text:
    STATE of Louisiana v. Tyronne MITCHELL.
    No. 82-KA-0195.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    Rehearing Denied Nov. 19, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott Reeves, Stephen Little and William C. Credo, III, Asst. Dist. Attys., for plaintiff-appellee.
    Theon A. Wilson, New Orleans, for defendant-appellant.
   LEMMON, Justice.

The principal issue in this appeal is whether defendant’s statement to a police officer regarding his addiction to codeine was admissible to prove that he knowingly obtained a controlled substance (an amberyl expectorant containing codeine) by using a forged prescription. See R.S. 40:971 B(l)(b). A related issue is whether the state’s evidence was sufficient to support the jury’s finding that defendant had knowledge of the forged nature of the prescription. Facts

Defendant entered a pharmacy and presented a document which purported to be a prescription for amberyl expectorant. At the top of the document was the printed name of Dr. Janifer Roberts, and at the bottom was a signature which purported to be that of Dr. Roberts. The prescription was supposedly issued to “Tyrone Wilson”.

When the prescription aroused the pharmacist’s suspicions, he called Dr. Roberts. She unhesitatingly denied writing the prescription and informed the pharmacist that a pad of blank forms had recently been stolen from her office. The pharmacist alerted the store security guard, who in turn contacted the police. The pharmacist then filled the prescription and sent a package containing the medicine to the counter, to be delivered to the customer who had presented the prescription. When defendant picked up the package, he was detained, and the controlled substance was seized by the security officer. Defendant and the substance were turned over to the police shortly thereafter.

Defendant advised Officer Hurly at the store that the prescription was not for him, but rather that he was “picking it up for a friend”. After confirming with the doctor that the prescription was forged, Hurly told defendant that he was under arrest and advised him of his rights, as required by La. Const. Art. I, § 13 (1974). He was then taken to the police station to be booked. C.Cr.P. Art. 228.

When they arrived at the police station, Officer Hurly began filling out a standard arrest report. Without repeating the Miranda. advice, the officer asked the defendant numerous questions concerning his name, address, age, height, weight, occupation and health status. In response to a question about drug addiction, defendant stated that he was addicted to codeine. Since codeine was the controlled substance in the allegedly prescribed expectorant, the defendant’s statement concerning addiction to that substance was of significant eviden-tiary value in proving defendant’s guilty knowledge.

Admissibility of the Statement

Under the facts and circumstances of this case, the trial court did not err in permitting the officer to testify concerning the statement. There is no suggestion in the record that defendant was not adequately advised of his rights at the time of his arrest. He was made fully aware that any statement he made to the officer might be used against him, and there is not even a hint of evidence challenging the officer’s testimony that defendant understood his rights.

At the time the question about drug addiction was asked and answered, defendant was aware of his rights. Although the state must prove that defendant intelligently and voluntarily waived his rights in order for a custodial statement made in response to “interrogation” to be admissible, the state has borne that burden in this case. See Tague v. Louisiana, 444 U.S. 469, 100 S.Ct. 652, 62 L.Ed.2d 622 (1980); North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). In proving an intelligent waiver of the rights to silence, self-incrimination and counsel, the state need not show that defendant was aware of the full evidentiary significance of his statements.

Furthermore, the fact that the officer told defendant that information about inju-ríes, addiction to drugs and such matters would aid the jailers in providing for any medical needs did not of itself render the statement involuntary or otherwise inadmissible, in the absence of any indication of a bad-faith effort to trick or deceive defendant or to overwhelm his will by threats or subtle coercion.

Defendant clearly knew that officers had him under arrest for obtaining drugs by means of a forged prescription and that he was in the presence of persons seeking to gather evidence to prove his guilt. Moreover, the officer himself was not aware, at the time of the questioning, that the answers by defendant would have evidentiary significance, and he was merely attempting to gather routine information which might be useful if medical problems arose. While not obviating the necessity of an initial advice of Miranda rights (as was done here) when there is a reasonable possibility that the question might elicit an incriminating response (see Rhode Island v. Innis, above), these factors are pertinent to the negating of any claim that the postarrest questioning was a sham designed to trick, coerce or cajole the suspect into divulging information which he could not have known might be used against him. Compare State v. Weedon, 342 So.2d 642 (La.1977), in which this court suppressed statements elicited from the defendant during the booking process after officers explicitly agreed with defense counsel not to question defendant about the offense.

Therefore, the evidence in this record supports the trial judge’s conclusion that the state carried its burden of proving that the statement was voluntarily given and that defendant knowingly waived his Miranda rights prior to responding to the officer’s questions.

Sufficiency of Evidence

The evidence established beyond a reasonable doubt that defendant obtained a controlled dangerous substance by means of a forged prescription. Defendant’s explanation to arresting officers that he was “picking the prescription up for a friend” suggested that he did not do so “knowingly”, and the state bears the burden of proving every element of the offense.

In prior eases in which this court has reversed convictions for obtaining controlled substances with forged prescriptions, the evidence, although sufficient to prove that forged prescriptions were used, was insufficient to prove the essential scienter element. Although the instant appeal also presents a case in which the forged prescription was presented to the pharmacist by a person other than the person purportedly named in the prescription to receive the drug, defendant’s statement concerning his codeine addiction formed the basis from which a rational juror could draw the inference of guilty knowledge and could conclude beyond a reasonable doubt that defendant knowingly used a forged prescription to obtain the drug to which he was addicted.

Defendant’s conviction and sentence are affirmed.

DIXON, C.J., concurs.

      . Defendant’s other assignment of error lacks any arguable merit and is treated in an appendix, which is unpublished, but forms part of the official record in this case.

      . The pharmacist, who described a recent rash of forged prescriptions, testified that this was the second prescription from Dr. Roberts that same day. He found that unusual, since he had not previously received any prescriptions from Dr. Roberts. In her testimony, Dr. Roberts pointed out some other irregularities, such as the misspelling of the name of the prescribed drug and the failure of the “physician’s signature” to have “M.D.” written behind it.

      . In closing argument, the prosecutor alluded to defendant’s statement about codeine addiction as important evidence that defendant (who did not testify, but whose exculpatory explanation was nevertheless presented to the jury) was fully aware that he was presenting a forged prescription. The defense argument, understandably, had centered on the state’s failure to prove guilty knowledge.

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); La. Const. Art. I, § 13 (1974).

      . The court conducted a hearing, outside the presence of the jury, on the circumstances surrounding the challenged statement. Defendant failed to avail himself of his right to testify out of the presence of the jury concerning the free and voluntary nature of his statement. See C.Cr.P. Art. 703; State v. Lovett, 345 So.2d 1139 (La.1977). See also State v. Dison, 396 So.2d 1254 (La.1981); State v. Day, 391 So.2d 1147 (La.1980).

      . Although the arresting officer did not read-vise defendant of his rights at the booking station, the advice had been fully given (and was shown to have been understood) only about 30 minutes earlier. Furthermore, the booking questions were asked by the same officer who had previously given the advice of rights.

      .We need not decide in this case under what circumstances a “trick” might defeat admissibility of an inculpatory statement. See People v. Castello, 194 Cal. 595, 229 P.2d 855 (1924); Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). In this case, defendant was not made any promises of immunity in exchange for his cooperation. See State v. Dison, above; R.S. 15:451. Nor did he allege that he was in a state of physical pain or otherwise unable to understand or act rationally because of drug addiction, intoxication or any other cause. See Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); State v. Sears, 298 So.2d 814 (La.1974); State v. Glover, 343 So.2d 118 (La.1977).

      . Because the indictment charged defendant under R.S. 40:971, rather than under the general forgery article (R.S. 14:72), the state was not required to prove that defendant acted with a specific intent to defraud. See State v. Raymo, 419 So.2d 858 (La.1982).

      . See State v. Goiner, 410 So.2d 1085 (La.1982); State v. Brown, 352 So.2d 690 (La.1977).


source: Caselaw Access Project

author: WARD, Justice Pro Tern.

license: Public Domain

text:
    STATE of Louisiana v. Noland BROWN.
    No. 81-KA-3182.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    Rehearing Denied Nov. 19, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Speedy 0. Long, Dist. Atty., Dan B. Cornett, Asst. Dist. Atty., for plaintiff-appellee.
    J.P. Mauffray, Jr., Jena, for defendant-appellant.
   WARD, Justice Pro Tern.

Noland E. Brown was charged by a bill of information with simple burglary of the Jena Pharmacy, Inc., a violation of La.R.S. 14:62.1. At arraignment, Brown entered pleas of not guilty and not guilty by reason of insanity. After a trial, the jury returned a verdict of guilty as charged, and Brown now appeals that conviction. Although defense counsel made thirteen assignments of error in which he asked for reversal, for the purpose of this discussion the assignments are grouped into seven arguments. Before discussing counsel’s arguments, however, a brief description of the burglary and the circumstances of Brown’s arrest is appropriate.

