author: CALOGERO, Justice. DENNIS, J.,

text:
    STATE of Louisiana v. Thomas JOHNSON and Daniel B. Lomax.
    No. 82-K-1284.
    Supreme Court of Louisiana.
    Nov. 29, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John Craft, Michael Simpson, Asst. Dist. Attys., for relator.
    J.C. Lawrence, Gerdes, Valteau & Cade, New Orleans, for respondents.
   CALOGERO, Justice.

Should the trial judge have suppressed four tablets of diazepam (Valium) and a .38 caliber revolver seized by police officers incident to a warrantless arrest of Daniel B. Lomax for carrying a concealed weapon? Did the officers have probable cause to believe that Lomax had just committed the crime of carrying a concealed weapon so as to justify his arrest?

We granted the state’s application to review an adverse trial court ruling and to consider the foregoing questions.

The facts surrounding the initial arrest and search as related in the police officers’ testimony at the hearing on the motion to suppress are as follows: On February 26, 1982, at about 11:30 P.M. Officers Marino, Luther and Goode of the New Orleans Police Department were patrolling in the vicinity of South Rampart Street and Martin Luther King Boulevard in an unmarked police car. Officer Marino spotted two males (who turned out to be Daniel B. Lo-max and Thomas Johnson) exiting Pete’s Place, a bar which the officers knew to be “well known for narcotics traffic.” Officer Marino slowed the car almost to a stop and the two defendants crossed the street in front of the police car. Lomax approached the driver’s side of a vehicle, parked (to Marino’s right) facing the opposite direction. Officer Marino saw Lomax pull from his waistband a gun which, he acknowledged on examination by the court, had until then been “completely hidden to me.” He further acknowledged that he had no reason to believe that there was a gun on Lomax until Lomax took it out. Marino saw Lomax open the driver’s door and throw the revolver onto the front seat of the automobile. At that point, the officers left their vehicle and approached the pair. Approaching Lomax, Officer Marino saw the revolver on the front seat of the car and seized it. He testified that he arrested Lomax for carrying a concealed weapon.

Noticing a bulge in defendant’s pocket and believing that he had “a right to search him [Lomax] completely,” Officer Marino started to search defendant’s pocket. Lo-max pushed the officer’s hand away, pulled out a yellow paper towel and dropped it and its contents to the ground. The paper towel contained four tablets of Valium, a Schedule IV narcotic. Officer Marino then placed Lomax under arrest for possession of the diazepam.

Officer Goode, who admitted that the arrest was prompted by Officer Marino’s observations, testified that the two defendants were seen to “ ‘[b]ee-line’ it across the street.” The trial judge evidently did not give weight to this testimony concerning “flight”. A fair reading of the record supports that conclusion since Marino, the officer whose observations alerted his fellow policeman, did not so testify.

The defendants’ motion to suppress both the .38 caliber revolver and the tablets of diazepam was granted by the trial court judge. She apparently relied principally upon State v. Bowen, 376 So.2d 147 (La.1979) and State v. Fluker, 311 So.2d 863 (La.1975), both of which held that a weapon must be concealed in its entirety on the body of the defendant in order to establish the crane of carrying a concealed weapon. Those opinions are distinguishable from the instant case both factually and legally. Both involved a conviction on the charge of carrying a concealed weapon. Fluker was a businessman, in his automobile, with a holstered pistol on his belt; Bowen, who carried the gun openly in his waistband, then placed it on a ledge beside him inside a restaurant, and then put it in his wife’s open purse, was dining at a hotel with his wife. In the instant case, Lomax was leaving a bar known for narcotics traffic with a companion late at night. This case, besides being factually distinguishable, did not involve a sufficiency question upon review of a conviction, but rather review of a trial court’s judgment granting a motion to suppress. Whether or not probable cause to arrest existed is the pertinent question here.

The standard required for a conviction is more stringent than that required to establish probable cause to arrest.

In determining whether reasonable cause for arrest exists, the rigorous proof required for conviction is unnecessary. Reasonable cause is something less and must be judged by the probabilities and practical considerations of everyday life on which average men, and more particularly, average police officers can be expected to act. (citations omitted) State v. Hall, 342 So.2d 616, 619 (La.1977), cert. denied 434 U.S. 846 [98 S.Ct. 149, 54 L.Ed.2d 112] (1977). See also State v. Marks, 337 So.2d 1177 (La.1976).

See also State v. Marks, 337 So.2d 1177 (La.1976). The measure of probable cause to arrest is not that a police officer have proof sufficient to convict. State v. Scott, 389 So.2d 1285 (La.1980). Probable cause is determined “by the setting in which the arrest took place, together with the facts and circumstances known to the arresting officer from which he might draw conclusions warranted by his training and experience.” (citation omitted) State v. Boyd, 349 So.2d 1256, 1258 (La.1977).

Probable cause for an arrest exists when facts and circumstances known to the officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in the belief that the person to be arrested has committed a crime. State v. Hathaway, 411 So.2d 1074 (La.1982). See also State v. Mosley, 390 So.2d 1302 (La.1980). Considering the circumstances, it must be more probable than not that the defendant’s activity consisted of criminal behavior. State v. Fauria, 393 So.2d 688 (La.1981). See also State v. Scott, supra; State v. Thomas, 349 So.2d 270 (La.1977).

After a review of the circumstances of this case — the late time of night, the location, the defendants’ exit from a place known to the officers to be a narcotics outlet, Lomax’s removing from his waistband a gun and tossing it into the front seat of the car in preparing to depart — we find that Officer Marino had reasonable cause to believe that it was more probable than not that Lomax had been carrying the weapon concealed on his person. Furthermore, that the officer could not positively testify that he saw the gun on the defendant, fully concealed or not before it was exhibited, does not negate Officer Marino’s reasonable belief under all the circumstances that just prior to Lomax’s pulling the gun out, it was concealed on his person.

We find therefore that Officer Marino had probable cause to arrest Daniel B. Lo-max for carrying a concealed weapon. The revolver and valium tablets seized incident to that valid arrest should not have been suppressed.

Decree

The trial judge’s ruling granting the motion to suppress is reversed.

JUDGMENT GRANTING MOTION TO SUPPRESS REVERSED; REMANDED.

DENNIS, J., dissents with reasons.

DENNIS, J.,

dissenting.

I respectfully dissent.

The observations by the officers — the defendant’s exit from a bar they suspected as a location of frequent drug traffic, defendant’s movement of a gun from a place not within their view, and the lateness of the hour — did not give rise to a reasonable belief that it was more likely than not that the defendant had intentionally concealed a dangerous weapon. La.R.S. 14:95. Consequently, the officers did not have probable cause to arrest the defendants for carrying a concealed weapon, See, State v. Fluker, 311 So.2d 863 (La.1975), and their arrest of the defendant without probable cause was illegal. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142. Since it is axiomatic that an incident search may not precede an arrest and serve as part of its justification, Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); State v. Greenwald, 369 So.2d 1317 (La.1979), the officer’s search of the defendant’s person cannot be justified as an incident to a lawful arrest.

The circumstances may have justified a stop and frisk if the officers could articulate specific facts from which they reasonably suspected that the defendant was engaged in a criminal activity and was armed and dangerous. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Cf. C.Cr.P. 215.1. However, the frisk must be limited to the outer clothing of the suspect to be valid as an exception to the warrant requirement. See, Adams v. Williams, supra, Terry v. Ohio, supra; La.C.Cr.P. 215.1. A stop and frisk of defendant’s outer clothing for weapons would not have revealed the diazepam. Thus, the search and seizure of the drugs on defendant's body were not lawful.

Accordingly, I respectfully dissent.

      . We denied the state’s application from the trial judge’s suppressing two Valium tablets taken in the search of Lomax’s companion, one Thomas Johnson.


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Joe WILLIE.
    No. 82-KA-0200.
    Supreme Court of Louisiana.
    Nov. 29, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John H. Craft, Leon Can-nizzaro, William R. Campbell, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    Dwight Doskey, Howard McCurdy, New Orleans, Orleans Indigent Defender Office, for defendant-appellant.
   MARCUS, Justice.

Joe Willie was indicted by the grand jury for aggravated rape in violation of La.R.S. 14:42. After trial by jury, defendant was found guilty as charged and sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant urges only one assignment of error on appeal.

Defendant contends that his conviction for aggravated rape cannot stand because the distinction between aggravated rape and forcible rape is unclear. He argues that the failure of these two statutes to distinguish the degree of criminality between aggravated rape as defined in La. R.S. 14:42(2) and forcible rape, La.R.S. 14:42.1 renders the statutory scheme unconstitutionally vague. In addition, he argues that since there is a genuine ambiguity as to the permissible sentence for specifically prohibited conduct, the lesser penalty should be imposed.

Having previously decided this issue adverse to defendant, we find no merit to this contention. In State v. Drew, 860 So.2d 500 (La.1978), cert. denied, 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25 (1979), the defendant contended that the trial judge erred in denying his motion to quash the indictment and motion in arrest of judgment on grounds that La.R.S. 14:42 was unconstitutionally vague and overbroad. He argued, as does defendant here, that the law was ambiguous because there was virtually no difference between the elements of the crime of forcible rape and the crime of aggravated rape with which he was charged. Relying on State v. Fletcher, 841 So.2d 340 (La.1976), we rejected this argument and held:

[La.R.S. 14:43.1] (now La.R.S. 14:42.1) merely created a lesser degree of the crime, permitting a responsive verdict, La.C.Cr.P. art. 814, subd. A(8) (as amended in 1975), to the charge of aggravated rape, La.R.S. 14:42. It does not, as defendant contends, repeal or make ambiguous the more serious offense of aggravated rape defined by Subsection (2) of the latter statute — punishing sexual intercourse without the lawful consent of the female since committed “Where [she] is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.” (Footnote omitted.)

