author: BLANCHE, Justice. CALOGERO, Justice, LEMMON, Justice, DIXON, Chief Justice DENNIS, Justice,

text:
    STATE of Louisiana v. Lillian THOMPSON.
    No. 82-KK-2859.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
    Rehearing Denied March 23, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Mamoul-ides, Dist. Atty., William C. Credo, III, Andrea M. Price, Asst. Dist. Attys., for relator.
    Clifford E. Cardone, New Orleans, for respondents.
   BLANCHE, Justice.

This is a search and seizure case. We granted the state’s writ application to consider whether the trial judge properly suppressed evidence discovered by police officers during their investigation at a murder scene.

On May 18, 1982, several deputies from the Jefferson Parish Sheriffs Department arrived at defendant’s home in response to a report by the defendant’s daughter of a homicide. The deputies entered the house, made a cursory search and discovered defendant’s husband dead of a gunshot wound in a bedroom and the defendant lying unconscious in another bedroom due to an apparent drug overdose. According to the defendant’s daughter, the defendant had shot her husband, then ingested a quantity of pills in a suicide attempt, and then, changing her mind, called her daughter, informed her of the situation and requested help. The daughter then contacted the police. Upon their arrival, the daughter admitted them into the house and directed them to the rooms containing the defendant and the victim. The deputies immediately transported the then unconscious defendant to a hospital and secured the scene. Thirty-five minutes later two members of the homicide unit of the Jefferson Parish Sheriff’s Office arrived and conducted a follow-up investigation of the homicide and attempted suicide.

The homicide investigators entered the residence and commenced what they described at the motion to suppress hearing as a “general exploratory search for evidence of a crime.” During their search, which lasted approximately two hours, the detectives examined each room of the house. In the room where the victim was found, the investigators discovered a .25 caliber pistol inside a chest of drawers. During their search of an adjacent bathroom, a torn up note was found in the wastepaper basket. Another letter, an alleged suicide letter, was discovered in the bedroom from which defendant had been removed. The investigating officer entered the room and noticed a red Christmas card lying on top of a chest of drawers. Considering a Christmas card lying in the open during the month of May to be suspicious, the officer opened the card and discovered four folded sheets of paper upon which the alleged suicide message was written.

Following the defendant’s indictment for the second degree murder of her husband, she moved to suppress the evidence discovered by the homicide detectives. The investigating officers testified at the motion to suppress hearing that they had had time to secure a warrant prior to commencing their search, but did not. The detectives further testified that the deputies had searched for victims and suspects prior to their arrival and that theirs was a deliberate search for evidence. Upon hearing the evidence, the trial court initially denied defendant’s pretrial motion. Subsequently, defendant requested a reconsideration by the trial court in light of several decisions by this court and by the United States Supreme Court. The trial court granted her motion for reconsideration and partially reversed its original decision by suppressing two pieces of evidence, the gun and the suicide letter found in the Christmas card. The Court of Appeal denied the state’s application for a writ of review.

We granted the state’s application for writs to determine two questions:

(1) Whether the trial court had the authority to reconsider its earlier denial of the motion to suppress; and, if so,
(2) Whether the trial court properly suppressed the evidence seized by the officers as fruits of an illegal search.

1.

Initially, the state contends that the trial court erred when it reconsidered the original denial of the defendant’s motion to suppress.

Ordinarily, if the ruling on a motion to suppress is adverse to the defendant, he can reserve a bill of exceptions for use in a regular appeal of the case. See La.C.Cr.P. art. 703, Comment (f). However, nothing in the Code of Criminal Procedure prohibits the action taken in the present case.

In Louisiana, a ruling on a motion to suppress prior to trial is binding at the trial. La.C.Cr.P. art. 703 F. However, the implication of this limitation is that a ruling on a motion to suppress is not binding until trial begins.

Out of a concern for the expeditious treatment of a motion to suppress and because of other fairness and policy considerations, we have limited the “not binding before trial” implication of the Code. In State v. Landry, 339 So.2d 8 (La.1976), we held that the State may not seek a rehearing of the grant of a motion to suppress in order to put on new evidence to support the constitutionality of a search. Landry suggests further that a defendant may not seek a rehearing to introduce new evidence once a trial court denies his motion to suppress.

In the present case, however, the defendant did not seek to introduce additional evidence upon rehearing. Instead, he sought reargument and reconsideration of his motion based upon the evidence previously introduced. Thus, the concerns for time-consumption and the implications of possible unfairness addressed in Landry are not present in the instant case. The reconsideration by the trial judge of the applicable jurisprudence produced no delay in these proceedings. Although such re-considerations should be sparingly made and limited to instances when the trial judge firmly believes that his prior decision was legally infirm, such reconsiderations do not hamper, but actually promote, judicial efficiency.

Therefore, we conclude that the trial court did not abuse its discretion in reconsidering, for reargument without additional evidence, its earlier denial of the defendant’s motion to suppress.

2.

The second issue in this case is whether the warrantless search of the murder victim’s residence was reasonable under the federal and state constitutional restrictions governing searches and seizures.

In order to decide whether this evidence must be suppressed, we must examine the purpose behind the Fourth Amendment protection and the reasons behind its creation. From such an examination, we can determine whether, in light of these purposes and reasons, the search conducted by the police in this case was “unreasonable”.

The United States and Louisiana Constitutions expressly proscribe all “unreasonable searches and seizures.” U.S. Const, amend. IV, XIV; La. Const, art. I, § 5. Specifically, the Fourth Amendment to the United States Constitution assures the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Amendment was primarily a reaction to the evils associated with the use of the general warrant in England and the writs of assistance in the Colonies, and was intended to protect the “sanctity of a man’s home and the privacies of life” from searches under unchecked general authority. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). Thus, the purpose of the Amendment was to protect a citizen against unbridled and unjustified governmental invasions of the citizen’s privacy interests, specifically his own person, house, papers or effects.

