed to insure reliable chemical analysis.”

When we consider together the mandatory statutory language “. .. chemical analy-ses ... to be considered valid ... shall have been performed according to methods approved by the state department of health” coupled with the great prejudice to a defendant when a jury is instructed that, as a practical matter, they must find a crucial fact probative of guilt, we are convinced of the rightness of the Graham, Jones and Morrison cases. We are convinced that the same result is inescapable in this case. If the state wishes to obtain the high degree of jury control represented by the statute in question, it must strictly adhere to the wording thereof.

In view of the foregoing, I would reverse the conviction and sentence.

       Judges Melvin A. Shortess, Burrell J. Carter and Felix H. Savoie, Jr. of the Court of Appeal, First Circuit, participated in this decision as associate justices pro tempore, joined by Associate Justices Dennis, Blanche, Watson, and Lemmon.

      . In the present case the trial court’s instructions were less problematic than those in Car-anda. In the instant case the jury was instructed as follows:
      “Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interests of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.

      “There is no presumption of criminal negligence in favor of the prosecution. As stated, the burden is on the state to prove every element of the offense beyond a reasonable doubt. Our law does provide that if at any time in question there is point one zero percent (.10%) or more, by weight, of alcohol in a person’s blood, it shall be presumed that the person is or was under the influence of alcoholic beverages.”

      . This provision does not apply to offenses committed after July 1, 1982. R.S. 15:574.4 (Supp.1981).