Recently, in State v. Parish, 405 So.2d 1080 (La.1981) (on rehearing), we held that although the legal definition of aggravated rape as set forth in La.R.S. 14:42(2) is virtually identical to that of forcible rape (La. R.S. 14:42.1), a distinction can be made based on the “degree of force employed and the extent to which the victim resists.” We concluded that it was the legislative aim to divide the continuum of acts of coerced sexual intercourse into two categories, aggravated rape and forcible rape, thereby assigning to the jury the function of fixing the range of permissible punishment for convicted offenders by returning a verdict which appropriately fits the crime and the degree of force employed. Therefore, we noted that the question called upon us to decide was whether under the standard of appellate review set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), defendant actively desired to cause the specific results required by both the aggravated and forcible rape statutes and that the degree of force employed warranted punishment in the greater, rather than lesser, degree. In Parish, the jury returned a verdict of attempted aggravated rape; however, we concluded that the evidence did not constitutionally justify the jury’s election to return a verdict of aggravated rape rather than forcible rape, that is, the degree of force employed did not warrant punishment in the greater degree as attempted aggravated rape, but rather in the lesser degree as attempted forcible rape. Hence, following the dictates of State v. Byrd, 385 So.2d 248 (La.1980), we reversed the conviction and sentence and remanded the case to the district court with instructions to enter a judgment of conviction of attempted forcible rape and to impose a sentence for that crime.

In the instant case, defendant does not appear to contend, as did defendant in Parish, that there is insufficient evidence of the degree of force necessary to convict him of aggravated rape. Nonetheless, we will review the evidence adduced at the trial of this matter in order to determine whether the evidence constitutionally justifies the jury’s verdict of aggravated rape.

The victim and a companion were attending a conference in the City of New Orleans and were staying in separate rooms in a Bourbon Street hotel. After attending the day’s meeting followed by a social hour, dinner and entertainment, the two decided to retire for the night at approximately 11:30 p.m. They went to their rooms and each waited for the other to get out their room keys and the victim’s friend entered her own room first. The victim had her door half open when she was grabbed from behind around the neck by a man later identified as the defendant. She was told not to scream. Defendant threatened: “I’ve got a knife. If you cooperate you’ve got a chance. If not you’re a dead lady.” Despite this threat, she screamed and tried to place her foot in the door. She was kicked from behind forcing her into the room and the door was slammed. Her companion testified that she heard the scream and a door slam. She stepped back into the hall, hearing no further screams nor observing any disturbance, she dismissed the screams as noise from Bourbon Street, below her hotel room, and retired to bed.

As the victim was forced into the room, defendant choked her and pushed her onto the bed while continuously repeating his threats. He jumped on top of her and straddled her around the waist pinning her down with one hand around her neck. With the other hand, he searched her purse, removed a ring from her makeup case and emptied the belongings from her suitcase. He made the victim keep her eyes closed and with every attempt she would make to open them he would choke her and threaten to kill her. He then told her that he was a junkie and that she knew what a junkie would do for money. He asked her for drugs and she told him she had some medication in the bathroom. Defendant then dragged her to the bathroom while he searched through the victim’s medicine. He then brought the victim back to the bedroom and began to take her clothes off. He took his clothes off and began to force himself upon the victim. She pushed him and tried to keep him away but defendant knocked her down, used obscenities and again threatened to kill her unless he was satisfied. Defendant then raped the victim.

This ordeal lasted approximately two hours. During the rape, the defendant inflicted a large number of cuts, bruises and abrasions to the victim’s upper torso and face. These injuries were caused by defendant biting the victim on the breasts, choking her, and hitting her in the face. The victim testified that the defendant was able to rape her “because [she] couldn’t fight him. He was stronger than [her] and he was going to kill [her] and [she] believed that.” After defendant completed the rape, the victim was able to strike him on the head with a travel iron, escape from the room, and obtain help from another hotel guest who called the hotel security. Defendant was found by a hotel security guard unconscious and totally nude in the victim’s room.

Viewing the evidence in the light most favorable to the prosecution, we conclude that the jury could have found beyond a reasonable doubt that defendant raped the victim either under circumstances (1) where the victim resisted the act to the utmost, but her resistance was overcome by force (La.R.S. 14:42(1)) or (2) where the victim was prevented from resisting the act by threats of great and immediate bodily .harm, accompanied by apparent power of execution (La.R.S. 14:42(2)), with a sufficient degree of force to warrant punishment in the greater degree as aggravated rape rather than the lesser degree as forcible rape. Hence, the evidence constitutionally justifies the jury’s verdict of aggravated rape.

DECREE

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

      . La.R.S. 14:42 provides in pertinent part:
      Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
      (1) Where the victim resists the act to the utmost, but whose resistance is overcome by force; or
      (2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution; or
      (3) Where the victim is prevented from resisting the act because the offender is armed with a dangerous weapon; or ....

      . La.R.S. 14:42.1 provides in pertinent part:
      Forcible rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.

      .The penalty for aggravated rape is life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The penalty for forcible rape is imprisonment at hard labor for not less than two years nor more than forty years, at least two years of which must be without benefit of probation, parole, or suspension of sentence.


author: MARCUS, Justice .

text:
    STATE of Louisiana v. John PATTERSON.
    No. 82-KA-0357.
    Supreme Court of Louisiana.
    Nov. 29, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Mary Charlotte McMullen, William O’Hara, Asst. Dist. Attys., for plaintiff-appellee.
    John Wilson Reed, Glass & Reed, New Orleans, for defendant-appellant.
   MARCUS, Justice .

John Patterson was charged by bill of information with possession of cocaine in violation of La.R.S. 40:967. At his arraignment, defendant entered a plea of not guilty to the charge. Defendant then filed a motion to suppress. After a hearing, the trial judge denied the motion. Thereafter, defendant withdrew his former plea of not guilty and entered a plea of guilty as charged expressly reserving his right to appeal the court’s denial of his motion to suppress. Pursuant to La.R.S. 40:983, the trial judge placed defendant on probation for five years on the special condition that he pay $250 to the Criminal Court Operating Fund. Defendant was further ordered to pay court costs of $74.50 or in default thereof to serve thirty days in parish prison. On appeal, defendant relies on one assignment of error for reversal of his conviction and sentence.

Defendant contends the trial judge erred in denying his motion to suppress evidence seized pursuant to an invalid search warrant. He argues that the affidavit supporting the issuance of the search warrant contained misrepresentations and omitted material facts without which the affidavit did not recite facts sufficient to establish probable cause. He further argues that the affidavit contained intentional misrepresentations, thereby requiring that the warrant itself be quashed.

The search warrant in question was issued to search the premises located at 1574 Jefferson Avenue, Apt. D, New Orleans, Louisiana, for the purpose of seizing a “carpenters mallet, pry bar, one black leather brief case, personal papers in name of Julian G. Hillery.” It was issued upon facts recited in an affidavit by Officers Stephen Gordon and John Riviere. The affidavit was executed and the warrant was issued on June 10, 1981. The property seized pursuant to execution of the warrant at defendant’s residence at 1574 Jefferson Avenue, Apt. D, consisted of a small amount of cocaine and drug paraphernalia. The affidavit recited the following facts to establish probable cause for issuance of the search warrant:

(1) On 4-3-81 at about 1:30 PM the residence at 1911 Broadway Ave. belonging to one Julian Hillery was burglarized. Investigating Officer Sam Bua assigned to Unit 211 investigating the original incident noticed that entry was gained through the front door of the residence facing Broadway Ave. Officer Bua also noticed that the bedroom section of the residence was entered by the perpatrator(s) (sic) and that only certain drawers were tampered with by the perpatrator(s) (sic). Officer Bua at that time learned from the victim Hillery that the following items were taken as a result of the burglary:
1-Scotts International Stamp Collection-Part 1 — 1845—1938[;] 1-Scotts International Stamp Collection-Part 11 — 1939—1945[;] 1-Scotts International Stamp Collection-Part III — 1945—1949[;] 1-Scotts International Stamp Collection-Part IV-1949-1954[;] 1-Scotts International Stamp Collection-Part VI — 1964—1967[; and] one black leather brief case containing personal papers in the name of Julina (sic) G. Hillery.
(2) On 6-9-81 at about 10:55 PM the victim Hillary was confronted at his residence by one John N. Patterson WM 4-10-45 residing 1574 Jefferson Ave. Apt. D who was in possession of the previous described stamps. The subject Patterson at that time exchanged the stamps for one thousand dollars which was given him by the victim Hillary. Officers Rivi-ere and Gordon who had positioned them-seeves (sic) in the victims residence during the exchange confronted the subject Patterson thus effecting the arrest.
(3) The arrested subject, John Patterson, is a carpenter by trade and would have the type tools which were used to force entry into 1911 Broadway St. The door was forced open with a pry bar and what appeared to be a carpenters mallet. The NOPD Crime Lab took samples of the wood chips, and the pry marks made by the tools to be used for comparison if the tools are recovered.
(4) Officers therefore request that this warrant be issued in order that they may search the residence of Patterson in order to recover the pry bar and carpenters mallet. (Emphasis added.)