The United States Supreme Court has expressed time and time again that the mandate of the Fourth Amendment, made applicable to the many states through the Fourteenth Amendment, requires adherence to judicial process and “that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions.” Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Footnotes omitted); see also Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Camera v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); State v. White, 399 So.2d 172 (La.1981); State v. Dowling, 387 So.2d 1165 (La.1980). This “per se” rule has been recently reaffirmed by the United States Supreme Court in Mincey v. Arizona, supra, and United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Yet the Court has never applied this rule automatically without an examination of the factual circumstances surrounding the search. The Court has consistently recognized that:

[T]he constitutionality of a particular search is a question of reasonableness and depends on “a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Mincey v. Arizona, 437 U.S. at 406 [98 S.Ct. at 2420-21] (Rehnquist, J., concurring), quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878 [95 S.Ct. 2574, 2579, 45 L.Ed.2d 607] (1975).

The “public interest” involves the societal costs incurred due to the exclusion of evidence seized in violation of the Fourth Amendment. Such evidence usually forms the basis of the case against the accused because it is factual, tangible evidence of the most reliable nature. Its exclusion results in a harm to society by interfering with the truthseeking function of a criminal trial. Society must absorb the cost of the exclusion’s result — that a violent criminal is returned to freedom within society. Thus, there is a public interest in bringing the criminal element of our society to justice.

The intrusion into the “sanctity of a man’s home and the privacies of life”, Boyd v. United States, supra, must be balanced with the public interest in bringing criminals to justice and with the societal costs involved in releasing a criminal back into society in determining whether a search is “unreasonable”. This balancing must be made by an examination of the totality of the circumstances surrounding the alleged illegal search to determine whether that search was “unreasonable” under the Fourth Amendment, cf. United States v. Brignoni-Ponce, supra; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Camera v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Common sense dictates that reasonableness varies with the circumstances of the search. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). Whether a particular search is unreasonable is something to be determined by the facts of a given case. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); see also Justice Black’s dissent in Vale v. Louisiana, 399 U.S. 30, 36, 90 S.Ct. 1969, 1973, 26 L.Ed.2d 409 (1970).

Defendant contends that Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), dictates that evidence seized during a warrantless search of a murder scene must be suppressed as the fruit of an illegal search. We find Mincey distinguishable from the facts of this case. In Mincey, an undercover policeman was shot and killed during a drug raid on the defendant’s apartment. The police secured the scene and then conducted an intense investigation of the scene without a warrant. The search lasted four days during which two to three hundred objects were examined, inventoried, and seized. The United States Supreme Court found that this extensive warrantless search was not justified under any exception to the warrant requirement, and as such, was unreasonable and illegal. The Court expressly found that the Arizona Supreme Court’s “murder scene” exception was inconsistent with the Fourth and Fourteenth Amendments because it left too much discretion with the police in determining the reasonableness of the search.

The Mincey case, however, involved a victim killed on another’s property. The policeman killed had no privacy interest in the apartment that was searched. In the case before us, the victim was killed in his own home. While the policeman shot in Mincey could not have consented to the search of the apartment he was shot in, as he had no authority over that apartment, Mr. Thompson had authority over the premises wherein he was killed and, had he survived until the police arrived, could have consented to their search even over the protests of the defendant. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); State v. Dowling, supra; State v. Dupuy, 319 So.2d 299 (La. 1975). Additionally, the two hour, same day search conducted at the Thompson residence was far less aggravated than the four day intensive investigation that was the subject of the Mincey opinion. For these reasons, we find the instant case distinguishable from Mincey.

Additional facts in this case evidence a diminished privacy expectation by the defendant. The defendant herself telephoned her daughter, informed her of the situation and requested assistance. The daughter then called the police, met them at the defendant’s residence, and let them in. The defendant was found in an unconscious state. The police were faced with a situation where both parties with authority over the premises were either dead or unconscious and in an apparently grave condition. A third party, defendant’s daughter, portraying an apparent authority over the premises through the defendant’s request for assistance, met and admitted the police to the premises. Thus, the defendant’s privacy interests under these facts are greatly diminished from those of the defendant in Mincey.

The need for Fourth Amendment protection is lessened as the privacy interest in an area is diminished. The reasons for preserving the sanctity of the home and the privacies of life find less support when the citizen claiming the right has exhibited a diminution of their privacy interest. At the same time, the public interest remains the same. In balancing this minor intrusion into the defendant’s diminished privacy interests against, the public interests, we come to the conclusion that the same day investigation conducted by the police was not unreasonable under the Fourth Amendment. We find that the intrusion by the police in conducting a two hour search, during which the .25 caliber handgun and the four page suicide letter were seized, when examined under the totality of the circumstances, was not so pervasive as to constitute an “unreasonable” search under the Fourth Amendment to the United States Constitution. Any privacy interest held by the victim passed with his death. The victim has no privacy interests to protect. The defendant, who shared a privacy interest in the premises with the victim, exhibited a voluntary diminution in her privacy interest when she herself summoned help. Under these facts, the search conducted by the police in this case was reasonable.

For these reasons, we find the seizures made by the police under these facts were reasonable. As such, the defendant’s motion to suppress any evidence gained through such a search should have been overruled.

DECREE

For the reasons stated, the ruling of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

CALOGERO, J., concurs and assigns reasons.

LEMMON, J., subscribes to the opinion and assigns additional reasons.

DIXON, C.J., and DENNIS, J., dissent with reasons.

CALOGERO, Justice,

concurring.