The burglary must have occurred between five p.m. on December 31, 1979, and eight a.m. on January 2, 1980, because Sidney Max Parker, owner of the Jena Pharmacy, closed his business at the end of the day on December 31,1979, New Year’s Eve, and the pharmacy remained closed until after the New Year, when Parker reopened his business on January 2, 1980, and discovered the burglary. A back door had been forced open, and Mr. Parker found that some controlled dangerous substances were missing from his store. Officers who were called to investigate were unable to solve the burglary until, during the course of investigating other pharmacy burglaries in the area, police arrested three suspects: Melvin Whatley, Timmy Robertson, and Billy Kennedy. Whatley and Robertson confessed to committing the burglary of the Jena Pharmacy, and they implicated Brown as one of the perpetrators. Based on this information, State Trooper Larry Morphis obtained an arrest warrant and arrested Brown at his home on July 8,1980. During trial, Whatley, Robertson and Kennedy testified, and they all described how they drove around the City of Jena on New Year’s Eve until after midnight, when Brown and Robertson entered the Jena Pharmacy through the back door in the early morning hours of January 1, 1980. They described how Brown and Robertson returned to the automobile with drugs in their possession and how the drugs were later divided among the four.

During trial, Brown’s counsel made several motions for a judgment of acquittal. He argues now, in Assignments of Error Numbers 1 and 2, that the Trial Judge committed error when he denied those motions.

We believe, however, that the Trial Judge was correct. La.C.Cr.P. Art. 778. Even if the Trial Judge believed Brown’s motions were well founded, he did not have the authority to render a judgment of acquittal, and, therefore, he did not commit error when he refused to do so.

Next, in Assignments of Error Numbers 3 and 4, defense counsel argues that the State failed to prove that the offense occurred on the date named in the bill of information. Relying on Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), he contends, therefore, that the evidence is insufficient to support a guilty verdict and that the Trial Judge erred when he did not render a judgment of acquittal. As we have previously explained, the Trial Judge in a jury trial does not have authority to render a judgment of acquittal. Nonetheless, the Trial Judge was correct when he denied the motion. Jackson v. Virginia, supra, holds that fundamental concepts of due process require that a guilty verdict must be set aside unless a rational trier of fact, viewing the evidence in the light most favorable to the State, could reasonably conclude that defendant’s guilt had been proven beyond a reasonable doubt. Here, the bill of information charged the crime occurred “on or about the night of December 31,1979, or the morning of January 1, 1980.” Brown’s accomplices, Whatley, Robertson and Kennedy, testified that on that night they had been driving around Jena using drugs and that sometime shortly after midnight, Brown and Robertson broke into the pharmacy to obtain drugs. Applying the standards of Jackson v. Virginia, supra, to the evidence in the instant case, we believe that the evidence was not only sufficient, we believe that it was overwhelming to prove that Brown entered the pharmacy in the early morning of January 1,1982, and stole drugs which were controlled dangerous substances. Moreover, the standards of Jackson v. Virginia are applicable only to essential elements of a crime, and the date and time are not essential elements of the crime of burglary.

Other matters raised in Assignments of Error Numbers 3 and 4 do not warrant further discussion.

Counsel for Brown next argues in Assignments of Error Numbers 5 and 6 that the Trial Court erred in permitting the jury to hear testimony giving the content of an oral incupatory statement made by defendant because the State had failed to give notice of its intent to introduce the statement. La.C.Cr.P. Art. 768 states:

If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.

Defendant made a specific request for this information in his motion for discovery and asked to be informed of “the existence of all oral confessions and statements of any nature made by the defendant, which the State intends to offer in evidence at trial.... ” Prior to trial, the State’s attorney informed Brown’s counsel by letter of Brown’s inculpatory statement:

“You have requested a copy of the recorded statement given by Noland E. Brown. Mr. Brown did not give a recorded statement. When the defendant was arrested and advised of his Miranda rights by Trooper Larry Morphis, defendant was advised he was under arrest for the burglary of a pharmacy. The name of the pharmacy involved was not mentioned. After Brown was arrested, his wife entered the room and asked what was going on. Brown answered, ‘They said I broke into the Jena Pharmacy, I mean a pharmacy in Jena, but I have three or four witnesses that can prove I was at home that night.’ When Morphis asked Brown how he knew he was being arrested for the burglary of the Jena Pharmacy, he replied that he had meant a pharmacy in Jena. When Morphis asked Brown how he could provide witnesses saying that he was at home on the night of the burglary when he had stated that he had no knowledge of the incident and had not been told by Morphis the date of the incident Brown only replied, ‘I’m not guilty.’
This should comply with your motion for discovery.”

Brown’s counsel argues that although he had been informed of the existence of the statement, it was not admissible in evidence because he had not been informed that the State intended to introduce it as evidence.

We decline to interpret Article 768 in such a pedantic manner. The State’s attorney clearly indicated in his letter that the information transmitted was in response to Brown’s motion for discovery, and any reasonable person would have concluded that the State intended to introduce the statement in evidence. Since the information contained in the letter satisfies the notice requirement of Article 768, the Trial Judge was correct when he permitted the content of the inculpatory statements to be heard by the jury.

Defense counsel also alleges in Assignment of Error Number 7 that the Trial Court erred in allowing T.J. Shuflin, a crim-inalist who qualified as an expert in the identification of drugs, to testify that the drugs stolen in the burglary were classified as controlled dangerous substances, an essential element of the offense. This testimony may have been cumulative, repeating Mr. Parker’s testimony, but it was certainly relevant, and to admit it was not error.

Counsel also argues in Assignment of Error Number 10 that the Trial Judge erred when he permitted Whatley, Robertson and Kennedy to testify as to statements they and Brown made during the time they were driving around the city of Jena while they were planning to commit the burglary. In discovery motions, counsel had requested to be informed if the State intended to use hearsay statements of co-conspirators. The State’s attorney answered, but only indicated a willingness to provide at a later date the information requested by Brown’s counsel, and the record does not contain the State’s answers themselves. Nevertheless, Brown proceeded to trial without objection, and during trial Billy Kennedy testified as to what could possibly be construed as hearsay statements of a co-conspirator. While it is true that Brown’s counsel objected before Kennedy gave that testimony, the reason given for the objection was that a prima facie case of conspiracy had not first been provided. Counsel did not object to the testimony for the reason argued in this appeal, that is, that he had not been furnished notice of intention to use hearsay statements of co-conspirators.

We believe, therefore, that the Trial Judge did not err when he permitted Kennedy to testify as to the statements of co-conspirators because the record clearly indicates a prima facie case of conspiracy had been established. Although counsel now in this appeal argues that the testimony was inadmissible because the State failed to give notice that it would be used, counsel cannot raise a new basis for an objection on appeal. State v. Baylis, 388 So.2d 713 (La.1980). Moreover, when counsel proceeded to trial without answers to his motions for discovery, he waived the right to object to testimony which might otherwise be excluded because of the lack of answers to discovery motions. State v. Bonanno, 373 So.2d 1284 (La.1979).

In Assignments of Error Numbers 9, 10, and 11, Brown argues that the Trial Judge erred by refusing to give some of his requested special charges to the jury. These charges, he argues, would help the jury understand both of his defenses: intoxication, which would negate specific intent, and insanity at the time of the commission of the offense. The suggested charges were taken verbatim from LSA-R.S. Title 40 pertaining to controlled dangerous substances:

SPECIAL INSTRUCTION NO. 9:
A drug addict is a drug dependent person who habitually uses any narcotic drugs as to have lost the power of self control with reference to his use of said drugs. LSA-R.S. 40:961(1)
SPECIAL INSTRUCTION NO. 10:
Narcotic drug includes that class of drugs known as opium and opiates. LSA-R.S. 40:961(28)
SPECIAL INSTRUCTION NO. 11:
Opiate means any dangerous substance having an addiction sustaining liability similar to morphine. LSA-R.S. 40:961(24)
SPECIAL INSTRUCTION NO. 12:
Schedule II drugs are drugs which are found to have the following properties:
1) the drug has a high potential for abuse; and
2) the drug has a currently accepted medical use in treatment in the United States; and
3) abuse of the drug may lead to severe psychological or physical dependence.” LSA-R.S. 40:963.

Article 807 of the Louisiana Code of Criminal Procedure provides:

A requested special charge shall be given by the court if it does not require qualification, 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.

The special charges, while wholly correct, were not wholly pertinent to his defenses; when they were pertinent, the Trial Judge included them in the charge to the jury. The Trial Judge did not err when he omitted some of the charges.

In Assignments of Error Numbers 12 and 13, Brown’s counsel contends that this Court should reverse his conviction because he proved by a preponderance of the evidence that Brown was insane at the time of the commission of the Act. In his brief, counsel argues the applicability of Jackson v. Virginia, supra, and contends “that the defendant easily met his burden of proof on the special defenses of intoxication and insanity at the time of the offense,” and that “no reasonable trier of fact would have concluded otherwise.” Yet in his motion for a new trial, counsel did not include this allegation as a ground for granting a new trial. In a jury trial the proper procedure for raising the issue of whether there is sufficient evidence to support a conviction is by a motion for a new trial. Even though the issue was not properly presented to the Trial Judge, we have considered the question of whether the evidence is sufficient to support the verdict and the special application of the Jackson v. Virginia rule as to the insanity defense.

When a defendant pleads insanity as a defense, he must prove his insanity by a preponderance of the evidence. La.C. Cr.P. Art. 652. In a motion for a new trial, the Trial Judge must decide whether there is a sufficiency of evidence by applying the test of Jackson v. Virginia. When insanity is specifically pleaded as a defense, because it is an affirmative defense and because the defendant must bear the burden of proof to show his insanity by a preponderance of the evidence, the test of Jackson v. Virginia in that particular situation has been formulated to be:

... whether under the facts and circumstances of the case, any rational fact finder, reviewing the evidence in the light most favorable to the prosecution, could conclude that defendant had not proved by a preponderance of the evidence that he was insane at the time of the offense.