The following facts underlying the issuance of the search warrant were adduced at the hearing on the motion to suppress. On April 3, 1981, the residence of Julian Hillery located at 1911 Broadway in New Orleans was burglarized. The only things removed from the residence were six stamp books and a brief case containing personal papers. According to Hillery, entry was apparently secured by beating on the front door with a mallet until one of the panels split, permitting the door to be opened by the use of a key located on the inside of the door. Mr. Hillery testified that the only marks he observed on the outside of the door were “mallet marks”; he saw no pry bar marks. Officer Gordon, one of the affi-ants, testified that information in the affidavit was obtained from Hillery, the initial police incident report, and the crime scene technician report. However, the initial police incident report only indicated that entry was made through the front door “by some type of tool which was used to break out one of the panels.” The crime scene technician report gave no indication of the type of tool used or the nature of the damage to the front door (point of entry). The brief case and most of the papers were recovered about one week after the burglary and Hillery testified that he reported the recovery to Officers Gordon and Riviere. Gordon testified that he did not remember if Hillery had told him that his brief case and papers had been recovered; Riviere did not testify at the suppression hearing. About one month after the burglary, Hil-lery erected a large sign on his front lawn advertising a $1,000 reward for the return of his stamp collection, no questions asked, and listed his phone number. A large picture of the sign together with a story appeared in the local newspaper.

More than two months after the burglary (June 8, 1981), Hillery received a phone call from defendant concerning the reward. Defendant stated that he could probably get the stamp books back. Hillery indicated that he did not have the $1,000 at that time but would withdraw the money from the bank. Defendant indicated that he would call back later in the week. Hil-lery reported the phone conversation with defendant to the police.

On June 9 (the next day), defendant called Hillery again. He told Hillery that he now had the stamp books and made arrangements to bring them to Hillery’s residence in return for the $1,000 reward. He also told Hillery to leave the sign up in his yard for some time because he did not want the person from whom he had obtained the stamp books to know that they had been returned. He indicated that that person was the one who had broken into his (Hillery’s) house and was “crazy.” Officers Gordon and Riviere were present when Hil-lery received the phone call from defendant.

Pursuant to his second call, defendant came to Hillery’s residence and returned the stamp books, first giving him five books, and then, after receiving the $1,000 reward, told him that the sixth book could be found at a certain location around the corner. Immediately after this transaction, defendant was arrested by Officers Gordon and Riviere. At some point after his arrest, defendant informed the officers that he was a carpenter. Five or six hours after his arrest, the officers obtained and executed a search warrant at defendant’s residence as aforesaid.

Constitutional provisions insure a person from unreasonable search and seizure of his house, papers and effects. No such search or seizure shall be made except upon warrant issued upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. U.S. Const. Amend. IV; La. Const, art. 1, § 5. Conformably, our Code of Criminal Procedure in art. 162 provides in pertinent part:

A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.

We have held that probable cause exists when the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been committed. The judicial officer must be supplied with enough information to support an independent judgment that probable cause exists for the issuance of a warrant. State v. Mena, 399 So.2d 149 (La.1981). However, if unintentional misstatements are made by the affi-ants seeking to obtain a search warrant, these misstatements must be excised and the remainder used to determine whether or not the affidavit sets forth probable cause for issuance of a warrant. State v. Rey, 351 So.2d 489 (La.1977). Similarly, when the affiant omits material facts without an intent to deceive, the reviewing court must add the omitted facts to those originally included in the affidavit and retest the sufficiency of the showing of probable cause. State v. Lehnen, 403 So.2d 683 (La.1981).

In the instant case, the affidavit stated that the purpose for searching defendant’s residence was to seize a “carpenters mallet, pry bar, one black leather brief case, personal papers of Julian G. Hillery.” Among the items mentioned in the affidavit as having been taken during the burglary was a “brief case containing personal papers.” However, the brief case and most of the papers had already been recovered and this fact had been reported to the affiants. The affidavit further stated that entry was accomplished through a door which had been forced open “with a pry bar and what appeared to be a carpenters mallet” and that since the crime lab had taken samples of the wood chips and “pry marks” made by the tools, recovery of the “pry bar and carpenters mallet” were being sought for the purpose of comparison. Despite these recitations, there had been no information made available to affiants that entry had been made with a pry bar or of the existence of any pry bar marks on the door through which entry was made. In actual fact then, but not revealed to the magistrate, the only remaining purpose for securing a warrant to search defendant’s residence was to seize a “mallet.” Therefore, under Rey, supra, the misstatements concerning the brief case and pry bar must be excised.

As to the material omissions, the affidavit recites only that the victim was “confronted at his residence by ... [defendant] who was in possession of the previous described stamps.... [Defendant] at that time exchanged the stamps for one thousand dollars which was given him by the victim Hillary.” No mention was made about the large sign advertising the $1,000 reward for the return of the stamp collection, the phone calls, etc. Omission of these facts created an impression that defendant showed up at Hillery’s residence and demanded $1,000 for the stamp books. Hence, under Lehnen, supra, we must add these omitted facts to those originally included in the affidavit.

When the misstatements (missing brief case and use of a pry bar) are excised from the affidavit and the omitted facts (the reward, etc.) are added, we must retest the sufficiency of the showing of probable cause. Rey, supra; Lehnen, supra.

The only recited facts to establish probable cause that defendant committed the burglary were that he was a carpenter, he was in possession of the stolen stamp books, and the door (point of entry) had been forced open with what “appeared” to be a “carpenters mallet.”

First, we find no significant relationship between the fact that defendant was a carpenter and that the door (point of entry) had been forced open with a mallet. We do not consider a mallet to be a tool peculiar to that of a carpenter. Most people keep a mallet or hammer at their residence. Nor do we consider that the use of a mallet to force entry through a door is indicative of the method that a carpenter might use to gain entry. On the contrary, it would seem that a carpenter would more than likely use a more sophisticated method of gaining entry. Hence, the only remaining fact to establish probable cause was defendant’s possession of stolen stamp books. We do not consider that possession of stolen property some nine weeks after the theft is of much probative value that the possessor was the burglar. Moreover, whatever slight probative value such possession might have is reduced by the fact that the possession was at a time that the possessor was exchanging the property for an advertised reward.

Under the circumstances, we consider that the facts recited in the affidavit did not establish probable cause for the issuance of the search warrant. Hence, the trial judge erred in denying defendant’s motion to suppress.

Defendant also contends that the affidavit contained intentional misrepresentations by the affiants. In State v. Rey, supra, we held that if misrepresentations are intentionally made, the warrant must be quashed because these distorted statements constitute a fraud upon the courts and represent impermissible overreaching by the government. However, having concluded that the facts recited in the affidavit, after excising the misrepresentations and adding the omissions, do not establish probable cause, we need not decide whether or not the affidavit contained intentional misrepresentations because, if it did, the warrant would have to be quashed. This would have the same effect as suppressing the evidence because the affidavit did not establish probable cause for the issuance of the warrant.

DECREE

The judgment of the trial court denying defendant’s motion to suppress is reversed; the motion to suppress is granted; defendant’s conviction and sentence are reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.

       Judge Richard J. Gauthier participated in this opinion as associate justice, ad hoc, in place of Justice Lemmon, recused.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . Officers Gordon and Riviere (affiants) did not initially investigate the burglary. Officer Samuel Bua was the initial investigating officer and the person who signed the incident report. Officer Alfred Wilson was the crime lab technician on the scene and the person who signed the crime scene technician report.

      . We in no way intend to imply a finding of intentional misrepresentations. As stated, we simply need not decide the issue.


author: MARCUS, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Solomon BIRDSONG, Jr.
    No. 82-K-1346.
    Supreme Court of Louisiana.
    Nov. 29, 1982.

      Wellborn Jack, Jr., Jack, Jack, Carey & Carey, Shreveport, for relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., for respondent.
   MARCUS, Justice.

Solomon Birdsong, Jr. was charged by the grand jury in separate indictments with first degree murder in violation of La.R.S. 14:30 and armed robbery in violation of La.R.S. 14:64. Subsequently, he filed a motion to suppress, inter alia, a confession made by him. Prior to commencement of the suppression hearing, defendant moved “to close to the public and the press the pretrial hearing on his motion to suppress.” After a hearing, the motion was denied. On defendant’s application, we granted a writ under our supervisory jurisdiction to review the correctness of that ruling.

Defendant contends the trial judge abused his discretion in denying his motion to close the hearing to the press and public after making a showing of prejudice to his right to a fair trial. Hence, the narrow issue presented for our determination is whether a defendant has a right to have a pretrial hearing on a motion to suppress his confession closed to the public and press if public disclosure of the proceeding will prejudice his right to a fair trial.

In the relatively recent case of Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), the United States Supreme Court was confronted with a somewhat similar situation except that the defendants, the prosecutor, and the trial judge all had agreed that the closure of the pretrial suppression hearing was necessary to protect the defendants’ right to a fair trial. In Gannett, it was the press who was complaining about the closure. The Court held that to safeguard the due process rights of the accused, the trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity. Because of the constitution’s pervasive concern for these due process rights, the trial judge may surely take protective measures even when they are not strictly and inescapably necessary. The Court recognized that publicity concerning a pretrial suppression hearing poses special risks of unfairness. The whole purpose of' such a hearing is to screen out unreliable or illegally obtained evidence and insure that this evidence does not become known to the jury. Publicity concerning the pretrial hearing could influence public opinion against a defendant and inform potential jurors of inculpatory information wholly inadmissible at the actual trial. Closure of a pretrial proceeding is often one of the most effective measures that a trial judge can employ to attempt to insure that the fairness of a trial will not be jeopardized by the dissemination of such information throughout the community before the trial itself has ever begun.