The United States and Louisiana Constitutions proscribe all unreasonable searches and seizures. U.S. Const, amend. XIV; La. Const.1974 Art. I, Sec. 5. The search in this case by police officers called to the scene and admitted to the premises by the daughter of a couple, one dead, and the other unconscious, was not unreasonable.

LEMMON, Justice,

subscribing to the majority opinion and assigning additional concurring reasons.

Although I fully subscribe to the majority opinion, I add these additional reasons why it would be unreasonable for this court to hold that the search was “unreasonable” under either La. Const., Art. I § 5 (1974) or the Fourth Amendment.

The Mincey decision, as is well illustrated in the majority opinion, is not controlling. There is a clear basis for distinguishing the relatively brief search of the murder victim’s own home from an extended four-day search of premises occupied by someone other than the murder victim. When a resident of the premises is murdered, there is a significant diminishing of the expectations of privacy of the other persons residing there. And when the police are called to the premises, are admitted inside by someone with apparent authority to do so, and are furnished reliable information establishing probable cause to believe that there may be physical evidence on the premises which might reveal (or confirm) the circumstances of the killing and the identity of the killer, then a prompt contemporaneous search is clearly justified.

Moreover, the police in this case were faced with the possibility that evidence might be destroyed. Under those circumstances, it would have been reasonable to secure the home (even against other occupants) during the time necessary to secure a search warrant. An equally reasonable means of preserving evidence was to conduct an immediate search based on probable cause, which should not be considered a “greater intrusion” necessitating prior judicial approval. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), in which the Court stated with regard to an automobile search:

“Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the ‘lesser’ intrusion is permissible until the magistrate authorizes the ‘greater.’ But which is the ‘greater’ and which the ‘lesser’ intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.” (Emphasis supplied.)

See also Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981) overruled by United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

All it would take to make this search legal is a warrant.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The major issue presented by this case is whether the warrantless search of the defendant’s residence for evidence violated the state and federal prohibitions against unreasonable searches and seizures.

The United States and Louisiana Constitutions expressly proscribe all “unreasonable searches and seizures.” U.S. Const. amend. XIV; La. Const.1974, art. I, § 5. It is a cardinal principle of constitutional law that searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable— subject only to a few specifically established and well-delineated exceptions. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1968); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); State v. Ludwig, 423 So.2d 1073 (La.1982); State v. White, 399 So.2d 172 (La.1981). Once the defendant makes the initial showing at a motion to suppress hearing that a war-rantless search occurred, the burden of proof shifts to the state to affirmatively show that the search is justified under one of the narrow exceptions to the rule requiring a search warrant. State v. Franklin, 353 So.2d 1315 (La.1977); La.C.Cr.P. art. 703 D; See also, Lafave, Search and Seizure — A Treatise on the Fourth Amendment, § 6.6 (1978). Counsel for the State asserts that this affirmative showing was made, arguing that the report of a homicide justified the officers’ warrantless entry into defendant’s home and that the Christmas card and suicide note which were “in plain view” were properly seized.

The United States Supreme Court in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), held that a “murder scene exception” to the warrant requirement created by the Arizona Supreme Court is inconsistent with the Fourth and Fourteenth Amendments, and restated the rules governing the search of a person’s home. Warrants are generally required to search a person’s home or his person unless the exigencies of the situation make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment. Mincey v. Arizona, supra, at 394, 98 S.Ct. at 2414, 57 L.Ed.2d at 301; McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153, 158 (1948). For example, the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Similarly, when the police come upon the scene of a homicide they may make a prompt, war-rantless search of the area to see if there are other victims or if a killer is still on the premises. Mincey v. Arizona, supra, 473 U.S. at 392, 98 S.Ct. at 2413, 57 L.Ed.2d at 300. Cf. Michigan v. Tyler, 436 U.S. 499, 509-10, 98 S.Ct. 1942, 1949-50, 56 L.Ed.2d 486, 498-99 (1978). A warrantless search must, however, be “strictly circumscribed by the exigencies which justify its initiation.” Mincey v. Arizona, supra, 437 U.S. at 393, 98 S.Ct. 2413, 57 L.Ed.2d at 300, citing Terry v. Ohio, 392 U.S. 1, 25-26, 88 S.Ct. 1868, 1882, 20 L.Ed.2d 889, 908 (1968). See also Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (search of arrested suspect and area within his control for weapons or evidence); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (“hot pursuit” of fleeing suspect); Schmerber v. California, 384 U.S. 757, 775, 86 S.Ct. 1826, 1838, 16 L.Ed.2d 908 (1966) (imminent destruction of evidence). In sum, when an exigent circumstance, such as a report of a homicide, is used as the reason for operating in an otherwise illegal manner, the search must be limited to the parameters of the exigency itself. Satchell v. Cardwell, 653 F.2d 408 (9th Cir.1981).

Applying these precepts, it is clear that the trial judge correctly suppressed the gun and the suicide note as products of an unlawful warrantless search.

The deputies first summoned to the murder scene were entitled to make, and did make, a prompt warrantless search of the premises to see if there were other victims or persons in need of immediate aid or if a killer was still on the premises. Their search was strictly confined to these purposes.

The search conducted by the homicide detectives which resulted in uncovering the gun and suicide note, however, was not a response to an emergency situation because the detectives could not have reasonably believed that there was anyone within the house who was a victim, culprit or a person in need of aid. As the detectives were aware, before they began their search, their fellow officers had surveyed the premises for other persons, removed the occupants and secured the house against intruders. The detectives frankly testified that they had ample time to obtain a warrant, but chose not to do so, and that the suicide note was discovered during a systematic search for evidence.