State v. Claibon, 395 So.2d 770 (La.1981).

In this particular case, although defendant’s evidence may have proved that he was addicted to the use of drugs, it fell woefully short of proving by a preponderance of the evidence that he could not distinguish right from wrong. C.Cr.P. Art. 652; LSA-R.S. 14:14. We believe, therefore, that a rational trier of fact could well conclude, if he considered the evidence in the light most favorable to the State, that defendant had not proved his defense of insanity by a preponderance of the evidence.

We, therefore, affirm defendant’s conviction and sentence.

AFFIRMED.

       Judges William H. Byrnes and David R.M. Williams of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Pro Tempore, with Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . Act 144 of 1982, effective September 10, 1982, grants authority to the Trial Judge to grant a post-verdict judgment of acquittal, when the Court finds that the evidence, viewed in a light most favorable to the State, does not reasonably permit a finding of guilty. This Act, a legislative response to the problem created by
        Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and Burks v. U.S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), is not applicable to motions made prior to the jury verdict, and is applicable only to cases tried after September 10, 1982.

      . La.R.S. 14:62.l.A. Simple burglary of a pharmacy is the unauthorized entry of any building, warehouse, physician’s office, hospital, pharmaceutical house, or other structure used in whole or in part for the sale, storage and/or dispensing of controlled dangerous substances, as defined in R.S. 40:961(7), with the intent to commit the theft of any drug which is defined as a controlled dangerous substance in R.S. 40:961(7) other than set forth in R.S. 14:60.

      . La.C.Cr.P. Art. 851(1); see also footnote 1, supra.


author: WARD, Justice Pro Tem.

text:
    STATE of Louisiana v. Aaron Daniel ROUBIQUE.
    No. 82-KA-0243.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    Rehearing Denied Nov. 19, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Michael McDonald, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Chester Hugh Boyd, Baton Rouge, for defendant-appellant.
   WARD, Justice Pro Tem.

Aaron Roubique was charged by bill of information on June 11,1981, with committing the crimes of possession of marijuana with intent to distribute and production of marijuana, which are defined by La.R.S. 40:967(A). Roubique pleaded not guilty and on July 8, 1981, he filed a motion to suppress evidence which had been seized pursuant to a search warrant. The Trial Judge denied the motion to suppress, and thereafter Roubique pleaded guilty to possession of marijuana with intent to distribute, reserving his right to appeal from the adverse ruling on the motion to suppress. State v. Crosby, 338 So.2d 584 (La.1976). The Judge sentenced Roubique to serve five years at hard labor and ordered him to pay a $5,000.00 fine, but he suspended the imprisonment and placed him on active probation for five years. As a special condition of his probation, the Judge ordered that he serve a year in the parish jail. Roubique appeals not only the Trial Judge’s ruling denying his motion to suppress, but also appeals his sentence, contending that it is excessive.

There is no dispute as to what occurred on the afternoon of March 18, 1981, when members of the East Baton Rouge Parish Sheriff’s Department executed a search warrant for Roubique’s trailer home, located at 17735 Riverside Park in East Baton Rouge Parish. They seized over forty-seven pounds of marijuana, five marijuana plants, two and one-half' methaqualone tablets, three grams of hashish, and $8,580.00.

The first of several issues raised by the defendant on appeal is whether the Trial Judge erred when he denied defendant’s motion to suppress the evidence. Roubique contends that the search warrant should not have been issued in the first place. The search warrant was supported by the following affidavit:

Affiant informs the Court that on March 18, 1981, a confidential and reliable informant who has provided information to affiant over the past five (5) years which has led to the arrest and conviction of at least ten (10) persons for drug offenses, contacted affiant and stated that on or about March 18,1981, he, being said informant, had been present at the above described trailer and had observed a quantity of what was described by the occupant as Cocaine and Marijuana.
Affiant further informs the Court that said informant further stated that Aaron Roubique is well known to said informant and said informant has been present at the above location on several prior occasions in the past several months and has observed Cocaine and Marijuana or other controlled dangerous substances on these prior visits.
Affiant further informs the Court that affiant was contacted by Detective Greg Farris of the Baton Rouge City Police Department who stated that a confidential and reliable informant who has provided information which has led to several arrests informed him that Aaron Rou-bique was the occupant of the above described trailer and that said informant had purchased large quantities of marijuana from Mr. Roubique.
Affiant further informs the Court that a check with Gulf States Utilities shows service at 17735 Riverside Park Drive, in the name of Aaron Roubique.
Affiant further informs the Court that approximately one (1) month ago affiant observed a 1975 Ford bearing license 240X671 at the above residence and after checking registration found it belonged to Aaron Roubique.

ASSIGNMENTS OF ERROR NO. I & VI

Robique contends that the affidavit for the search warrant was tainted by a prior illegal entry onto his property by Captain Michael Barnette and that Barnette, who procured the warrant, intentionally withheld the facts of this entry from the issuing magistrate. Testimony given during the hearing of the motion to suppress proved that Barnette had, indeed, gone onto Rou-bique’s land-

Other evidence produced in the motion showed that in February 1981, Officer Greg Phares of the Baton Rouge City Police Department contacted Captain Barnette of the Sheriffs Office to relay information which he had obtained from an informant. The informant had told him that Roubique had a large quantity of drugs at his trailer residence, and further, the informant had taken Phares to the general area where the trailer was located. Barnette knew Ro-bique by reputation; he had conducted a surveillance of Roubique’s prior residence, and he had monitored Roubique’s activities following his move to Riverside Park.

Shortly after relaying this information to Barnette, in February 1981, Phares brought Barnette to the general area to obtain either a description or an address of the trailer. They drove a short distance on a gravel pathway which Barnette initially believed was a road paralleling the Amite River, but later realized was actually Roubique’s driveway. Although at the entrance to the road, there was a sign: “Private Road, No Trespassing”, Barnette testified he did not observe the sign when he first drove down the driveway. After driving a short distance, Barnette observed Roubique and another male in the front yard, and he stopped his vehicle and informed them that he was looking for a place to rent. After a brief exchange of words, the officers drove off. Barnette, however, had obtained the license number of a vehicle parked beside the trailer, and his later investigation showed that the vehicle belonged to Rou-bique. Additionally, Gulf States Utilities verified service to Roubique at that location.

Because Barnette believed that he had been recognized, the surveillance was discontinued, and no further activity occurred until March 18, 1981, when Barnette received the information described in the affidavit from another informant. The warrant was then issued, and the search followed.

The Trial Judge, after denying the motion to suppress, said that the only question which caused him concern was that of the officers’ trip down the private road before the warrant was issued. The Judge explained:

The Court feels that the only evidence gathered as such by that trip was the license number of the car as to Mr. Rou-bique. I feel the officer was in good faith and did not purposely trespass, though in truth and in fact it amounted to trespass. They were on private property and they had signs there. But, in my opinion, they had sufficient knowledge to have issued the warrant that was ultimately issued without the trip down the road. They had the location of the trailer, they had the name of the gentlemen that was allegedly working out at that trailer. And I’m not going to excise from the warrant information that they had previously acquired and received....

Roubique conceding that the only evidence which was obtained from the February entry was confirmation of the location of the trailer and the license number of the vehicle, nevertheless, argues that the evidence obtained from that illegal entry was used to construct the search warrant which was subsequently issued in March. On the other hand, the State argues that the officers’ “unintentional patrol” onto the private drive did not constitute a search. Alternatively, the State argues that Roubique had no expectation of privacy as to his private road or in the area immediately surrounding his trailer. Finally, the State contends that the information contained in the affidavit used to support the warrant was attenuated from the entry onto Roubique’s property by intervening factors.

Notwithstanding the State’s first argument, there was a search of defendant’s premises before the warrant was issued. In plain English, a search occurred when the officers perused the premises for the purpose of obtaining either a description or the address of the trailer and recording the license numbers of any vehicles on the premises.

The State’s next argument, that the defendant did not have a reasonable expectation of privacy, is not supported by the law or the evidence. In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the U.S. Supreme Court abandoned the Fourth Amendment test of “constitutionally protected areas” and declared:

“For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” 88 S.Ct. at 511.

Hence, the inquiry must be directed to the question of whether Roubique had a reasonable expectation of privacy in the driveway to his trailer.

The sign at the road’s entrance is ample evidence of Roubique’s intent to preserve his privacy. Roubique’s trailer was isolated, barely visible from the road, and no other vehicle could be seen. Clearly, Roubique had a reasonable expectation of privacy in the premises, and Barnette invaded Roubique’s constitutionally protected right to privacy when he entered the posted property. Nevertheless, the evidence obtained from an illegal search need not be suppressed if the causal connection between the unlawful police conduct and the challenged evidence has “become so attenuated as to dissipate the taint.” State v. Jenkins, 340 So.2d 157 (La.1976); Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 267, 84 L.Ed. 307, 312 (1939).

We believe that the affidavit for the search warrant was sufficiently attenuated from the trespass onto Roubique’s property because the affidavit contained facts from an independent source which was not tainted by the trespass.

After the trespass, the second confidential informant gave Barnette information which was summarized in the affidavit and which clearly indicated probable cause to support the warrant. The informant described the trailer and its location, and the description corroborated the information Barnette had obtained from Gulf States Utilities. On the whole, the information obtained by Barnette through the trespass was negligible.