Although the Court held that the trial judge has a constitutional duty to minimize the prejudicial effects of pretrial publicity so as to afford a defendant his due process rights to a fair trial, the Court also noted that a defendant does not have a constitutional right to compel a private hearing. There are competing interests. There is a countervailing public policy which is a strong societal interest in public trials. “Openness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously, and generally give the public an opportunity to observe the judicial system.” Gannett, supra, at 383, 99 S.Ct. at 2907. Nevertheless, the Court also held that the sixth amendment’s guarantee to the accused of a public trial gave neither the public nor the press an enforceable right of access to a pretrial suppression hearing. In weighing these competing interests, both the majority and the minority agreed that there are certain circumstances where an accused’s right to a fair trial will transcend the strong societal interest in open judicial proceedings. Unfortunately, the majority opinion in Gannett failed to set forth the circumstances under which a defendant would be entitled to a closed pretrial hearing. The dissent, although recognizing a right to closure, imposed such a severe burden (limiting closure to those cases where it is strictly and inescapably necessary in order to protect the fair-trial guarantee) that “[i]t is difficult to imagine a case where closure could be ordered appropriately under this standard.”

In State v. Kent, 391 So.2d 429 (La.1981), the issue of defendant’s right to a closed hearing on his motion to suppress was presented to this court for the first time after the Gannett decision. We noted that while Gannett recognized that the trial court may permit a defendant to waive his sixth amendment right to a public proceeding, there was no concommitant right to a closed proceeding. We pretermitted the question of whether it is ever an abuse of discretion for a trial court to refuse to close a pretrial proceeding at the request of the accused. We held that it was enough for the resolution of the merits of defendant’s contention to hold that he made no showing that he was prejudicially affected by the trial court’s denial of his request. We further held that defendant had not shown that other methods of protecting himself from the adverse effects of pretrial publicity would not have adequately assured a fair trial. We noted that a motion for a continuance and for a change of venue were both means of counteracting the possible adverse effects of pretrial publicity. It should be observed that the issue in Kent was presented to us on an appeal from a conviction rather than from a pretrial ruling as here. See also State v. McDonald, 404 So.2d 889 (La.1981).

Requiring a defendant to show actual prejudice resulting from the denial of a closed pretrial suppression hearing and that alternate methods of protecting himself from the adverse effects of pretrial publicity would not have assured a fair trial is an appropriate standard of appellate review; however, prior to trial, a defendant, as here, should only have to show a reasonable likelihood of substantial prejudice to his right to a fair trial by the dissemination of his confession, if proven inadmissible, throughout the community.

In the instant case, the record reveals the following facts. On February 2, 1982, Phyllis Bratton, assistant manager of a Pizza Hut in Shreveport, was murdered during the course of an armed robbery. The victim was shot in the head and throat and left inside a cooler in the establishment. On February 3, the newspapers contained articles on the murder. Television newscasts on the same day reported the arrest of defendant, son of a prominent Shreveport educator, and his younger brother as a possible accessory. On February 4, a newspaper reported the arrest of defendant, outlined the details of the murder and robbery, and reported that defendant had “made a statement to the police admitting his involvement in the crime.” This front page news item contained a picture of defendant. On February 5, a newspaper reported that a Caddo Parish prosecutor told the court, at defendant’s initial appearance to appoint counsel, that defendant admitted committing the crime. Both newspapers reported that the grand jury was “expected to indict” defendant and followed with stories on February 19 that defendant had in fact been indicted for first degree murder and armed robbery. The articles on February 19 also reported the preliminary examination testimony of the investigating officer. Both news accounts told in detail how the police investigation lead to defendant and of the evidence that resulted. The papers also related the officer’s testimony as follows: “I asked him point blank ‘did you kill Phyllis Bratton .... ’ He said ‘yes sir, I did.’ ” Defendant’s plea of not guilty was entered on March 9, 1982 and was also reported and recounted the “reported confession” and the preliminary examination testimony. The news media dubbed the crime as the “cooler murder.”

After the indictment, the local papers continued to follow the progress of defendant’s case. Defendant’s motions to quash and to suppress were reported. In addition, the papers reported the subsequent investigation and release of defendant’s brother. Tapes of the local television broadcasts contain generally the same information reported in the newspaper articles.

While there has already been extensive pretrial publicity in this matter, we consider any further reporting by the news media of defendant’s confession, if proven inadmissible, could unfavorably influence the jury venire. After all, defendant is accused of a capital offense. Our Code of Criminal Procedure has built-in safeguards not afforded to persons accused of lesser crimes which impose less severe penalties. Hence, we should be overcautious when considering the due process rights of a person accused of a capital offense. Defendant’s right to a fair trial can be protected from the adverse effects of pretrial publicity by simply closing the suppression hearing to the public and press who do not have an enforceable right to be present.

Under the circumstances, we consider that the trial judge abused his discretion in denying defendant a closed hearing on his motion to suppress his confession in this capital case. We must reverse.

DECREE

The ruling of the trial judge denying defendant a closed pretrial suppression hearing on the motion to suppress his confession is reversed. Defendant’s motion to close the hearing to the public and press is granted. The case is remanded to the district court for further proceedings.

LEMMON, J., concurs and will assign reasons.

DIXON, C.J., dissents.

CALOGERO, J., dissents.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The Louisiana public enjoys more than just a “strong societal interest” in open'trial proceedings. Louisiana Constitution article I, § 22 flatly states that “[a]ll courts shall be open .... ” The uniform interpretation of the mandate that the courts “shall be open” by those state courts called upon to construe the provision in their constitutions is that this language confers an independent right on the public to attend civil and criminal trials and not simply a right in favor of the litigants to demand a public proceeding. See, e.g., State ex rel Harold Mail Co. v. Hamilton, 267 S.E.2d 544 (W.Va., 1980); In re Edens, 290 N.C. 299, 226 S.E.2d 5 (1976); Cohen v. Everett City Council, 85 Wash.2d 385, 535 P.2d 801 (1975); Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257, 418 P.2d 594 (1966). Typical of the reasoning of these courts is E. W. Scripps Co. v. Fulton, 100 Ohio Appeal 157,125 N.E.2d 896 (1955), where the public interest was stated as follows:

It can never be claimed that in a democratic society the public has no interest in or does not have the right to observe the administration of justice. The open courtroom is as necessary and important in the interest in supporting the administration of justice as in the protection of the rights of a member of the public when on trial for a criminal offense.
The defendants cannot waive the right of the people to insist that the proceedings of the courts, insofar as practicable and in the interest of the public health and public morals, be open to public view

100 Ohio App. at 162, 167, 125 N.E.2d at 900, 903.

Additionally, Louisiana Constitution article XII, § 3 provides that “[n]o person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.” This prohibition and the open court guarantee can inure to the benefit of individuals but the sweeping language with which they are written makes it unreasonable to interpret them to be merely grants of a right to an individual that can be waived or which would vanish if not affirmatively raised by the individual.

Accordingly, I would hold that the trial court may not bar the public from a pretrial hearing because it would be contrary to these state constitutional provisions. The holding, however, should not be interpreted as guaranteeing the right of public access to all judicial proceedings. One obvious limitation is that jury deliberations and court conferences have been and are held in private. Despite the absence of any language in the constitution expressly excluding jury deliberation from the prohibition against secret deliberations, the tradition that such proceedings be held in private is so long and so well established that the tradition should be read into the section. The same is true of conferences of collegial courts. State ex rel Oregonian Pub. Co. v. Deiz, 289 Or. 277, 613 P.2d 23 (1980).

I am also persuaded to this view by the fact that each individual’s right to a public trial is guaranteed by a different section of the constitution. Art. I, § 16 provides that “[ejvery person charged with a crime is presumed innocent until proven guilty and is entitled to a speedy, public, and impartial trial in the parish where the offense or an element of the offense occurred, unless venue is changed in accordance with law.” Therefore, I believe that the defendant may waive his right to a public trial, but that the public has a right to open court proceedings, subject to the exceptions noted above, which does not depend upon its assertion by the individual defendant. Furthermore, the defendant’s right to a fair trial may be protected by a change of venue, a continuance or by other procedures in the event of unduly prejudicial publicity resulting from open pretrial hearings.

      . 416 So.2d 936 (La.1982). We also granted the motion of the Louisiana Press Association and the Society of Professional Journalists, Sigma Delta Chi, to file amicus curiae brief.

      . La. Const, art. 1, § 22 (Access to Courts) provides:
      All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.

      . Such is demonstrated by the decision’s minority, speaking through Justice Blackmun: “At the same time, I do not deny that the publication of information learned in an open proceeding may harm irreparably, under certain circumstances, the ability of a defendant to obtain a fair trial. This is especially true in the context of a pretrial hearing, where disclosure of information, determined to be inadmissible at trial, may severely affect a defendant’s rights. Although the Sixth Amendment’s public-trial provision establishes a strong presumption in favor of open proceedings, it does not require that all proceedings be held in open court when to do so would deprive, a defendant of a fair trial.” Gannett Co. v. DePasquale, 443 U.S. 368, 439, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979).