The state strenuously argues, however, that the alleged suicide note was properly seized as it was in plain view during the course of the legitimate emergency activities. Michigan v. Tyler, supra, 436 U.S. at 509-10, 98 S.Ct. at 1950, 56 L.Ed.2d at 498; Coolidge v. New Hampshire, 403 U.S. 443, 465-66, 91 S.Ct. 2022, 2037-38, 29 L.Ed.2d 564, 582-83 (1971).

The seizure fulfilled none of the requisites of the plain view rule, however. The conditions necessary for the discovery of evidence in “plain view” and subject to seizure are: (1) there must be a prior justification for the officer’s intrusion into a protected area, (2) in the course of which evidence is discovered inadvertently, and (3) where it is immediately without close inspection that the items are evidence or contraband. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Fearn, 345 So.2d 468 (La. 1977); See also, State v. Meichel, 290 So.2d 878 (La.1974). In the instant case, none of the conditions essential to a plain view seizure were met. As we noted earlier, the homicide detectives’ intrusion into the defendant's home was not justified, because the limited search for casualties, captives, victims or culprits necessitated by the exigency had been fully performed by other officers and the detectives admitted that their intrusion was purely a search for evidence under non-exigent circumstances. The note was not discovered inadvertently, but was found during this intentional detailed search for evidence. It was not immediately apparent that a note was inside the closed card, and it was certainly not apparent that the closed card contained evidence of the homicide. Accordingly, the seizure of the note cannot be sustained by the plain view exception to the warrant requirement.

Therefore, it is clear that the detectives did not respond to an emergency situation but engaged in a deliberate warrantless search for evidence which is proscribed by the Fourth Amendment. The initial entry by the other officers was unquestionably a lawful response to an emergency situation. But, the general warrantless search by the two homicide detectives who arrived at the murder scene after the victim had been discovered, the defendant had been taken to the hospital, a search for other occupants had been made, and the scene had been secured, was clearly illegal and unjustified because of the absence of any emergency or exigency. Mincey, supra, 437 U.S. at 393, 98 S.Ct. at 2413-2414. Further, this court should not accept, for the reasons outlined above, the State’s contention that the challenged search and seizure fell within the ambit of the plain view exception to the warrant requirement.

At oral argument and in deliberations this court has considered at least two approaches toward limiting the principle of the Mineey case. First, by limiting its holding strictly to its facts; and, second, by constructing a theory of implied consent whereby it could be presumed that a victim slain in his own home has given permission for a general search in connection with the detection and apprehension of his murderer. See Lafave, supra § 6.5(e). Careful consideration of the Mineey opinion, however, convinces me that neither interpretation is warranted.

The facts of the present case are different from Mineey in that here the victim was slain in his own home and the intrusion by the homicide detectives was not as aggravated as the four day intensive search performed by the officers in Mineey. Nevertheless, the principles of the Mineey decision clearly have application beyond the particular facts of that case. The court began by reaffirming the principle stated in Katz v. U.S., supra that a search conducted without a warrant issued on probable cause is per se unreasonable subject only to a few specifically established and well delineated exceptions. The opinion-flatly rejected the idea that the search of a homicide scene, without more, should be considered as a valid generic exception. Mincey, supra at 390, 391, 98 S.Ct. at 2412, 2413. In totally rejecting the Arizona murder scene exception, the high court was aware that the Arizona cases indicated that the exception had been applied in instances in which homicides had occurred at the home of the victim. Mincey, supra at 392 n. 5, 98 S.Ct. at 2413 n. 5. The Mineey opinion recognized that within the “few specifically established and well delineated exceptions” are certain emergency situations, viz., entries and searches upon reasonable belief that a person within is in need of immediate aid or a prompt warrant-less search to see if there are other victims or if a killer is still on the premises. But the Court clearly indicated that such an exceptional warrantless search must be strictly circumscribed by the life or limb threatening emergency which justifies its initiation. Finally, the court rejected Arizona’s argument that a murder scene exception should be permitted because the search could be confined in scope and intensity by guidelines such as those set forth by the Arizona Supreme Court. In rejecting this approach, the court noted that Arizona would confer unbridled discretion upon the individual officer to interpret such terms as “reasonable ... search” “serious personal injury with likelihood of death where there is reason to suspect foul play”, and “reasonable period”, and that it is precisely this kind of judgmental assessment of the reasonableness and scope of a proposed search that the Fourth Amendment requires be made by a neutral and objective magistrate, not a police officer. Mincey, supra at 396, 98 S.Ct. at 2415.

Consequently, it is clear that the high court has limited murder scene searches to those strictly necessary to deal with emergencies threatening life and limb or to apprehend a killer on the premises. Whether the victim was slain in his own home or elsewhere is not relevant. Nor is the intensity or aggravated nature of the search, if the intrusion is not authorized by an emergency situation. Therefore, since the evidence is clear that there was no emergency at the time the search complained of in the present case was conducted, the intrusion was plainly unjustified and the trial court was correct in suppressing its fruits as evidence.

      . See generally LaFave, Search and Seizure, a Treatise on the Fourth Amendment, § 1.1 (1978); J. Landynski, Search and Seizure and the Supreme Court (1966); N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution (1937).

      . A contrary decision could also raise an extremely disturbing prospect under the "expanded standing” rule of La. Const. Art. I, § 5 (1974), if an uninvited intruder, after murdering a homeowner, claimed that a police search (such as conducted here), was unreasonable from the standpoint of other occupants of the home and sought to have the "fruits” of the search suppressed.

      . See the concurring opinion of Justice Rehnquist in Mincey. Similarly, the occupants of a home seriously harmed by a fire suffer significant reduction in privacy for a reasonably prompt fire marshal’s investigation into the cause of the blaze. See Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978).