Attenuation through an independent source was discussed by this court in State v. Marshall, 359 So.2d 78 (La.1978):

The rule which supports the views expressed here is not new. It was recognized in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), almost sixty years ago. There it was said that facts learned as a result of information obtained in an illegal search do not become sacred and inaccessible by reason of such illegality, and that if knowledge of them is gained from an independent source, they may be proved like any others. Adhering to the views expressed in that case, courts in a number of cases have held or recognized that the “fruit of the poisonous tree” doctrine excludes evidence obtained from or as a consequence of an unlawful search and seizure but that doctrine does not require the exclusion of such evidence when knowledge thereof can be attributed to an independent source. United States v. Avila, 227 F.Supp. 3 (D.C.Cal. 1963); State v. O’Bremski, 70 Wash.2d 425, 423 P.2d 530 (1967); 43 A.L.R.3d 399. See also this Court’s decision in State v. Anderson, 358 So.2d 276 (La.1978).

For these reasons, we believe the Trial Judge correctly denied Roubique’s motion to suppress the evidence. The Trial Judge clearly noted his concern about the officers’ trip down Roubique’s private drive, but he concluded that there were other independent sources of the information in the affidavit. We agree.

Roubique also argues that because there were material omissions from the affidavit, the affidavit is null. Although Bar-nette’s affidavit did not disclose details of his entry onto the property, the omission of those details cannot be construed as a malicious or intentional misrepresentation by Barnette. Affidavits, by their nature, are brief, and some factual details must be omitted. Unless the omission is willful and calculated to conceal information that would indicate that there is not probable cause or would indicate that the source of other factual information in the affidavit is tainted, the omission will not change an otherwise good warrant into a bad one.

These assignments are, therefore, without merit.

ASSIGNMENTS OF ERROR NOS. II, III, IV, YII AND VIII

Roubique now argues two reasons why the affidavit did not show probable cause: he contends, first, that neither of the confidential informers was reliable, and second, even if they were reliable, the information which they gave was not because it was stale.

In State v. Paciera, 290 So.2d 681, 685 (La.1974), this court stated:

If we can deduce a rule from these eases, it is this: The affidavit submitted to the magistrate may be based entirely upon hearsay, but, if so, it must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him. Factors which support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the credibility of the information report include (a) direct personal observation by the informant, or (b), if the information came indirectly to the informant, the reasons in sufficient factual detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly obtained information. See State v. Link-letter, 286 So.2d 321 (La.1973).

In the instant case, the reliability of Officer Phares’s informant was established by the officer’s statement that his informant had previously supplied information which had led to several arrests, even though those arrests were years before. Additionally, Phares’s informant was independently corroborated by Barnette’s confidential source who also gave information about Roubique’s drug activities.

As to the reliability of the information given by the informants, Barnette’s informant observed the marijuana while he was inside the defendant’s trailer, while Phares’s informant’s information was corroborated by Barnette’s. The two independent sources corroborated each other and support the conclusion that their information was accurate. State v. Paciera, supra.

The information supplied by the informants was not stale. The affidavit indicated that on March 18, 1981, the very day the warrant was executed, Barnette’s informant had observed in the trailer what was described by Roubique as cocaine and marijuana, and this information affords a reasonable basis for the conclusion that the drugs would not be disposed of before a search could be conducted. State v. Boneventure, 374 So.2d 1238, 1239 (La.1979).

Other issues argued in these assignments of error involve settled principles of law definitively decided by this Court.

ASSIGNMENT OF ERROR NO. IX

In this assignment, Roubique asserts that the Trial Judge erred in imposing a sentence which is excessive under the circumstances, and argues that the Trial Judge failed to utilize the sentencing guidelines of La.C.Cr.P. Art. 894.1 when he imposed sentence.

Roubique’s sentence cannot by any standard be considered severe. He pleaded guilty to possession with intent to distribute forty-eight pounds of marijuana, the maximum sentence for which is imprisonment at hard labor for fifteen years and a fine of $15,000.00. Roubique was sentenced to serve five years at hard labor, but that part of the sentence was suspended. Roubique’s $5,000.00 fine was more than reasonable; he had $8,585.00 cash in his trailer. Moreover, the special conditions of his probation reasonably relate to his rehabilitation.

Under La.C.Cr.P. Art. 894.1, the Trial Judge must state for the record the considerations taken into account and the factual basis for his conclusions in imposing sentence in order to insure that each sentence imposed is individualized to the offender as well as to the offense. State v. Jackson, 360 So.2d 842 (La.1978).

Here, although the Trial Judge did not enumerate each of the statutory guidelines, he explained on the record his reasons for imposing the sentence and the special conditions. He alluded to Roubique’s character, his personal history, and his potential for rehabilitation before sentencing him. This was sufficient to particularize the sentence of the defendant and to comply with the sentencing guidelines of Art. 894.1.

We, therefore, affirm defendant’s conviction and sentence.

AFFIRMED.

DENNIS, J., concurs.

       Judges William H. Byrnes and David R.M. Williams of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Pro Tempore, with Chief Justice Dixon and Associate Justices Calogero, Dennis and Watson.


author:
R. M. DAVID WILLIAMS, Justice Pro Tem.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Herman BILLIOT.
    No. 82-KA-0210.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    Rehearings Denied Nov. 19, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Patrick Leitz, William C. Credo, Asst. Dist. Attys., for plaintiff-appellee.
    William Noland, Lawrence J. Boasso, New Orleans, for defendant-appellant.
   R. M. DAVID WILLIAMS, Justice Pro Tem.

This is an appeal from the conviction of defendant Herman Billiot, of second degree murder. Defendant was indicted and tried with one John 0. Shilling on one count of first degree murder, a violation of La.R.S. 14:30, committed on or about February 20, 1981. They were tried together before a twelve member jury. Defendant Shilling, whose appeal, if any, is not presently before this court, was found guilty as charged and sentenced to life imprisonment. Defendant Billiot was found guilty of second degree murder and was later sentenced to the mandatory term of life imprisonment without benefit of parole, probation or suspension of sentence. Defendant Billiot now urges five assignments of error. The principal issue we are concerned with is whether the trial court erred in admitting the defendant’s inculpatory statement absent the required statutory notice (La.C.Cr.P. art. 768).

This case arises from a homicide committed by defendant Herman Billiot and a co-defendant John 0. Shilling in late February, 1981. Through the testimony of two female eyewitnesses, it was proven that Bil-liot, Shilling and another unidentified male were out on the town visiting various Gret-na and Marrero, Louisiana, nightspots. Late in the evening they met with Pamela LeBlanc at one of these nightspots and still later met with Stephanie (Penny) Plaisance at another nightspot. This group went to yet another bar where Ms. LeBlanc met the victim, James Stache. After they had all consumed some unknown quantity of beer, the party of six left in Shilling’s automobile traveling towards Lafitte, Louisiana. The unidentified male passed out in the car and remained unconscious for the remainder of the night. On the way to Lafitte, in the early pre-dawn hours, Shilling stopped his automobile twice, presumably so he and the others could answer the call of nature. The first place he stopped was too well lit and there were too many people nearby watching another car on fire. Shilling then drove down the road a little further and stopped a second time. Billiot, Shilling and the victim, with the help of the defendants got out of the car and walked about ten (10) feet from the side of the vehicle. Billiot and Shilling then began to beat and kick the victim, both pulling knives to cut and stab him. The defendants beat the victim senseless and robbed him of $30.00. Billiot and Shilling then returned to the others and drove away to Shilling’s residence in Lafitte, leaving the victim for dead on the side of the road. Soon after arriving at his residence, Shilling and Billiot left the two women and returned to the scene of the initial attack to find Shilling’s lost knife. When they arrived, they found the missing knife and the victim, still alive, trying to hitchhike.

The defendants put the victim into their automobile and drove a little further down the road to a more secluded spot. They dragged the victim from the back seat out to the edge of a bayou; each of them punching the victim in the throat, Billiot first, then Shilling, whereupon Shilling then slit the victim’s throat with his knife; pushed his head under water and stood on him until the victim eventually drowned. The defendants returned to Shilling’s residence, to pick up the two women and take them home, telling them how they had finished off the victim. Shilling also threatened the women with death if they told anyone about the killing. It is this statement of the details of the second attack on the victim, by Shilling, made to the women which forms the basis of Billiot’s appeal.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

Defendant Billiot contends the trial court erred in admitting his inculpatory statement absent advance notice as required by La.C.Cr.P. Art. 768. This article provides:

If the state intends to introduce a confession or inculpatory statement in evidence, it "shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so, a confession or inculpatory statement shall not be admissible in evidence.

The state used the testimony of two witnesses to introduce inculpatory oral statements made by the defendants Billiot and Shilling. The first testimony complained of was:

“Q. Did Herman Billiot say anything?
A. He said that he punched him [the victim] once in the throat and then John [Shilling] took over.” (R.Tr. p. 448)

This statement was made as the defendants returned to Shilling’s trailer after having killed the victim. The evidence shows that the defendants started talking about what they had done before they got in the car to take the two witnesses home. The evidence shows that it was made voluntarily and without having been asked.

The record shows the state did not provide defendant Billiot with any notice of its intent to use this statement allegedly made. Absent such notice, there are two exceptions, the doctrines of res gestae and statements against interest, which will excuse the lack of notice of intent to use an incul-patory statement.

The trial court ruled that the statement made by Billiot was admissible as part of the res gestae and that notice of intent to introduce the statement pursuant to Art. 768, was unnecessary.