      .Gannett, supra, at 399, 99 S.Ct. at 2915 (Powell, J. concurring).

      .In Gannett, the Court noted: “All of this does not mean, of course, that failure to close a pretrial hearing, or take other protective measures to minimize the impact of prejudicial publicity, will warrant the extreme remedy of reversal of a conviction. But it is precisely because reversal is such an extreme remedy, and is employed in only the rarest cases, that our criminal justice system permits, and even encourages, trial judges to be overcautious in ensuring that a defendant will receive a fair trial.” Gannett, supra, 443 U.S. at 379 n. 6, 99 S.Ct. at 2905 n. 6.

      . At the hearing, defendant introduced television tape recordings. In his brief to this court, defendant attached certain newspaper articles from the Shreveport Journal and Shreveport Times. These articles were not introduced in evidence. However, since the state has neither objected to their consideration or authenticity, we have considered them.

      . Defense counsel’s analysis of the newspaper coverage shows that between February 3, 1982 and May 11, 1982, twenty-three articles have appeared with approximately one hundred eighty-one inches of press in connection with the instant case.

      . For example, La.Code Crim.P. art. 782 requires that a capital case be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Article 791 requires sequestration of the jury in capital cases. Articles 905-905.9 and Rule 905.9.1 require additional procedures for sentencing in capital cases. As stated by the United States Supreme Court: “[D]eath is a different kind of punishment from any other which may be imposed .... ” Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).


author: DENNIS, Justice.

text:
    STATE of Louisiana v. George OUBICHON and Calvin Ursin.
    No. 82-KA-0276.
    Supreme Court of Louisiana.
    Nov. 29, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John Craft, David Plav-nicky, Michael Fanning, Asst. Dist. Attys., for plaintiff-appellee.
    Calvin Johnson, Warren DeAgano, Vernon Thomas, Orleans Indigent Defender Program, John J. Dolan, New Orleans, for defendants-appellants.
   DENNIS, Justice.

Defendants, George Oubichon and Calvin Ursin, were convicted by a jury of armed robbery. Ursin was sentenced to 99 years imprisonment at hard labor without benefit of probation, parole or suspension of sentence. Oubichon was adjudged to be a multiple offender and sentenced to 198 years imprisonment at hard labor without benefit of probation, parole or suspension of sentence. Although the judge was authorized by law to impose a sentence within a range of 5 to 99 years upon Ursin and within a 5 to 198 year range upon Oubichon, he chose to impose the maximum punishment legally allowable upon each defendant. Defendants appealed their sentences only.

The present record assembled for our review in this case does not support the imposition of maximum sentences. The trial judge failed to perform his legal duty required by C.Cr.P. art. 894.1 to articulate the reasons for his sentences demonstrating that these individual defendants should receive maximum penalties rather than other sentences within the statutory range. Upon imposition of the sentences, the trial judge denounced each defendant as a violent recidivist beyond any hope of rehabilitation. However, he failed to state the facts which support this conclusion and gave no reason for finding these particular defendants less reformable and more deserving of punishment than other persons in their offender classes who have received lesser sentences for the same crime. The state’s brief points to no additional evidence in the record which supports the maximum sentences, and our independent scrutiny has failed to uncover adequate justification for the non-parolable sentences of 99 and 198 years.

Consequently, we find that there is a substantial possibility that the sentences are constitutionally excessive and will vacate the sentences and remand this case for resentencing in full, recorded compliance with article 894.1. Our decision does not represent a final judgment that sentences of this magnitude are impermissible in this case; however, it is a finding that the sentences are so severe as to be constitutionally excessive unless good reasons exist to distinguish these defendants and their crimes as deserving of the heaviest sentences possible when compared with other persons in the same offender classes guilty of the same offenses. State v. Wimberly, 414 So.2d 666 (La.1982).

Defendant Oubichon filed an additional assignment of error based on statistics gleaned from the docket books of Section B of the Criminal District Court of Orleans Parish. These figures represent a compilation of all sentences in armed robbery and attempted armed robbery convictions from the period of approximately April, 1976 to September, 1979. The figures show an average penalty of eighty one years for a defendant who exercised his right to trial by pleading not guilty, as opposed to an average of nine years for those who plead guilty. For double bill prosecutions, the average was one hundred sixty-five years for a trial, while virtually all of the guilty pleas received the minimum of thirty years. These figures are somewhat alarming to us, as they present serious questions of ‘,‘chilling” of sixth amendment rights and deprivation of due process by vindictive sentencing. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). These figures also tend to substantially support allegations of unjustifiable sentencing disparities between offenders sentenced in the same court and charges that the judge failed to comply with the requirement of article 894.1 by failure to particularize the sentences or to consider relevant militating and mitigating factors.

However, in the context of this case, we are unable to reach these questions. First, the defendant failed to introduce any of this evidence into the record of these proceedings. Only that which is in the record may be reviewed by this court. State v. Augustine, 252 La. 983, 215 So.2d 634 (La.1968). Second, the defendant did not make any objection at or before the time of his sentencing. While we have held that there is no need for a contemporaneous objection for the issue of excessive sentence to be raised upon appeal, State v. Lewis, 416 So.2d 921 (La.1981); State v. Bourgeois, 388 So.2d 359 (La.1980), State v. Cox, 369 So.2d 118 (La.1979), we have been careful to limit this rule to prevent the defendant from being relieved of all obligations for objection in connection with sentence review. In our seminal decision of State v. Cox, we stated:

If at or before the time of the sentencing hearing a defendant does not alert the trial court to alleged deficiency in its sentencing reasons because of circumstances not reflected by the record (such as alleged misinformation or insufficient date of mitigating circumstances with regard to the sentencing decision), the assertion of the alleged deficiencies for the first time in the appellate court will not ordinarily be considered in the appellate review of sentence, which will be based upon the actual showings or attempted showings with regard to excessiveness made in the sentencing proceedings and upon the considerations and factual reasons expressed by the trial court’s sentencing reasons made in compliance with La.C.Cr.P. art. 894.1.

369 So.2d at 123. On remand, however, if defendant objects to his sentence and alleges that the same irregularities exist, he must be given an opportunity in an eviden-tiary hearing to make a showing of such constitutional deficiencies.

DECREE

For the reasons assigned, defendant Ur-sin and defendant Oubichon’s sentences are vacated and set aside. The case is remanded to the district court with instructions for the trial judge to resentenee these defendants in a manner that complies with La. Code of Criminal Procedure article 894.1.

SENTENCES VACATED AND REMANDED FOR RESENTENCING.


text:
    Donald R. MILLER v. HARTFORD FIRE INSURANCE COMPANY.
    No. 82-C-1094.
    Supreme Court of Louisiana.
    Nov. 29, 1982.

      Donald R. Miller, Shreveport, for applicant.
    Steven H. Beadles, Charles G. Tutt, Cook, Yancey, King & Galloway, Shreveport, for respondent.
   DENNIS, Justice.

We have carefully scrutinized the record in this case and have concluded that it contains no grounds for reversal or modification of the court of appeal judgment. A full opinion by this court is unnecessary because the facts of the ease have been correctly stated by the court of appeal, and our analysis differs only slightly with respect to one issue from that of our intermediate appellate brethren. See Miller v. Hartford Fire Ins. Co., 412 So.2d 662 (La.App. 2d Cir.1982). Accordingly, the judgment of the court of appeal will be affirmed for the reasons stated in its opinion, except for the limited variance hereinafter noted.

At the time of the fire loss, the owner of the property was John McGrew. John Miller, the named insured in the Hartford policy covering the property, owned a promissory note in the amount of $4,000 secured by a mortgage on the premises signed by John McGrew. Following the fire loss, by written act of assignment, John Miller assigned his $4,000 promissory note, secured by a mortgage on the insured property, to the agent of John McGrew.

An assignment of a note would ordinarily vest the assignee with the right to collect the obligation from its maker. However, this assignment curiously transferred the note to its maker. Thus, Miller’s assignment of the note to McGrew united the qualities of debtor and creditor in the person of McGrew, causing a confusion of right, which extinguished the debt. La.Civ. Code art. 2217. When the principal debt was extinguished, the mortgage disappeared with it. La.Civ.Code art. 3285. The extinguishment of the obligation on the note destroyed Miller’s ability to comply with his express obligation under the insurance policy to subrogate Hartford to his rights on the mortgage and the note it secures. Under these circumstances, when the insured releases his debtor and thereby deprives the insurer of its subrogation right, the insurer is discharged to the degree of this impairment from its liability under the policy. City of New York Insurance Co. v. Abraham, 20 So.2d 183 (La.App. 2d Cir.1944); cf. Washington v. Dairyland Ins. Co., 240 So.2d 562 (La.App. 4th Cir.1970); Polk Chevrolet Co. v. Salario, 132 So.2d 115 (La.App. 1st Cir.1961); Travelers Fire Ins. Co. v. Ackel, 29 So.2d 617 (La.App. 2d Cir.1947); Comment, Obligations — Insurer’s Cause of Action — Conventional and Legal Subrogation, 19 La.L.Rev. 726 (1959).