      .In cases involving automobile searches, the Court has indicated a willingness to recognize the reasonableness of probable cause-based war-rantless searches because of the diminished expectation of privacy. The surviving occupants of a home in which another occupant (not an intruder) has been murdered, suffer a significant diminution in their expectations of privacy in that home for a reasonably brief period during which police conduct a reasonable search (both in scope and duration) for evidence tending to identify and prove the guilt of the murderer of the resident (even if that murderer happens to be another person who may claim a reasonable expectation of privacy in those premises).


source: Caselaw Access Project

author: LEMMON, Justice. CALOGERO, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Raymond CAPTVILLE.
    No. 82-KA-2206.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
    Rehearing Denied March 23, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Louis G. Garrot, Asst. Dist. Atty., for plaintiff-appellee.
    Anthony J. Fontana, Jr., Abbeville, for defendant-appellant.
   LEMMON, Justice.

This is an appeal from a conviction of manslaughter. The only issue is the sufficiency of the evidence.

Facts

On the evening of June 9, 1981, Miriam Boudreaux was killed by a gunshot while she and defendant were alone in the apartment that they shared. The weapon from which the shot was fired was a .38 caliber derringer belonging to defendant. She and defendant had been living together for three years, although defendant was still married. Ms. Boudreaux was pregnant at the time of her death.

Defendant testified at trial that he and Ms. Boudreaux had spent an uneventful evening. They had been seriously discussing the prospect of marriage after he obtained a divorce from his wife and had looked at wedding rings earlier that day (a fact confirmed by the owner of the jewelry store). After eating dinner, they went out to watch a ballgame and then returned to their apartment to watch television. Defendant further testified that he brought the derringer from his car into the apartment and placed it on the coffee table. After the couple went to bed, Ms. Bou-dreaux asked if he had moved .the gun from the coffee table, whereupon she got out of bed and headed for the living room. Moments later, defendant heard two noises in rapid succession, the second being a gunshot. He ran to the living room to find Ms. Boudreaux standing with her arms over her head. According to defendant, she appeared to have been shot, and she began to move toward him. He laid her down on the floor and told her not to move. When he attempted to place a pillow under her head, he knocked a picture of his son off the top of the television set. He threw the picture across the room and placed the pillow under her head. Clad only in a T-shirt and gym shorts, he ran across the hall to the apartment of his neighbor, John Williams.

Williams testified that he heard a loud noise and that defendant pounded on his door about 45 seconds later, asking him to call the police and an ambulance. Williams rushed to defendant’s apartment, where he found Ms. Boudreaux lying on the living room floor, dressed only in a short nightgown. She was bleeding from her nose and mouth, but was still breathing. Williams then rushed back across the hall to his apartment to obtain some towels. When he returned some 10 to 15 seconds later, he noticed that defendant appeared to be changing clothes. He also saw, for the first time, a chrome-plated derringer with a pearl handle on the floor, about two feet from Ms. Boudreaux’s body. Williams was certain that the pistol had not been there seconds earlier when he first saw her body. By the time a member of the police force arrived a few minutes later, Ms. Bou-dreaux was dead.

Expert evidence established that the fatal shot had been fired from a distance of at least two and one-half to three feet from Ms. Boudreaux’s body. The bullet entered her body 50 inches above her heel and lodged in her back at a point 50¾ inches above her heel. The relationship between the entry wound and the location of the slug (including the path of the bullet) suggested that the weapon which fired the fatal shot must have discharged when pointing at a right angle to the frontal plane of Ms. Boudreaux’s upright body, that is, that the muzzle was “pointed” directly at her. The bullet entered her body in the upper left side of her chest and passed through her heart, aorta and lungs before lodging against her back. Due to the severity of the injuries caused by the bullet’s path through vital organs, the autopsy surgeon estimated that death must have occurred within about 10 minutes and unconsciousness within about four minutes.

Testing of swabs of defendant’s hands and Ms. Boudreaux’s hands to determine the presence of gunpowder residue was inconclusive.

Defendant was arrested and indicted for second degree murder. La.R.S. 14:30.1. A jury convicted him of the responsive offense of manslaughter.

Standard of Appellate Review

In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). That standard, which was adopted by the Legislature in enacting La.C.Cr.P. Art. 821 pertaining to postverdict motions for acquittal based on insufficiency of evidence, is that the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.

A defendant is entitled to have the trial judge instruct the jurors that the evidence must satisfy them that defendant’s guilt has been proved beyond a reasonable doubt and that they must give defendant the benefit of every reasonable doubt arising from the evidence or the lack of evidence. La.C.Cr.P. Art. 804 A. In cases involving circumstantial evidence, a defendant is additionally entitled under the provisions of La.R.S. 15:438 (formerly Article 438 of the 1928 Code of Criminal Procedure) to have the trial judge instruct the jurors that they must be satisfied the overall evidence “excludes every reasonable hypothesis of innocence”.

Thus, a defendant has a statutory right to an instruction that the jurors must conclude that no reasonable hypothesis of innocence exists, as well as a constitutional (and statutory) right to appellate review of the record for sufficiency of the evidence. An appellate court reviewing the sufficiency of evidence must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. As stated by this court in State v. Chism, 436 So.2d 464, 470 (La.1983), La.R.S. 15:438 “may not establish a stricter standard of review than the more general reasonable juror’s reasonable doubt formula, [but] it emphasizes the need for careful observance of the usual standard, and provides a helpful methodology for its implementation in cases which hinge on the evaluation of circumstantial evidence”.

Appellate Review in the Present Case

The circumstances clearly ruled out the possibility of suicide. Not only was there no evidence indicating that Ms. Bou-dreaux would have wanted to take her life, but also the physical evidence excluded the possibility that she shot herself. Further, defendant’s own version of the events of the evening ruled out the possibility that an unidentified assailant may have inflicted the fatal wound. Thus, the jury was presented with only two theories of the homicide: the state’s theory that defendant intentionally shot the victim and defendant’s theory that the victim dropped the gun, causing it to discharge accidentally.