The purpose of Art. 768, is to avoid surprise and to allow adequate time for preparation of a defense. State v. Thomason, 353 So.2d 235 (La.1977). A defendant should be given a fair opportunity to plan or present his defense in light of such extremely damaging evidence. State v. Turner, 337 So.2d 455 (La.1976). However, a defendant is not entitled to prior notice of his inculpatory statement, which is part of the testimony of a witness, where that statement is part of the res gestae. State v. Kimble, 407 So.2d 693 (La.1981); State v. Hennigan, 404 So.2d 222 (La.1981); State v. Lawson, 393 So.2d 1260 (La.1980). Defendant argues that the statements were made approximately an hour and a half after the homicide at a different location from the murder (R. Tr. p. 434, 501, 531). Therefore, the defendant maintains the statement does not form part of the res gestae. On the other hand, the state contends that in spite of the alleged one and one-half hour time interval, the record clearly indicates that these actions constituted one long tragic chain of events, without interruption and res gestae is applicable.

The amount of time that elapses between the statement and the occurrence of the crime is not the sole consideration of res gestae. The doctrine of res gestae includes not only spontaneous utterances and declarations made before and after commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed before, during or after the commission of the crime if the continuous chain of events is evident under the circumstances. La.R.S. 15:448; State v. Molinario, 383 So.2d 345 (La.1980); State v. Drew, 360 So.2d 500 (La.1978), cert. den., 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25 (1979), and cases cited therein.

It appears that the inculpatory statement was probably made within an hour after the crime was committed (R. Tr. p. 432 and 505). However, it does not appear that this statement should have been considered part of the res gestae. State v. Gautreaux, 377 So.2d 289 (La.1979). In Gautreaux, a statement by the defendant that he had killed the victim was made between 10 and 30 minutes after the killing was held not to be part of the res gestae, and was improperly admitted due to the failure of the state to provide the Article 768 notice of intent. We think, that in the instant ease, where defendant’s statement was made anytime up to an hour after the homicide, it does not amount to res gestae on these facts. However, we are inclined to admit the inculpatory statement, as harmless error, since the evidence of guilt is overwhelming.

We have held that where written notice is not provided under Article 768, the admission of evidence in an inculpatory statement is error; however, where there is overwhelming evidence of defendant’s guilt, the error is harmless. State v. Smith, 401 So.2d 1179 (La.1981). So too, in Gau-treaux, supra, we found the error to be harmless, in that Gautreaux’s rights were not substantially prejudiced by the introduction of the inculpatory statement. The other evidence pointing to Gautreaux’s guilt was clearly overwhelming.

Defense counsel does not explain what he would have done differently in presenting a defense had he known of the inculpatory statement by the defendant. It appears that there was overwhelming evidence against the defendant, even without the statement. The state, of course, had no direct evidence that when the defendant returned to the scene with Shilling he also participated in the final savage beating of the victim. The eyewitness accounts of Pamela LeBlanc and Stephanie Plaisanee established, however, that defendant had participated in the first attack on the victim, stabbing him repeatedly and then bashing his head against the car. When Billiot and Shilling dropped the women off at the trailer the defendants returned to the scene of the homicide to look for Shilling’s lost knife. The female witnesses had already seen defendants beat, stab and bash the victim, now they saw Billiot leave and return with Shilling. Even without the incul-patory statement the other evidence is abundant. A rational fact finder could readily conclude from this evidence that defendant had the specific intent to kill or inflict great bodily harm upon the victim and was at least a principal to the actions of Shilling.

The second inculpatory statement allegedly made was introduced into testimony by the second female witness, Stephanie Plaisance. The statement introduced was that made by co-defendant John Shilling:

. “Q. Then what happened?
A. They [John Shilling and Herman Billiot] took us to John’s trailer and then John locked the phone up in the bedroom and told us that if we would leave that he would kill us and we didn’t leave. Then him and Herman left and when they came back it was almost daylight and they took me home. He stopped at a gas station and then he pulled over to the side of the road and he wanted to cut my throat and Pam told him that he wasn’t going to do that to me and then we left and him and Herman talked about what happened when they went back to get John’s knife and he said that he cut the guy’s Adam’s apple out and he stabbed him in the heart and stepped on him underneath the water until he couldn’t see no bubbles coming up and he was laughing like it was a joke and then Herman started laughing and they dropped me off about three blocks from my house.. .. ” (R.Tr. p. 501-502)

Defendant Shilling was notified of the state’s intent to introduce this statement. For the reasons stated above, we find that this statement, while not res gestae, is harmless in light of all the other evidence which is indicative of Billiot’s overwhelming guilt.

We will now consider defendant Bil-liot’s argument that the trial court erred in allowing into evidence hearsay testimony concerning a co-defendant’s inculpatory statements which tended to cast some degree of guilt on him. We note the passage alluded to in counsel’s brief was one elicited from the witness in an examination pertaining to the admissibility, as a whole, of that witness’s testimony. The passage was recorded while the jury was removed from the courtroom. (R.Tr. p. 429-437). An objection by defense counsel was made to the admissibility of such testimony which might inculpate his client, Billiot, but the objection was overruled.

Counsel further made a motion to limit the examination of the witness to subjects which did not inculpate co-defendant Billi-ot. This motion was granted and complied with by the state.

Defendant now argues that, to the extent that such testimony, which was excluded, implicated Billiot, it was inadmissible under Bruton v. United States, 391 U.S. 123, 124, 88 S.Ct. 1620, 1621, 20 L.Ed.2d 476 (1968). We find no merit in this contention.

The following statement is the passage actually made in front of the jury:

“Q. What did John 0. Shilling tell you he did?
A. He told me he punched the guy in the throat and the guy was still breathing and he wouldn’t go down and he took his knife and slit his throat and put his head under water and watched the bubbles come up and laughed about it.
Q. What kind of disposition did he have when he was telling you this, was he serious?
A. He was serious, but he thought it was funny. (R.Tr. p. 447-448)

It is obvious that no implication of Billiot was made by admitting this testimony, and it is evident that it was not improperly admitted under Bruton, supra.

None of the remaining assignments present reversible error. Our discussion of these does not establish new rules of law, alter or modify an existing rule, involve a legal issue of continuing public interest, or criticize existing law. Therefore, our disposition of the balance of defendant’s assignments of error will be set forth in an unpublished, but publically recorded, appendix to this opinion.

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

CALOGERO, J., concurs.

WATSON, J., concurs in the result.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

I agree that the inculpatory statement made by the defendant does not form part of the res gestae of the charged offense. However, I do not think that its introduction without a prior warning by the prosecution constituted harmless error. This case differs substantially from State v. Gautreaux, 377 So.2d 289, 291 (La.1979). In Gautreaux, the statement introduced merely confirmed what other eyewitnesses had personally observed and testified to— that the defendant had participated in the fatal attack upon the victim. In the present case, the witnesses were unable to testify that the defendant participated in the fatal attack. They could only testify that he participated in the preliminary assault. This fact makes the inculpatory statement a critical piece of evidence in the state’s case against defendant. Without prior notice, it should not have been introduced. La.Code Crim.P. art. 768.

       Judges Charles R. Ward, Jr., William H. Byrnes, III and David R.M. Williams of the Court of Appeal, Fourth Circuit, participated in this de-cisión as Associate Justices pro tempore, joined by Chief Justice Dixon, and Associate Justices Calogero, Dennis and Watson.

      . Defendant’s other contentions lack any arguable merit and are treated in an unpublished appendix which is attached to this opinion and is made part of the official record in this case.


text:
    Mrs. George M. COX v. Mrs. Medorah Head SANDERS, Jerry Head Sanders and Thomas A. Sanders, Jr.
    No. 82-C-0482.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    Rehearing Denied Nov. 19, 1982.

      Larry Arbour, Blackwell, Chambliss, Hobbs & Henry, West Monroe, for applicant.
    George M. Wear, McKeithen, Wear & Burns, Columbia, for respondents.
   JOHN C. BOUTALL, Associate Justice Ad Hoc.

A land owner, Mrs. George M. Cox, brought suit against the owners of an undivided interest in the mineral rights, Mrs. Medora Head Sanders, Jerry Head Sanders and Thomas A. Sanders, Jr., seeking cancellation of all mineral servitudes affecting her property, based on the accrual of the liberative prescription of ten years non-use. Mrs. Cox also seeks damages and attorney’s fees because of the defendant’s failure to furnish her a recordable act evidencing the extinction of the servitudes within thirty (30) days after her written demand as required by LRS 31:206-207.

The trial court ordered cancellation of all existing servitudes affecting plaintiff’s property but rejected the claim for attorney’s fees. The Court of Appeal, Second Circuit, affirmed, Cox v, Sanders, 409 So.2d 1257. We granted a writ of review. The basic question posed for our consideration is: Was the 10 year period of non-use of a mineral servitude, for purposes of liberative prescription, interrupted by production pursuant to one co-owner’s granting of a lease, where the other co-owner in indivisión was not a party to the lease and rejected all benefits from it, but is also the land owner who granted the mineral servitude?