Our only real disagreement with the court of appeal opinion is with the importance it seems to place upon the fact that John Miller divested himself of his insurable interest in the property after the fire loss. Strictly speaking, whether John Miller had an insurable interest in the property after he assigned his interest in the note and the insurance policy is not a material issue. Since the right of recovery under the policy accrued as of the time of the loss, the fact that the insured thereafter parted with his interest or assigned the policy does not defeat recovery. Couch on Insurance 2d, § 24:17 at n. 3. cf. Union Central Life Ins. Co. v. Harp, 203 La. 806, 14 So.2d 643 (1943); Bell v. The Western Marine and Fire Ins. Co. 5 Rob. 423 (1843); Power v. Ocean Insurance Company 19 La. 28 (1841); Brown v. State Farm Fire & Cas. Co., 363 So.2d 967 (La.App. 3rd Cir.1978); Davis-Wood Lumber Co. v. Ins. Co. of North America 154 So. 760 (La.App. 1st Cir.1934); Comment, 5 La.L.Rev. 620 (1947). In our opinion, the right to recovery under the Hartford policy in the present case was defeated solely because the extinguishment of the debt and the disappearance of the mortgage deprived the insurer of its subro-gation right.

Finally, we agree with the lower courts that Hartford’s motion for a new trial was timely. This question is important for a determination of whether Hartford’s appeal from an adverse judgment after the new trial was timely. At the conclusion of the first trial, judgment was not rendered and the trial judge instructed the parties to file supplemental briefs. The briefs were submitted and oral judgment was rendered, followed eventually by a signed judgment. As the trial judge acknowledged, his actions at the close of the trial fairly indicated that he had taken the case under advisement. Thus, Hartford had seven legal days after the day the clerk mailed, or the sheriff served, the notice of judgment in which to timely apply for a new trial. La.Code Civ.P. arts. 1913, 1974. The record reveals that Hartford filed its motion for a new trial within the required period.

For the reasons assigned, the court of appeal judgment is affirmed.

AFFIRMED.

DIXON, C.J., and CALOGERO, J., dissent.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Bobby D. KEENEY.
    No. 81-KA-2097.
    Supreme Court of Louisiana.
    Nov. 29, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Louise Korns, W.C. Douglas Friederichsen, William C. Credo, Asst. Dist. Attys., for plaintiff-appellee.
    Marco A. Rosamano, New Orleans, for defendant-appellant.
   BLANCHE, Justice.

Defendant Bobby Keeney pleaded guilty to one count of simple burglary, a violation of LSA-R.S. 14:62. Following a pre-sen-tence investigation, the defendant was sentenced to three years at hard labor. In appealing his sentence, the defendant assigns two errors.

The circumstances surrounding the commission of the offense are as follows: on August 27,1980, two Jefferson Parish sheriff’s deputies responded to a burglar alarm at a business in Jefferson, Louisiana. A witness had observed the defendant and another man loitering near the business just a few minutes before the police arrived. The deputies observed the defendant and the other man running from the establishment and apprehended the defendant as he tried to leap a nearby fence. The other man escaped. The only items taken were a clock radio and a stone paper weight, both of which were promptly returned to their owner.

In his first assignment of error, the defendant argues that the trial court did not comply with the guidelines of La.C.Cr.P. art. 894.1 in imposing sentence. Because we find this case dispositive on this issue, we do not address the second assignment.

The trial judge, in imposing sentence, stated as follows:

“This is the sentence which [the defendant] could be sentenced to, as much as twelve years at hard labor. The court at this time, because of the man’s previous problems with drugs and because of the seriousness of this crime and because the court believes if he were released on probation that he would involve himself in other criminal activity and because any lesser sentence would deprecate the seriousness of the crime.
The court hereby sentences the defendant ... to serve at hard labor for a term of three years.”
SjC jjc Sfc * Sfc

Under La.C.Cr.P. art. 894.1, the trial judge must state the considerations taken into account and the factual basis therefor in imposing sentence. While the judge need not articulate every aggravating and mitigating circumstance, the record must adequately reflect that he considered these guidelines in particularizing the sentence to the defendant. State v. Duncan, 420 So.2d 1105 (La.1982); State v. Guiden, 399 So.2d 194 (La.1981); State v. Molinet, 393 So.2d 721 (La.1981). The judge should indicate that he has considered not only the factors militating for incarceration but also any factors militating against it. State v. Franks, 373 So.2d 1307 (La.1979); State v. Gist, 369 So.2d 1339 (La.1979); State v. Sepulvado, 367 So.2d 762 (La.1979).

In sentencing Bobby, the trial judge stated that he felt there was an undue risk that the defendant would become involved in other criminal activity during a suspended sentence or probation because of his “previous problems with drugs” and due to the “serious nature” of this particular crime. The record reflects that the defendant was extremely intoxicated at the time of the offense. The pre-sentence investigation revealed that he had previously contracted hepatitis, probably from injection of the drug preludin. Thus, the trial judge’s observation as to the defendant’s “drug problem” is probably accurate, especially in light of Keeney’s admission to previous use of the drug. Although burglary is a crime of a serious nature, our review of the record shows that the defendant’s participation in the crime was at his roommate’s insistence. It appears that it was the other man who actually broke into the building while the defendant remained outside as a lookout. Defendant represented that his participation in the crime was minimal and occasioned by his drunken condition. The only items taken were of insignificant value, and both were promptly returned to their owner.

This crime represents the defendant’s first felony conviction. He has no juvenile record. He was 26 years old at the time of the offense and has an excellent work record. Additionally, the defendant has made a showing that he will be guaranteed employment upon his release from jail. Although he has had a history of alcohol abuse, the defendant has offered to undergo treatment for the problem.

Outwardly, it appears that the defendant has come from a stable background. His father is a police lieutenant in Amarillo, Texas. The defendant was honorably discharged from the navy with a rank of E-3 and attended one year of college in Amarillo, where he majored in electronics. His reason for leaving was financial, a problem not uncommon among today’s college-age youth. In general, the defendant has shown that he recognizes the gravity of his wrongdoing and remains contrite. At the “boykinization”'hearing, on questioning by the prosecutor, the defendant offered to identify the man who broke into the building and to testify against him at trial.

In our opinion, these mitigating factors represent a strong case for a jail term or suspended sentence with strong probationary measures to control the defendant’s drug and alcohol abuse. We do not believe that the circumstances of this case justify the trial judge’s conclusion that there is an undue risk that the defendant would become involved in other criminal activity during a suspended sentence and probation. As we noted above, the defendant is a first offender with no juvenile record and has expressed a willingness to work. We also believe that even though the trial judge had information on these mitigating factors, they were not expressly articulated in the sentencing colloquy and were possibly overlooked. In cases with such strong mitigating circumstances, unless the record accurately reflects that they were properly considered, it is impossible for us to safely say that they were accorded their proper weight, and the sentence may appear to have been arbitrary and excessive. State v. Williams, 397 So.2d 1287 (La.1981); cf. State v. Douglas, 389 So.2d 1263 (La.1980); State v. Gambino, 362 So.2d 1107 (La.1978).

DECREE

For these reasons, we vacate the sentence of the defendant, Bobby Keeney, and remand the case to the trial court for re-eon-sideration of the mitigating factors in light of the observations herein, and for re-sentencing in accordance with La.C.Cr.P. art. 894.1.

VACATED AND REMANDED.

WATSON, J., dissents.


author: WATSON, Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Roger D. GREENWAY.
    No. 81-KA-2673.
    Supreme Court of Louisiana.
    Nov. 29, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Duncan Kemp, Dist. Atty., Abbott Reeves and James E. Kuhn, Asst. Dist. Attys., for plaintiff-appel-lée.
    Randall Shipp, Buxton & Shipp, Baton Rouge, for defendant-appellant.
   WATSON, Justice.

Defendant, Roger D. Greenway, was convicted of possession of marijuana with intent to distribute. LSA-R.S. 40:967(A). He was sentenced to four years at hard labor and fined $7,500 plus costs. Defendant has appealed, assigning two errors by the trial court.

FACTS

On May 7,1980, at about 9:15 P.M., Wiley Mitchell Williams was arrested for selling marijuana to Baton Rouge Police Officers McMillan and Norman. Williams had four individually packaged pounds of marijuana. Williams said he had obtained the marijuana in Denham Springs at a white frame house, number 22, on the southeast comer of Audubon and LaSalle Streets, facing Audubon. A blue Chevrolet stationwagon was parked in front of the house. The salesman was a white male, five feet eight inches tall, one hundred seventy pounds, with “feathered back” blond hair and a blond mustache, who drove a red Camaro. Williams described part of the interior of the house and said a bedroom closet contained thirty-five pounds of marijuana packaged in one pound “ziplock” bags. Williams showed the officers a house matching his description with a blue Chevrolet stationwagon in front. Corporal John W. McMillan repeated Williams’ information in an affidavit and obtained a warrant to search the house at 2:16 A.M. The warrant was executed the next dáy. A cellophane package containing approximately a pound of marijuana, another cellophane bag containing two additional ounces, and a marijuana cigarette were seized, along with a book, Indoor Marijuana Cultivation, by Murphy Stevens. The defendant, Greenway, was arrested.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the trial judge erred in denying his motion to suppress the evidence seized pursuant to the search warrant. It is argued that the warrant was invalid because the affidavit did not recite sufficient information for the issuing magistrate to conclude that the informant was reliable. Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

The facts in the affidavit indicate personal observation by the named informant. See United States v. Rollins, 522 F.2d 160 (2 Cir.1975). Compare United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) where the informer was unidentified. Williams was arrested about 9:15 P.M. and the officers called a judge to arrange for issuance of the warrant a little before midnight. He had little opportunity to fabricate a story. State v. Mosley, 412 So.2d 527 (La., 1982). If Williams’ story had been false, he would have gained nothing but ill-will. Therefore, he had no reason to lie. Williams’ information focused on a specific individual; he gave a precise description of the man and the premises to be searched. The judge correctly determined that the facts recited in the affidavit were sufficient to establish that the informant was reliable.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends that the evidence before the trial court was insufficient to prove that he intended to distribute the marijuana.