The jury’s verdict of guilty of manslaughter obviously reflects a “compromise” between a verdict of guilty as charged (of an intentional and unprovoked killing) and a verdict of not guilty, which the jurors would have been required to return if they had believed defendant’s totally exculpatory version. The verdict, whatever it reflects regarding defendant’s state of mind, certainly reveals a plain rejection of defendant’s “accidental discharge” theory. Nevertheless, while the jurors obviously rejected defendant’s denial that he had handled the gun and found that defendant had fired the fatal shot (rather than that the gun discharged accidentally when she dropped it or knocked it over, which was the only apparent alternative theory), the manslaughter verdict does not necessarily reflect a finding that defendant acted with an intent to kill or inflict great bodily harm. The jurors could have returned this verdict based on a finding that defendant, while pointing the pistol at the victim intending to frighten her, accidentally shot her to death. See La.R.S. 14:31(2)(a) which defines manslaughter as an unintended killing during the perpetration of an assault. See also La.R.S. 14:36, 37 and 38.

The jury also apparently resolved against defendant the conflict in testimony as to the presence of the gun on the floor near the body when Williams first entered the apartment. The jurors must have concluded that defendant, after Williams left to retrieve towels, placed the derringer on„the floor near Ms. Boudreaux’s body. Once the jurors chose to credit Williams’ emphatic statement that the gun was not there when he first entered the apartment, the only explanation for the subsequent presence of the pistol was that defendant put it there, since no one else was in the apartment except the dying woman.

The jurors also apparently concluded that Ms. Boudreaux was shot by someone who was pointing the pistol directly at her. That conclusion is reasonably supported by the evidence. The location of the entry wound and the path of the bullet are entirely consistent with a well-aimed shot directed toward vital areas of the victim’s body. A crime laboratory expert did testify that the derringer could have discharged if it had been dropped directly on the “stem” (the tip of the hammer). However, it is hardly a reasonable hypothesis that Ms. Boudreaux dropped the pistol hard enough on the carpeted floor so that it would have struck the exact point on its stem, causing it to discharge into her body, at the precise time that her body was bent over so that the bullet entered at a right angle to the frontal plane of her body. Moreover, the crime laboratory expert further testified that the pistol’s falling and discharging would have made only one sound audible to the human ear — the sound of the discharge. This contradicted defendant’s trial testimony that he heard two sounds in very rapid sequence, the second being a discharge of the pistol.

Defendant argues, however, that the location of the bullet hole in the victim’s nightgown (46 inches from her heel), in relation to the location of the entry wound (50 inches from the heel), indicates an upward angle of travel, which is inconsistent with a conclusion that the bullet traveled at a right angle to the frontal plane of an upright body. However, the location of the hole in the garment was consistent with the location of the entry wound if Ms. Bou-dreaux had raised her hands instinctively in fright and shock as she faced a lethal weapon purposely pointed in her direction, causing the gown to rise up on her body. Moreover, if the gown was down in its regular position at the time of the shooting, the hole in the garment, four inches below the location of the entry wound and 4¾ inches below the location at which the bullet lodged in the victim’s back, is totally inconsistent with any angle of travel.

The evidence that the pistol was not on the floor when Williams first entered the apartment and was there upon his return seconds later points unmistakably to defendant’s having placed the gun near the body. Williams’ testimony, coupled with defendant’s adamant denial that he handled the gun, could have led the jurors to reasonably conclude that defendant put the gun next to the dying woman in an effort to support a concocted story of accidental discharge. The broken picture across the room was also indicative (although certainly not conclusive) of an argument or of violence.

Further, the jurors obviously (and reasonably) concluded that defendant’s version of the events immediately preceding the fatal shot was a fabrication designed to deflect blame from him. His testimony that he did not move the gun and his testimony that he heard two noises (the second being a gunshot) in rapid sequence were discredited by other evidence. Under these circumstances, the jurors’ conclusion that defendant was not testifying truthfully could reasonably support an inference that the “truth” — if told by him as the only survivor of the two people in the apartment — would have been unfavorable to his “accidental discharge” defense.

When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. An evaluation of the reasonableness of other hypotheses of innocence provides ⅜ helpful methodology for determining the existence of a reasonable doubt. As we have recognized in such cases as State v. Wright, 445 So.2d 1198 (La.1983), State v. Graham, 422 So.2d 123 (La.1982), and State v. Sutton, 436 So.2d 471 (La.1983), the court does not determine whether another possible hypothesis has been suggested by defendant which could explain the events in an exculpatory fashion. Rather, the reviewing court evaluates the evidence in the light most favorable to the prosecution and determines whether the alternative hypothesis is sufficiently reasonable that a rational juror could not “have found proof of guilt beyond a reasonable doubt”. Jackson v. Virginia, above.

The jury’s verdict reflected a reasonable construction of the events of the evening based upon the evidence viewed in the light most favorable to the prosecution. The evidence clearly ruled out any theory of suicide or of a shooting by an intruder; the jury reasonably rejected defendant’s version of a discharge when the gun was dropped or knocked over; and there does not appear to be any other hypothesis which raises a reasonable doubt as to defendant’s guilt. Thus, we cannot say that a rational juror could not have voted to convict.

Defendant’s conviction and sentence are affirmed.

DIXON, C.J., concurs.

CALOGERO, J., concurs and assigns reasons.

CALOGERO, Justice,

concurring.