There is no issue between the parties as to the basic facts, nearly all of them being stipulated. The Coxes and the Sanders had been having a business relationship over a considerable period of time, when differences between them arose and became irreconcilable, causing this litigation. In 1961, plaintiff’s husband, George M. Cox, and Mrs. Sanders’ husband, Thomas A. Sanders, Sr., as co-owners in indivisión, conveyed certain lands in two separate deeds to D’Arbonne Development Corporation. In 1965, Cox and the present defendants, who succeeded to Thomas A. Sanders, Sr.’s, interest in the property, executed two other conveyances of certain other tracts owned by them in indivisión to the same corporation. In each of the four conveyances a mineral servitude, reserving to the grantors ownership in indivisión of all of the minerals was effected. The D’Arbonne Development Corporation was not completely successful and differences arose between the parties as to its operation. Consequently, in 1968 D’Arbonne Development Corporation reconveyed to the Coxes and the Sanders that portion of the property involved in the four earlier transactions which had not been sold to others. Several days later, on July 1, 1968, the Coxes and the Sanders voluntarily partitioned all of the lands owned in indivisión by them including those reacquired from D’Arbonne, each receiving land of equal monetary value, but not equal in acreage. That partition was only of the land itself and not of the minerals. As to the minerals, the parties expressly stated:

“It is understood and agreed, however, that no partition is made of the mineral interests and the parties shall continue to remain as owners in indivisión with respect to the oil, gas, and other minerals in, on and under the property herein partitioned.”

At this time, we should note that in the early 1960’s, George Cox and Thomas Sanders had executed an oil, gas and mineral lease in favor of Cardinal Drilling Company, which lease included the land in question here. Pursuant to that lease, the Cardinal Drilling Company had drilled 10 wells on the tract which produced gas until January, 1965. This lease was terminated prior to the voluntary partition of 1968. After the partition, Sanders’ successors leased their interest in the minerals to GMB Gas Corporation by act dated May 23, 1972. Cox and his wife refused to enter into any agreement with GMB as to their interest. Pursuant to this mineral lease, two wells that had previously been drilled by Cardinal on the surface of that part of the land acquired by the Sanders in full ownership in the partition were reworked and put into production from 1972 through 1977. The Coxes refused GMB permission to enter upon their portion of the land in order to rework the other eight wells which were upon the Coxes’ land. It is stipulated that the Coxes had no part in the lease, continuously refused to recognize any activity thereunder and received no payment of any kind in connection therewith.

After Cox refused to allow GMB the right to conduct drilling operations on his land, GMB filed suit for an injunction against Cox’s interference. Cox reconvened for judgment declaring the lease invalid and for an injunction against any further drilling on any part of the tract in which he was the co-owner of the mineral servitudes. The Court of Appeal, Second Circuit, granted Cox an injunction and declared the lease invalid in GMB Gas Corporation v. Cox, 340 So.2d 638 (La.App. 2nd Cir.1976). In 1977 the Sanders cancelled the lease with GMB.

Mrs. Cox is now the successor to all of the property and the rights formerly owned by her and her late husband. After defendants refused her written demands for the cancellation of all of the mineral servitudes affecting her property, she filed this suit. It is important to note that in this suit she is asserting her rights as a land owner against the owner of an undivided interest in a mineral servitude, and thus she is asserting rights on a different basis than those which she asserted in the prior case, GMB Gas Corporation v. Cox, supra, wherein she was asserting her rights as the co-owner of an undivided mineral servitude.

The first problem for our consideration is the applicability of the law to this case. By Act 50 of 1974 the Legislature of Louisiana enacted a Mineral Code to become effective on January 1, 1975. The Mineral Code was designed in large measure to supplant by way of codification the extensive jurisprudence that developed in this area of the law. This suit arose after the effective date of the Code, but the events which took place took place before the effective date of the Code in large measure. The Code itself provides (LRS 31:214) that the provisions of the Code shall apply to all mineral rights, including those existing on the effective date thereof, but that no provision may be applied to divest already vested rights or to impair the obligations of contracts.

In examination into the facts and circumstances of this case, as related above, show that most of the events took place in the 1960s and that the partition reserving the mineral rights of these parties took place in 1968. The lease by Sanders to GMB Gas Corporation took place in 1972 and the production from the wells was had in 1972 taking place both before and after the 1975 effective date of the Code, into 1977. The question here is whether that production interrupted prescription, and thus by the effective date of the Code, the rights of the parties had already crystalized and the activity relied upon for interruption had taken place, though still continuing. Certainly if the production prior to the effective date of the Code had not interrupted prescription under the existing law, the continuing production thereafter would be of no effect. See for comparison the case of Continental Group, Inc. v. Allison, 404 So.2d 428 (La.1981).

The Court of Appeal in its consideration of the issues discussed the prior jurisprudence and relied mainly upon the application of the Mineral Code concluding that under the Code a co-owner of a mineral servitude may not conduct operations without the consent of the other co-owner, that such use without consent of the co-owner was neither a use of the servitude nor a good faith operation which would interrupt running of the prescription of non-use as provided by Articles 29, 36 and 41. One of the judges dissented pointing out that the contest here is not really between co-owners of a single mineral servitude but between a land owner and one co-owner of the single mineral servitude and thus the articles of the Code relied upon by the majority were not applicable, and based his dissent upon the jurisprudence. The right sought to be enforced in this case, as is clearly demonstrated in the petition itself, is the right of a land owner to cancel mineral servitudes affecting his property. The servitude itself arises out of his grant as a co-owner of the land. Accordingly, we conclude that the controlling law is the pre-codal law applicable to the rights existing between land owner and mineral interest owner, and not between two mineral interest owners.

Reduced to their essence, the facts are that two owners of land, also owners of the minerals, partitioned the lands in kind but did not partition the minerals, agreeing instead “the parties shall continue to remain as owners in indivisión with respect to the oil, gas and other minerals in, on and under the property herein partitioned.” The effect of this is that each party received ownership of particular tracts of land burdened with a mineral servitude, and because the servitude is created by the owners of the estates upon which it is imposed, there is but a single servitude. As stated in Clark v. Tensas Delta Land Company, 172 La. 913, 136 So. 1 (La.1931), the co-owner of such a servitude owns not half the right to the minerals but the right to half of the minerals in the owner’s estate. The estate owner is obliged to permit the servitude owner to go upon the land and to explore for oil, gas and other minerals and to reduce them to possession, and account to the owner of the land for half.

These principles in Clark were restated and approved in the case of Starr Davis Oil Company v. Webber, 218 La. 231, 48 So.2d 906 (La.1950). After discussion of the nature of the grant of a mineral interest by a land owner who reserved the remainder of the mineral rights, the court stated (48 So.2d 907):

“Accordingly, since plaintiff, by virtue of the grant, acquired a right to go on the land and search for minerals, it is difficult to discern how this right was owned in common with the defendant landowners. The theory of plaintiff seems to be that, forasmuch as the right to search for minerals and reduce them to possession is not exclusive in view of the fact that the defendants, as landowners, may exercise the identical right (having retained an interest to one-half of the minerals), there is a limitation on the right accorded by the grant. But this supposition is founded on a false premise, i.e., a belief that there is co-ownership of a single right to explore for minerals, when in truth plaintiff was granted a whole and unencumbered right of exploration. The only limitation in the grant is that, if minerals are found, plaintiff is entitled to take but one-half. However, this does not in any way restrict its right to explore; the real right ceded by defendants.
The contention of plaintiff is not novel; it has been heretofore raised and found to be unsound by this court. In Clark v. Tensas Delta Land Co., 172 La. 913, 136 So. 1, 2, the landowner sued ...”

Similarly the court in Hodges v. Norton, 200 La. 614, 8 So.2d 618 (La.1942) pointed out that where the landowners established a servitude on one continuous tract that there was but one indivisible servitude and where drilling operations were conducted under a lease covering only an undivided mineral interest, that constituted sufficient use of the servitude to interrupt prescription. The case of Huckabay v. Texas Company, 227 La. 191, 78 So.2d 829 (La.1955) and Taylor v. Dunn, 233 La. 617, 97 So.2d 415 (La.1957) continued to maintain this principle.

Applying those principles to the facts of this case, we conclude that the Sanders were given the right by the landowner to explore and drill upon the partitioned lands and that the production obtained by the Sanders’ lessee was sufficient to interrupt prescription of Sanders mineral servitude for non-use. Indeed, we note an application of the same principles of law to somewhat similar facts in the case of Lowry v. MRT Exploration Company, 382 So.2d 1034 (La.App. 2nd Cir.1980). We pass to a consideration of how much of plaintiff’s land the servitude affects.

The production was not on a tract of land owned by Cox but on a tract of land owned by Sanders as a result of the partition. The parties by agreement have prepared a plat showing the boundaries of and delineating the ownership of the various tracts owned by the parties and in contention here. Some of the tracts which were partitioned by the parties are not at issue on this appeal because they are non-contiguous with the tract upon which the production was had, and the appellants have restricted their appeal to only those tracts which are contiguous to the production tract. The law was succinctly summed up in the case of Whitehall Oil Company v. Heard, 197 So.2d 672 (La.App. 3rd Cir.1967), at p. 675:

“Thus, for instance, a landowner cannot create a single servitude or mineral royalty right on two or more non-contiguous tracts; and if this is attempted by a single instrument, there are nevertheless as many servitudes or royalty interests as there are non-contiguous tracts of land. Continental Oil Company v. Landry, 215 La. 518, 41 So.2d 73; Calhoun v. Ardis, 174 La. 420, 141 So. 15; Lee v. Giauque, 154 La. 491, 97 So. 669. On the other hand, there is no limitation in the area or configuration of a contiguous mineral interest. Gulf Oil Corp. v. Clement, 239 La. 144, 118 So.2d 361; Lenard v. Shell Oil Co., 211 La. 265, 29 So.2d 844 (80,000 acres).”