The physical evidence introduced at the trial consisted of the search warrant, a copy of the receipt given Greenway for the items seized, the return of the search warrant, a scientific analysis identifying the marijuana, the marijuana, and the book. The only witnesses were officer McMillan and deputy Haley, who assisted in the search. Williams could not be served and did not testify about the sale to him.

Intent' to distribute may be inferred from the circumstances. LSA-R.S. 15:445. However, there was no evidence that the amount here was inconsistent with personal use. State v. Harveston, 389 So.2d 63 (La., 1980); State v. Elzie, 343 So.2d 712 (La., 1977); State v. Willis, 325 So.2d 227 (La., 1976). Compare State v. Sibley, 310 So.2d 100 (La., 1975) where the evidence was that defendant possessed enough marijuana for six hundred cigarettes. Here, there was no testimony as to the number of cigarettes that could be made from the marijuana seized. Mere possession of marijuana is not evidence of intent to distribute it unless the quantity is so large that no other inference is reasonable. State v. House, 325 So.2d 222 (La., 1975).

As in State v. House, supra:

“... the State offered no evidence: (1) that the defendant ever distributed or attempted to distribute any marijuana; (2) that the marijuana was in a form usually associated with marijuana possessed for distribution to others; (3) that the amount was such as to create a presumption of intent to distribute; (4) of expert or other testimony that such an amount as found on the defendant is inconsistent with personal use only; and (5) of any paraphernalia, such as baggies or scales, evidencing an intent to distribute.” 325 So.2d at 225.

This assignment has merit.

For the foregoing reasons, the conviction of possession of marijuana with the intent to distribute is vacated. Possession of marijuana, LSA-R.S. 40:967(C) is responsive to the charge of possession of marijuana with the intent to distribute. LSA-C.Cr.P. art. 814(A)(46). Since the evidence supports conviction of possession of marijuana, a judgment of conviction of that lesser responsive offense will be entered. State v. Byrd, 385 So.2d 248 (La., 1980); Act 144 of 1982. Defendant, Roger D. Greenway, is guilty of violating LSA-R.S. 40:967(C). The matter is remanded to the trial court for resentencing.

CONVICTION SET ASIDE; NEW CONVICTION ENTERED; REMANDED.

DENNIS, J., concurs.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring,

This decision simply holds that the prose. cution failed to prove an essential element 0f the charged offense; this decision does not stand for the proposition that possession 0f one pound of marijuana cannot be proved to be inconsistent with personal use so as to constitute evidence of intent to distribute.

      . LSA-R.S. 40:967(A), at the time of the offense, provided:
      “A. Manufacture; distribution. Except as authorized by this part, it shall be unlawful for any person knowingly or intentionally: “(1) To produce, manufacture, distribute, or dispense, a controlled dangerous substance classified in Schedule II;
      “(2) To create, distribute, or possess with intent to distribute, a counterfeit controlled dangerous substance classified in Schedule II.”
      At the time of the offense, marijuana was contained in Schedule II.

      . The trial court concluded that a pound was inconsistent with personal use on the basis of his personal experience:
      “... [T]he court being a tobacco smoker can draw upon its common sense though it smokes at least a carton a week. A carton does not weigh nearly a pound. So it would have been rather difficult for personal use of that marijuana to have been used in a short period of time.... [I]t was held with an intent other than personal consumption.... ” (Tr. 93)

      . LSA-R.S. 40:967(C) provides:
      “C. Possession. It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner or provided in R.S. 40:978, while acting in the course of his professional practice, or except as otherwise authorized by this Part. Except as provided in Subsections E and F hereof, any person who violates this Subsection shall be imprisoned with or without hard labor for not more than five years; and, in addition, may be sentenced to pay a fine of not more than five thousand dollars.”

      . LSA-C.Cr.P. art. 814(A)(46) provides:
      “A. The only responsive verdicts which may be rendered where the indictment charges the following offenses are:
      “Possession of Controlled Dangerous Substances with Intent to Produce, Manufacture, Distribute or Dispense:
      “Guilty.
      “Guilty of attempted possession of controlled dangerous substances with intent to produce, manufacture, distribute or dispense.
      “Guilty of possession of controlled dangerous substances.
      “Guilty of attempted possession of controlled dangerous substances.
      “Not guilty.”

      . Act 144 of 1982 provides:
      “To enact Code of Criminal Procedure Art. 821; to provide for a motion for a post verdict judgment of acquittal; to provide for the standards for granting the motion; to provide for modification of the verdict and entry of a judgment of conviction of a lesser included responsive offense in lieu of acquittal; to provide for appellate review of a post verdict judgment of acquittal or of a modified verdict; and otherwise to provide with respect thereto:
      “Be it enacted by the Legislature of Louisiana:
      “Section 1. Code of Criminal Procedure Art. 821 is hereby enacted to read as follows: “Art. 821. Motion for post verdict judgment of acquittal
      “A. The defendant may move for a post verdict judgment of acquittal following the verdict. A motion for a post verdict judgment of acquittal must be made and disposed of before sentence.
      “B. A post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty.
      “C. If the court finds that the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.
      “D. If a post verdict judgment of acquittal is granted or if a verdict is modified, the state may seek review by involving the supervisory jurisdiction of or by appealing to the appropriate appellate court.
      “E. If the appellate court finds that the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.”


author: WATSON, Justice.

text:
    STATE of Louisiana v. Lloyd DAVENPORT.
    No. 82-KA-0293.
    Supreme Court of Louisiana.
    Nov. 29, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Catherine Estopinal, Billy J. Guin, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    Stephen A. Glassell, Whitmeyer, Thomas & Glassell, Shreveport, for defendant-appellant.
   WATSON, Justice.

Defendant, Lloyd Davenport, was convicted of two counts of attempted manslaughter and given a concurrent sentence of seven and one-half years at hard labor on each count. His conviction and sentence were conditionally affirmed. State v. Davenport, 399 So.2d 201 (La., 1981). The matter was remanded for an in camera inspection of five pretrial witnesses’ statements to determine if these contained exculpatory information or material inconsistencies. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

After remand, the trial court concluded that there is no exculpatory material in the pretrial statements and minor inconsistencies between three of the statements and the witnesses’ trial testimony did not require a new trial. Defendant has appealed for the second time.

Seven eyewitnesses, the two victims, and defendant testified at trial. One victim, Jettie Pennywell, and four other witnesses, Fate Pouncy, Betty Pennywell, Michael McDowell and Henry Pouncy, Jr., gave pretrial statements. There is no inculpatory material in the pretrial statements. There are some inconsistencies in the pretrial and trial testimony of three witnesses. The question is whether these discrepancies create a reasonable doubt that did not otherwise exist about defendant’s guilt. State v. Sylvester, 388 So.2d 1155 (La., 1980).

The three witnesses who gave conflicting testimony were Fate Pouncy, Henry Poun-cy, Jr., and Michael McDowell.

In his pretrial statement, Michael McDowell said Davenport shot the daughter first and then the mother. Henry Pouncy, in his pretrial statement, also said that “[T]he fat lady” [the daughter] was shot first and then “the other one”. At trial, both indicated the mother was shot first. (Tr. 368, 396, 406) “[I]t ... happened so fast”, the confusion is understandable. (Henry Pouncy, Jr. Statement, 5/20/79.) The discrepancy is not critical and would not have affected the jury’s verdict. Which woman was shot first is irrelevant to defendant’s guilt or innocence.

In his pretrial statement, Fate Poun-cy said he did not see Davenport, “Sonny Man”, until Davenport fired the .first shot. At trial, Fate said he saw Davenport when the latter was ten feet away from the women and walking toward them. The evidence establishes that Davenport, after arguing with the two women, went to his truck, got his gun and returned to do the shooting. Fate Pouncy’s testimony at trial merely corroborated that of other witnesses. The inconsistency between his pretrial and trial testimony could not have affected the jury’s verdict.

Michael McDowell, in his statement, said the daughter had a bat which Davenport snatched away from her and the mother had a stick. At trial McDowell remembered only a stick. There is more of an omission than a contradiction in the trial testimony. It could not have created a reasonable doubt of defendant’s guilt.

The importance of these three witnesses is lessened by the abundance of other testimony. Compare Giglio, supra, where the prosecution’s case rested on one witness, and his credibility was an important issue.

The minor credibility questions raised by the pretrial statements of these three witnesses were insignificant in the context of the testimony as a whole. The statements were not material to the question of defendant’s guilt or punishment and could not have affected the verdict or sentence.

For the foregoing reasons, the conviction and sentence of defendant, Lloyd Davenport, are affirmed.

AFFIRMED.


author: WATSON, Justice. MARCUS, Justice

text:
    Ms. Rubayah Abdul MALEK, as next friend on behalf and in the Interest of a Conceived, Unborn and Unnamed Infant v. Seyed Nasrollah YEKANI-FARD, and the Conceived, Unborn and Unnamed Infant.
    Nos. 82-C-0621, 82-C-0644.
    Supreme Court of Louisiana.
    Nov. 29, 1982.