Upon review, I find the evidence in this case sufficient to support a verdict of guilty as a matter of law both under La. R.S. 15:438 [“assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence”] and under the constitutional due process standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) [any rational trier of fact in viewing such evidence in the light most favorable to the prosecution must conclude that the state proved the essential elements of the crime beyond a reasonable doubt].

      . The Official Revision Comment to Article 821 clearly reveals the legislative intent to adopt the Jackson standard for both trial and appellate court review of sufficiency of evidence to sustain a jury verdict, when that verdict has been challenged by a motion for a postverdict judgment of acquittal.

      . The Jackson standard is an objective standard for testing the overall evidence, direct and circumstantial, for reasonable doubt. See the special concurring opinion in United States v. Bell, 678 F.2d 547, 550 (5th Cir.1982), which states:
      "To say that the evidence is sufficient if ‘a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt,' is not substantively different from saying that the evidence is sufficient if a reasonable trier of fact could find that the ‘evidence was inconsistent with every reasonable hypothesis of innocence. United States v. Marx, 635 F.2d 436, 438 (5th Cir.1981). It is true that '[i]t is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt,' but it is equally true that if a hypothesis of innocence is sufficiently reasonable and sufficiently strong, then a reasonable trier of fact must necessarily entertain a reasonable doubt about guilt.”

      . This type of accidental discharge required a sharp blow and did not happen every time the expert dropped the derringer during his tests.

      . Such a finding of purposeful misrepresentation reasonably raises the inference of a "guilty mind”, just as in the case of "flight” following an offense or the case of a material misrepresentation of facts by a defendant following an offense. See State v. Davenport, 445 So.2d 1190 (La. 1984). "Lying" has been recognized as indicative of an awareness of wrongdoing. See State v. Rault, 445 So.2d 1203 (La. 1984), in which this court, in rejecting as unreasonable an asserted "hypothesis of innocence" (based on defendant’s own statement), stated:
      "The jury could have reasonably concluded that Rault concocted this version of the crime to hide his own guilt”. 445 So.2d at 1213.
      Any contrary implications in State v. Savoy, 418 So.2d 547 (La.1982), and State v. Shapiro, 431 So.2d 372 (La.1983), simply mean that such evidence, although admissible to support a "guilty mind”, are not alone sufficient to convict.


author: DIXON, Chief Justice.

text:
    Isabel MITCHELL v. Willie CLARK, Jr. et al.
    No. 83-C-1204.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
    Rehearing Denied March 23, 1984.

      C. William Gerhardt, Shreveport, for applicant.
    Barry G. Feazel, S. Judd Tooke, Walker, Feazel & Tooke, Shreveport, for respondents.
    W. Orie Hunter, Jr., in pro. per.
   DIXON, Chief Justice.

Isabel Mitchell brought this suit against Willie Clark, Jr., her nephew, and W. Orie Hunter, Jr., Clerk of Court of Caddo Parish, to have Hunter directed to change the conveyance records to show Mitchell as the owner of a piece of immovable property instead of Clark, as the record now appears. Mitchell alleges that she is the true owner of the property and has been since its purchase from Harriet Holmes in 1958.

Over defendant’s pretrial exception and objection at trial, the trial judge admitted evidence pertaining to Mitchell’s ownership of the property. Following Cosey v. Cosey, 376 So.2d 486 (La.1979), the trial judge held that neither Mitchell nor Clark were bound by the authentic act transferring the property because neither had signed that authentic act, and found that Mitchell had paid the purchase price for the home and had paid the taxes and all other costs relating to the property. He ordered the clerk to transfer the property into Mitchell’s name.

The court of appeal reversed, sustaining the defendant’s exception of no cause of action, and held that parol evidence was not admissible to prove Mitchell’s title.

Isabel Mitchell negotiated with Holmes (who lived in Kansas City) for the purchase of a piece of immovable property located at 1718 Rex Street, Shreveport, Louisiana. She presented the sum of $1200.00 cash to an agent of Holmes as the purchase price, and specifically stipulated that Willie Clark be named the vendee.

Holmes, acting on Mitchell’s instructions, executed a deed in authentic form conveying the property to Willie Clark, a single man who lived in Atlanta, Georgia. Neither Clark nor Mitchell signed the authentic act. Clark did not even know of the transaction. The deed was recorded in the Caddo Parish Conveyance Records on July 9, 1958.

Since that sale, Mitchell has paid all expenses related to ownership of the home, has made improvements to the home and has lived in the same as her own. Clark did not learn that he was the beneficiary of this sale until some time in 1981. It was then that he sought to occupy the home as owner, prompting this action by the plaintiff.

In response to Mitchell’s petition to have the vendee’s name changed from Clark’s to hers, Clark filed an exception of no cause of action. He stated that Mitchell’s petition failed to allege any fraud, error or counter letter which would permit parol evidence to be adduced at trial in attacking an authentic act. He argued that Mitchell was precluded from offering parol evidence to create title in one who never owned the land, and that she had no case without the parol. The exception was overruled.

The defendant did not appear at trial, but was represented by counsel. He objected to the admission of parol evidence, but the objection was overruled. The judge treated the defendant’s absence at trial, and consequent failure to testify, as a confession under oath that the allegations of the plaintiff's petition were true. Because a verbal sale of an immovable is recognized when confessed under oath, provided actual delivery has been made (C.C. 2275), the trial judge recognized Mitchell as the true vendee and ordered Hunter to transfer the property into her name.

When a witness known to the defendant in a civil proceeding is not called by the defendant to testify, our courts have inferred or presumed that the witness would not have testified in favor of the defendant. Bates v. Blitz, 205 La. 536, 547, 17 So.2d 816, 820 (1944). The trial judge was allowed to presume, by the defendant’s absence, that his testimony would not support his own case, but he was in error to give this rebuttable presumption the effect of a judicial confession. Crawford v. Deshotels, 359 So.2d 118, 122 (La. 1978).