Thus it follows that the interruption of prescription applied not only to the tract owned by Sanders upon which production was had but also upon the contiguous tracts owned by Cox. This includes the contiguous lands north of the Tennessee Gas pipeline as outlined on the plat as it is not separated by a non-owned strip. See Hunter Company, Inc. v. Ulrich, 200 La. 536, 8 So.2d 531 (La.1942).

Accordingly we hold that the judgment of the trial court and its affirmance by the Court of Appeal, Second Circuit, are in error insofar as those lands involved in the appeal are concerned, and we reverse the judgment of the trial court, in part, which ordered the cancellation of all mineral ser-vitudes, and it is now ordered, adjudged and decreed that there be judgment in favor of the defendants, Mrs. Medora Head Sanders, Jerry Head Sanders and Thomas A. Sanders, Jr., and against Mrs. George M. Cox recognizing that the mineral servitude owned by the defendants on the following described lands has not been extinguished by prescription and dismissing plaintiff’s suit for cancellation as follows:

A certain 400 acre tract of land in Ouachita Parish, Louisiana, described on a plat of J.C. Crawford, Civil Engineer, dated April, 1967, entitled “Plat Showing Property of George Cox and Tommy Sanders in Sections 8, 9, 13 & 25, T18N-R3E, Ouachita Parish, Louisiana” and filed in these proceedings identified as “P-10”, and which tract is described thereon as follows:
1) All of the land north of the Tennessee Gas Pipeline (except that 12.41 acre tract labeled “Benton Moore”);
2) The lands south of and contiguous to the Tennessee Gas Pipeline, which land is uncolored, bordered_ in green and has a bold printed “T-9” in the middle of said tract;
3) The land south of and contiguous to the Tennessee Gas Pipeline, on the ■ westerly edge of the plat, which land is colored YELLOW with ORANGE slash lines drawn through it, is bordered in ORANGE and which has the bold printed “T-l” and “T-2" in the middle of said tract.

REVERSED IN PART.

DENNIS, J., recused.

       Judge John C. Boutall of the Court of Appeal, Fifth Circuit, was appointed to participate in place of Justice James L. Dennis, recused.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Melvin J. WILLIAMS.
    No. 82-K-0084.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    Rehearing Denied Nov. 19, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Nancy Sharpe, Louise S. Korns, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   CALOGERO, Justice.

The matter presented in this appeal is whether a weapon seizure made during an investigatory stop was legal. That legality, in turn, rests upon whether at the time of the stop it was reasonable to suspect that the defendant was “committing, [had] committed or [was] about to commit a felony or a misdemeanor.” La.C.Cr.P. art. 215.1. Upon review, we determine that there was reasonable cause to stop the defendant to “demand of him his name, address and an explanation of his actions,” and that the seizure of the weapon thereafter was legal.

Defendant was charged by bill of information with possession of a firearm as a convicted felon in violation of R.S. 14:95.1. After the trial court denied his motion to suppress the evidence, he withdrew his former plea and entered a plea of guilty as charged, reserving his right to appeal the court’s ruling on the suppression issue. State v. Crosby, 338 So.2d 584 (La.1976). That same day, the trial court sentenced him to three years’ imprisonment at hard labor. Defendant now appeals his conviction and sentence to this Court, urging the single assignment of error filed below. Upon review we determine that the trial court was correct in its denial of the motion to suppress. We therefore affirm the defendant’s conviction and sentence.

The events which resulted in Williams’ arrest were the following: About midnight on April 14,1981, while on a routine patrol in an unmarked vehicle in the vicinity of the Lafitte Housing Project, Officers Win-inger, Kuhn, and Gifford of the New Orleans Police Felony Action Squad saw a car parked in the 1800 block of Orleans Avenue and occupied by two men, with three men standing outside the car on the passenger side. After circling a few blocks, the officers returned, parked about one hundred yards behind the vehicle to observe the group for five or ten minutes. During this brief surveillance, the officers saw at least one of the men reach his hand into the car and then retract it in a manner which prompted the officers to suspect that a drug transaction was taking place. Officers Kuhn and Wininger neared the scene in the patrol car; Officer Gifford approached on foot. Thereupon the three persons standing by the ear started walking away very quickly, leaving the defendant seated at the wheel with a passenger next to him in the front seat. One of those leaving on foot put his hand to his mouth and started swallowing something. Officer Gifford ordered the three men to stop. Simultaneously, the defendant started his car in an apparent effort to leave the scene. Officer Kuhn pulled the police car in front of the defendant’s vehicle, preventing his departure. Officers Kuhn and Wininger exited their car, identified themselves and asked the defendant and his passenger to get out of the car. As the passenger did so, Officer Wininger saw a revolver on the floorboard of the car, protruding halfway from under the front seat. He seized it. When it was determined that the gun belonged to Melvin Williams and that Melvin Williams was a convicted felon, he was arrested and charged with violating La.R.S. 14:95.1.

The defendant contends in this appeal that the trial court committed reversible error, because of the Fourth Amendment, in finding that the police officers had reasonable cause to make the stop. We do not agree.

To assess the validity of an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and its Louisiana statutory equivalent, C.Cr.P. 215.-1, the critical inquiry focuses on the knowledge in the officers’ possession at the time of the stop and whether that knowledge constitutes reasonable cause for such a stop.

On the question of reasonable cause, we said in State v. Edsall, 385 So.2d 207 at 209 (La.1980):

Reasonable cause for an investigatory stop or detention is something less than probable cause. Nevertheless, it requires the detaining officer to have articulable knowledge of particular facts sufficient reasonably to suspect the detained person of criminal activity.

In this case, the police did not have reasonable cause to make an investigatory stop when they first moved into the 1800 block of Orleans Avenue. Three men gathered around a car parked at the curb in the 1800 block of Orleans Avenue near midnight, one of them reaching inside momentarily, provided little more than a “hunch” on the part of the officers that a drug transaction had taken place. Mere suspicious activity is not a sufficient basis for police interference with an individual’s freedom. Recent cases of this Court which exemplify this principle include State v. Truss, 317 So.2d 177 (La. 1975); State v. Finklea, 313 So.2d 224 (La. 1975) and State v. Saia, 302 So.2d 869 (La. 1974).

In Truss, the detention was held to be improper because the only articulable facts supporting it were that Truss, a young seaman, “got a very startled look on his face, ‘moved back a little’ and ‘continued on down the platform of the bus station,’ when he saw the police.” 317 So.2d at 178.

In Finklea, supra at 226, citing Saia, supra, we found an investigatory stop was illegal because

[t]he police had no information of any crime — only that a light colored Cadillac with loud mufflers had acted suspicious on a country road, [sic] ... The only incident noted by the State and the trial judge which occurred before the defendant was stopped and handcuffed (arrested) was the “flight.” Flight alone, under these circumstances, cannot justify an arrest.

In Saia the stop was held to be invalid because the officers acted before they saw the glassine envelope in the defendant’s hand. In essence they approached her because' she had exited a residence the police suspected was an alleged drug outlet, had “put her hand inside the waistband of her pants and had turned around and walked back toward” the residence she had just left. (Emphasis in original.) 317 So.2d at 870.

More recently we have determined that, on the one hand, the police may engage anyone in conversation, and the mere incident of an officer’s encountering an individual in a public place does not of itself restrain that person’s freedom to walk away. State v. Duplessis, 391 So.2d 1116 (La.1980). On the other hand, officers may not stop or forcibly detain a person or approach citizens “under circumstances that make it seem that some form of detention is imminent unless they have probable cause to arrest the individual or reasonable grounds to detain the individual.” State v. Duplessis, supra at 1117, quoting Saia, supra at 873.

In this case, the officers did not detain any one of the group of five on the simple strength of what they had seen just before approaching the group. Rather the detention took place when simultaneously Officers Wininger and Kuhn blocked the departure of defendant’s car as Officer Gifford ordered the three pedestrians to stop. This event, or dual stop, took place after the trio hurriedly walked away as Officer Gifford approached, after one of their number went to his mouth with a substance which he swallowed and after the defendant on sight of the officer, turned on the ignition and attempted to leave in his car.

We find these circumstances are more closely akin to those in our jurisprudence where we have upheld the investigatory stop. State v. Wade, 390 So.2d 1309 (La.1981); State v. Cook, 332 So.2d 760 (La.1976).

The pertinent facts in Wade, supra at 1310 were as follows:

On January 24, 1979, at approximately 8:10 p.m., two plainclothes police officers were patrolling the New Orleans French Quarter in a blue and white “unmarked typical Ford LTD, the type police use”. The officers observed the defendant, Robert Wade, walking in a hurried manner and continually turning his head “as if looking for someone”. The officers decided to keep Wade under surveillance for a few minutes as they approached him from the rear in their vehicle. As the car drew nearer to Wade, he caught sight of it and immediately began to run. The officers felt that Wade’s actions indicated that he had just perpetrated a crime, so they decided to question him. The officers raced their vehicle until they had pulled alongside Wade. At that time, they stopped and jumped out of their vehicle, identified themselves as police officers, and blocked Wade’s path, thereby stopping him.

In Cook, supra at 763:

[ajbout 9:00 p.m. in the evening, a police officer in his unmarked vehicle was maintaining a surveillance of an area in which robberies and purse-snatchings occurred nightly. He saw the defendant Cook, otherwise unknown to him, standing with his back against the corner of a building. Cook peeked surreptitiously around it several times, apparently looking at some pedestrians waiting some ten feet away (around the corner) at a bus stop.