      Richard C. Cadwallader, Baton Rouge, for relator in No. 82-C-0621 and for respondent in No. 82-C-0644.
    William D. Beck, Jr., Joe E. Thompson, Beck & Thompson, Baton Rouge, for respondent in both cases.
    Benn Hamilton, Capital Area Legal Service Corp., Baton Rouge, for relator in No. 82-C-0644 and for respondent in No. 82-C-0621.
   WATSON, Justice.

Plaintiff, Rubayah Abdul Malek, filed this suit on behalf of herself and an unborn child, seeking to establish the child’s paternal filiation and obtain support. Plaintiff asked for: custody; a judgment decreeing the child’s legal relationship to the defendant, Seyed Nasrollah Yekani-Fard; support payments; and injunctive relief to restrain removal of defendant’s assets from the jurisdiction of the court. Temporary restraining orders issued to prevent alienation or removal of defendant’s assets. By agreement of the parties, $6,000 was released, but the balance awaits final determination of the suit.

Defendant filed a dilatory exception of prematurity and peremptory exceptions of no right and no cause of action, alleging that the unborn child lacks standing and plaintiff is the legal wife of another man. The trial court dismissed the suit as premature “because that child has not been born.” (Tr. 32) The Court of Appeal declined to review the ruling. Separate writ applications were then made: one by the curator named for the unborn child and another by the mother. Writs were granted to review the ruling of the trial court. Malek v. Yekani-Fard, 412 So.2d 1114 (La., 1982). It is alleged that the unborn child is now an infant daughter.

In sustaining the exception of prematurity, the trial court held that a cause of action had not come into existence because a prerequisite condition, birth, had not taken place. Steeg v. Lawyers Title Insurance Corporation, 329 So.2d 719 (La., 1976). Malek’s claim for prenatal and natal expenses was apparently regarded as dependent on a paternity adjudication. It cannot otherwise be termed premature.

The issue is whether a suit to prove filiation and obtain support for an unborn child can be brought prior to its birth. That issue may be moot here but will undoubtedly arise again. Because the appellate process is slower than the human gestation period, the question could forever evade review and should be decided. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

Plaintiff contends, correctly, that an unborn child has prenatal and natal expenses. Responsibility for these expenses, like the child’s postnatal right to support, rests with both parents. The controversy concerns the property rights, if any, of an unborn child. Proof of filiation establishes entitlement to support and heirship. LSA-C.C. arts. 954, 1482; LSA-R.S. 14:74; State v. Manning, 390 So.2d 494 (La., 1980); Succession of Brown, 388 So.2d 1151 (La., 1980). “All rights that are susceptible of pecuniary evaluation are property in the sense that they are guaranteed by the legal order and form a part of a person’s patrimony.” 2 La.Civ.Law Treat. (Yiannopou-los) 2d at page 3. Thus, parental filiation with consequent entitlement to support and heirship is a property right of an unborn child.

“... [I]n the law of property an unborn child is regarded as in esse [in being] from the time of conception; ...” 24 Tulane L.Rev. 442.

“... [T]he child not yet born is already, from the time of its conception, capable of acquiring rights.
* * * * * *
“This anticipated personality recognized in behalf of the child, may also produce concrete effects. This takes place either where there is a question of acquiring a new nationality, or of the voluntary recognition of natural paternity or maternity, or of a right to an allowance in the case of a workman’s accident which happened to its father.
“... But this personality is admitted only in the interest of the child.” Planiol, Civil Law Treatise, Yol. I, Part 1, § 367, p. 245.
LSA-C.C. art. 29 provides that:
“Children in the mother’s womb are considered, in whatever relates to themselves, as if they were already born; thus the inheritances which devolve to them before their birth, and which may belong to them, are kept for them and curators are assigned to take care of their estates for their benefit.”

Thus, the Louisiana Civil Code clearly provides that an unborn child has standing to assert property rights.

The status of unborn children in the criminal law is, of course, different. “In the criminal law, it has long been settled that no person may be the subject of a homicide until he has been born alive.” 24 Tulane L.Rev. 437. Compare LSA-R.S. 14:2(7). See State v. Brown, 378 So.2d 916 (La., 1980). A child in útero is not a citizen. Harman v. Daniels, 525 F.Supp. 798 (1981). The word “person” in the Fourteenth Amendment to the United States Constitution does not include the unborn. Roe v. Wade, supra. However, Roe recognizes that unborn children can acquire property rights. As in Louisiana, “[Perfection of the interests involved, .. ., has generally been contingent upon live birth.” Roe v. Wade, 410 U.S. 163, 93 S.Ct. 731. See LSA-C.C. art. 28. In tort, on the other hand, Louisiana parents may recover damages for prenatal injuries, even though the child is stillborn. Danos v. St. Pierre, 402 So.2d 633 (La., 1981).

Illegitimates and those acting on their behalf can claim natal expenses and support from their biological fathers. McConkey v. Pinto, 305 So.2d 469 (La., 1974); Rousseau v. Bartell, 224 La. 601, 70 So.2d 394 (1954). There is no reason to draw a distinction between prenatal and natal expenses, or to make responsibility for the latter await birth. On the contrary, Louisiana specifically recognizes an unborn child’s rights in property matters.

It is argued that this mother has a legal husband. Her marital status is irrelevant except for any weight it may have at trial in proving or disproving filiation. “[I]t is the biological relationship and dependency which is determinative of the child’s rights in these cases, and not the classification into which the child is placed by the statutory law of the State.” Warren v. Richard, 296 So.2d 813 at 817 (La., 1974).

It is obviously of great consequence to a child to be born recognized as the son of a particular father. There is no reason why this status cannot be adjudicated between conception and birth. A father may acknowledge his natural child by reference to the mother whom he has impregnated. Planiol, supra, § 1475, p. 808.

“Acknowledgement may take place at all times. It may occur before the child’s birth, during the mother’s pregnancy, when the father, for example, fears that he may die before his child’s birth. It is true that the act is performed in favor of an inexistent person. Here is however an instance where this maxim applies: Tn-fans conceptus pro nato habetur’, because it operates in the interest of the child.” Planiol, supra, § 1480 at p. 812.

Since a voluntary acknowledgement may be made before birth for the benefit of the unborn child, it should also be possible to judicially establish paternity before birth. Barring an action to establish paternity until after birth delays receipt of any benefits long after that event. An early resolution of the question is in the interest of both the child and the state.

An action to prove filiation can be brought by a child or one acting “on his behalf”. LSA-C.C. art. 209. It may be brought “where conception occurred.” LSA-C.C.P. art. 74.1. These procedural articles indicate that the action need not await birth.

Since unborn children are regarded by the law as already born in property matters undertaken for their benefit, the trial court erred in sustaining the exception of prematurity.

For the foregoing reasons, the judgment of the trial court herein is reversed and the matter is remanded for further proceedings.

REVERSED AND REMANDED.

DIXON, C.J., and CALOGERO, J., concur.

MARCUS, J., dissents and assigns reasons.

DENNIS, J., concurs with reasons.

MARCUS, Justice

(dissenting).

I agree that responsibility for pre-natal and natal expenses, like the child’s postnatal right to support, rests with both parents. However, I do not consider that these property rights accrue to a child until the child is born alive. La.Civ.Code art. 28 provides that: “Children born dead are considered as if they had never been born or conceived.” The plain and clear meaning of art. 28 is that only when a child is born and born alive can it be determined that the child has a cause of action. Accordingly, I respectfully dissent.

      . Plaintiff alleged in her petition that she and defendant had a Moslem marriage ceremony and lived as husband and wife.

      . Planiol notes that the mother’s action for indemnity against her seducer is separate and apart from that belonging to the child. Planiol Civil Law Treatise, Vol. I, part 1, § 1524, p. 838.

      .In addition, if the suit was premature when filed, it must be dismissed and refiled. The dismissal would cancel plaintiff’s injunctive relief.

      . LSA-C.C. art. 954 provides:
      “The child in its mother’s womb is considered as born for all purposes of its own interest; it takes all successions opened in its favor since its conception, provided it be capable of succeeding at the moment of its birth.
      “And the child legitimated by a marriage posterior to its conception only takes those successions which are opened since the marriage of the father and mother.”

       Professor A. N. Yiannopoulos, W. R. Irby, Professor of Law, Tulane University.

      . LSA-C.C. art. 1482 provides:
      “In order to be capable of receiving by donation inter vivos, it suffices to be conceived at the time of the donation.
      “In order to be capable of receiving by last will, it suffices to be conceived at the time of the decease.
      “But the donations or the last will can have effect only in case the child should be born alive.”

      . A child can only be disavowed after birth. This is because “[T]he maxim that a child merely conceived is deemed to be born is applicable solely in its interests.” Planiol, supra, Vol. I, § 1426, p. 783. Here, we are not dealing with disavowal, contrary to a child’s interests, but establishing paternity, favoring a child’s interests.

      . LSA-C.C. art. 209 provides:
      “A. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgement under Article 203 must prove filiation by a preponderance of the evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this Article.
      “B. The proceeding required by this Article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation. “C. The right to bring this proceedings is heritable.”

      .LSA-C.C.P. art. 74.1 provides:
      “An action to establish filiation and support of a child may be brought in the parish: (1) of the domicile of the child, (2) where the conception occurred, (3) where either parent resided at the time of conception, (4) where an act of acknowledgement of the child occurred, or (5) where the birth of the child occurred.
      “An action to disavow filiation may be brought in the parish of the child’s birth, or where either parent resided at the time of that birth.”