This Court concluded in the Cook case that:

[t]he suspicious conduct occurred at night in an area of nighttime robberies and purse-snatchings. The conduct in question was consistent with an intention to commit this type of crime. The officer was reasonably entitled at that time to question Cook and to make an investigatory stop or detention for that purpose.

We conclude, therefore, in this case, that given the sudden departure of the trio at the approach of the police, given the furtive gesture of one of them and the coincident attempt at departure by defendant in his vehicle, the officers’ hunch had flowered into reasonable suspicion, based on articula-ble facts that the defendant was “committing, [h]ad committed, or [was] about to commit a felony or a misdemeanor.” At that point the officers were entitled to demand of defendant “his name, address and an explanation of his actions.” La.C.Cr.P. art. 215.1.

In conjunction with an investigatory stop, a police officer may conduct a limited, self-protective search for weapons (usually a “pat down”). La.C.Cr.P. 215.1; Edsall, supra; Terry, supra. In this ease, Officer Wininger saw a weapon on the floorboard of the car when the passenger exited. Although the officers then removed defendant from the car, considering the time and circumstances of the confrontation and the fact that the officers were outnumbered, it was not unreasonable for them to have taken hold of the gun for their own self-protection.

Here, as in State v. Reed, 388 So.2d 776 at 778 (La.1980) “[t]he exposed weapon was a source of potential danger to the officers’ safety ... [and] it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” [citation omitted.]. Accordingly, the firearm discovered during the course of the investigatory stop was lawfully seized.

Decree

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

AFFIRMED.

DENNIS, J., concurs.

DIXON, C.J., respectfully dissents believing that the police had nothing but suspicion when they stopped defendant’s car.

WATSON, J., dissents, believing there was no reasonable suspicion under the facts.


author: BLANCHE, Justice.

text:
    William ROBERTSON and Vicki C. Robertson v. GULF SOUTH BEVERAGE, INC.
    No. 82-C-0640.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    Supplemental Opinion Oct. 29, 1982.
    Rehearing Denied Nov. 19, 1982.

      D. Bert Garraway, Bart Eaton, R. Bruce Maemurdo, Percy, Macmurdo & Eaton, Baton Rouge, for applicant.
    Charles A. O’Brien, III, Franklin, Moore & Walsh, Baton Rouge, for respondents.
   BLANCHE, Justice.

This suit arose out of an incident which occurred on April 22,1978 when a 32 ounce returnable Pepsi-Cola bottle allegedly exploded and caused a serious injury to the wrist and hand of the plaintiff, Vicki C. Robertson. The bottle in question was purchased the day before the incident by plaintiff William Robertson and placed on the floor of the plaintiffs’ pantry where it remained until the injury-causing incident the next day. At trial, Vicki testified that she opened the pantry door to retrieve a can of Crisco shortening when she suddenly felt a “sharp sting” in her left wrist and noticed blood spewing from a deep cut. As a result of the injury, which damaged a major nerve innervating her left hand, Vicki has a permanent claw-deformity and a 40 percent disability in the use of the hand. Before the accident, Vicki was employed by the State as a typist.

The critical issue before the trial court was whether the bottle had spontaneously exploded or whether some external blow to the bottle caused the glass to fail. The trial court dismissed the plaintiffs’ suit, finding as a matter of fact that the bottle failed as a result of an external blow of significant force and that the bottle did not spontaneously explode due to some internal pressure. The court of appeal affirmed, adopting as its opinion the written reasons assigned by the trial judge. In our opinion, it is not necessary for us to decide whether the bottle exploded spontaneously or whether it exploded as the result of some external force. We find that the mere fact of the explosion under the circumstances of this case made the product unreasonably dangerous for normal use. Accordingly, we reverse.

As products liability law in the area of “exploding bottles” developed, the doctrine of res ipsa loquitur was applied to obviate the need of the plaintiff to prove the details of the manufacturer’s negligence. The doctrine afforded the plaintiff with a rebut-table presumption that the explosion resulted from an inherent defect in the bottle or from an improper charging of the contents. However, it was necessary for the plaintiff to show a reasonable certainty that the bottle had not been tampered with and that all reasonable possibility of accidental breaking from an external cause had been eliminated. Ortego v. Nehi Bottling Works, 199 La. 599, 6 So.2d 677 (La.1942); Centineo v. Anheuser-Busch, Inc., 276 So.2d 352 (La.App. 4th Cir.1973); LaFleur v. Coca-Cola Bottling Co. of Lake Charles, Inc., 195 So.2d 419 (La.App. 3rd Cir.), writs denied, 250 La. 488, 196 So.2d 802 (La.1967); cf. other jurisdictions, Groves v. Florida Coca-Cola Bottling Co., 40 So.2d 128 (Fla.1949); Steele v. Royal Crown Cola Bottling Co., 335 So.2d 586 (Fla.App. 3rd Dist.), cert. den., 345 So.2d 426 (Fla.1976). Where it was established that the bottle fell or was dropped, or that it was knocked over or struck at or about the time it exploded or broke, then the fall or the blow would be considered the cause of the explosion and no presumption would arise that the occurrence was caused by a defect in the bottle or its contents. Centineo v. Anheuser-Busch, Inc., supra; Wiley v. Weingarten, 205 So.2d 138 (La. App. 3rd Cir.1968); LaFleur v. Coca-Cola Bottling Co. of Lake Charles, Inc., supra.

This line of cases ignored the fact that it is reasonably foreseeable that these returnable glass bottles might be subjected to minor knocks in the course of normal use. Instead of focusing the inquiry on whether the fact of the explosion under the circumstances of each case made the product unreasonably dangerous for normal use, these cases focused on whether the explosion was brought about by some intervening cause such as the contributory negligence of the plaintiff or the negligence of some other person. We consider that these types of cases are better analyzed under the test set out in Weber v. Fidelity & Casualty Insurance Co., 259 La. 599, 250 So.2d 754 (1971).

In Weber, we focused the inquiry in a products liability case on whether the product was defective. In order to recover from the manufacturer of a product, the plaintiff had to prove, first, that the product was defective, and second, that the defect was the proximate cause of the injury. We held that a product is defective when it is unreasonably dangerous for normal use. 250 So.2d at 755; cf. Restatement .of Torts (2nd) § 402A (1965); cf. other jurisdictions, Venezia v. Miller Brewing Co., 626 F.2d 188 (1st Cir.1980); Sochanski v. Sears, Roebuck and Co., 621 F.2d 67 (3rd Cir.1980).

In this case, the evidence was uncontra-dicted that the Pepsi bottle somehow came apart so violently that a piece of glass severed a major nerve in Vicki’s wrist. The principal focus of the defense was on the testimony of defendant’s expert witness, who testified that the cause of the explosion was a blow of some force to the side of the bottle. Notably, he could not testify definitively as to the degree of force which was applied.

Vicki testified that she only remembered reaching into the pantry for the can of Crisco which was on the floor in the general vicinity of the Pepsi bottle. She did not see or hear the bottle explode, but only felt a stinging sensation and saw blood spewing from a serious cut. Photographs in the record show that the can was found upright, half-way out of the pantry door. The remains of the bottle lay beside the Crisco can with pieces scattered about. This evidence is consistent, if the record is given a fair reading, with Vicki’s testimony that she reached into the pantry to retrieve the can but had to retreat to the sink when struck with a projectile-like piece of glass propelled from the exploding bottle.

It is not necessary for us to engage in fanciful conjecture as to whether or how hard Vicki may have struck the bottle with the Crisco can. A common-sense interpretation of the evidence would lead us to conclude that it is not improbable that Vicki may have struck the bottle with the can as she was removing it. However, that same common-sense approach would have to lead us to conclude that it is highly improbable that she could have struck the bottle hard enough to cause an explosion of sufficient force to cut her so deeply had the bottle not been unreasonably dangerous for normal use.

For these reasons, we find it unnecessary to decide whether the bottle exploded spontaneously or whether it exploded when struck. We do not hold that a person may never be barred from recovery by striking or dropping a bottle with a force sufficient to cause it to explode. The inquiry, in such cases, would always be whether the bottle was in normal use. Since all evidence indicates that her activity was not outside the scope of normal use, Vicki may not be said to have assumed the risk of any injury occurring as a result of the activity.

It is not inconceivable that persons may accidentally strike a bottle with some object or tip the bottle over onto its side during normal use, and we find that the fact of an explosion of the magnitude experienced in this case made this particular bottle unreasonably dangerous. The very essence of the Weber test requires that each case be taken on its own facts. The facts of this case mandate recovery for the plaintiffs.

DECREE

Accordingly, the judgments of the court of appeal and trial court are reversed, and judgment in favor of the plaintiffs, Vicki C. Robertson and William Robertson, is rendered by this court. Because the issue of the quantum of damages was not tried by the trial court, we must remand the case for a determination of those damages. REVERSED AND REMANDED.

MARCUS, J., dissents.

PER CURIAM.

As to the issue of quantum of damages, our decree did not effect a proper remand of this case. The case should have been remanded to the court of appeal, where the entire record had been lodged on appeal, for a determination on the merits. See Gonzales v. Xerox Corporation, et al., 320 So.2d 163 (La.1975). Therefore, rendering judgment in favor of the plaintiffs, Vicki C. Robertson and William Robertson, we remand the case to the court of appeal for a determination of the damages.

REMANDED.

MARCUS, J., dissents.