Clark took a devolutive appeal. A five judge panel, with one judge dissenting, reversed and sustained the exception of no cause of action. Mitchell v. Clark, 431 So.2d 817 (La.App.1983). The court of appeal was convinced that parol evidence should not be admitted to prove title in one who never had title. It quoted Barbin v. Gaspard, 15 La.Ann. 539, 540 (1860): “... plaintiff claims title ... by virtue of a sale, but is without any evidence in writing, ... arid relies on testimonial proof to establish her demand. Evidence of this kind is insufficient to establish title ...”

Mitchell then sought review by this court.

The trial judge correctly denied Clark’s exception of no cause of action, and correctly permitted Mitchell to produce whatever documents that might support her position. Mitchell was a party to the transaction that resulted in naming Clark the vendee of the Rex Street property, but Mitchell was not a party to the authentic act by which the property was actually transferred. Clark was a party neither to the transaction nor the act. Written evidence, therefore, was admissible.

But the trial judge should not have permitted the oral or testimonial proof of any facts relating to the land purchase because this litigation concerns the ownership of an immovable whose sale was effected by a written act. No mutual error in the description of lands is claimed. Nor is this an action by a vendor who alleges fraud or error, or by an heir or a creditor who argues that no sale has taken place and that the property remains in the vendor’s estate.

By paying the purchase price, Mitchéll had a right to demand that a deed transla-tive of title be executed in her favor; she chose, instead, to have the property transferred to her nephew. The property was conveyed in accordance with the plaintiff’s instructions. She brings this action not based on error, but based on a change of mind.

Mitchell contends that when she paid the purchase price, she intended that Clark have the property only after her death. She had the property put into Clark’s name to ensure that he received it without the expense and bother of succession proceedings. “A gift during the life of the donor, not to take effect until after the death of the donor and not in the proper form for a donation mortis causa, is a donation causa mortis reprobated by the law of this state." Succession of Simpson, 311 So.2d, 67, 73 (La.App.1975), writ denied, 313 So.2d 839 (La.1975); Succession of Sinnott v. Hibernia National Bank, 105 La. 705, 715, 30 So. 233, 238 (1901); see C.C. 1467, 1469, 1570.

Both lower courts were correct in determining that Mitchell’s gift was not in proper form to have its desired effect. It lacked the formality required of a donation of an immovable inter vivos, and was the reprobated donation causa mortis not honored under our law. C.C. 1467. Mitchell’s intention, to own the property during her lifetime and then convey it automatically by her death, could not be satisfied.

In two separate articles the Civil Code requires a writing to transfer immovable property. “Every transfer of immovable property must be in writing ...” C.C. 2275. “All sales of immovable property shall be made by authentic act or under private signature.” C.C. 2440. The writing provides reliable evidence of the parties’ consent. It provides certainty and diminishes the possibility of fraud. 35 La. L.Rev. 779 (1975).

However, in the absence of a writing, a verbal sale of an immovable is effective if the delivery has been made and if the sale is confessed by the contesting parties under oath. C.C. 2275; Barbin v. Gaspard, supra. The answers of a party when interrogated under oath supply the place of written proof. Wright-Blodgett Co. v. Elms, 106 La. 150, 30 So. 311 (1901).

Louisiana courts have admitted parol evidence to show error in the description of lands when, because of accident or negligence, the instrument does not express the meaning and intention of the contracting parties. Agurs v. Holt, 232 La. 1026, 95 So.2d 644 (1957); Palangue v. Guesnon, 15 La. 311 (1840). “The reception of parol evidence to establish a clerical error, ... is no infringement of the rule which demands that title to real estate be evidenced in writing only.” Levy v. Ward, 33 La.Ann. 1033, 1035 (1881).

That action, sometimes called an action for reformation of a deed, seeks to correct the mutual error or mistake that occurred in the preparation of the instrument. The property description is changed to describe the property which the vendor intended to sell and which the vendee intended to purchase. Brulatour v. Teche Sugar Co., 209 La. 717, 25 So.2d 444 (1946); Waller v. Colvin, 151 La. 765, 92 So. 328 (1922).

Parol evidence is admissible to invalidate a sale when the vendor was induced to sell by fraud or error. Baker v. Baker, 209 La. 1041, 26 So.2d 132 (1946); LeBleu v. Savoie, 109 La. 680, 33 So. 729 (1903). It is also admissible to show that a sale did not take place, and that the property continues to belong to the pretended vendor. Hodge v. Hodge, 151 La. 612, 92 So. 134 (1922).

Parol evidence can be used by a creditor to bring back into the estate of the debtor property which the debtor has fraudulently transferred, as in a revocatory action. C.C. 1970. It may be used by forced heirs to annul simulated contracts of those from whom they inherit. C.C. 2239.

However, parol "... is insufficient to create a title in one who never owned the property or to show that the vendee was in reality some other person than the person named in the act of sale.” Scurto v. LeBlanc, 191 La. 136, 184 So. 567 (1938); Ceromi v. Harris, 187 La. 701, 706, 175 So. 462, 464 (1937). This rule applies whether the party proffering the parol is an heir of the alleged vendee, Eberle v. Eberle, 161 La. 313, 317, 108 So. 549, 551 (1926), or a creditor of the alleged vendee, Hoffmann v. Ackermann, 110 La. 1070, 1076, 35 So. 293, 295 (1903).

It is the policy of this state that acts appearing to transfer immovable property be read and interpreted from the face of the instrument. “... there would be no security whatsoever for purchasers of real estate, if they were not entitled to rely upon the title deeds to such property, as being exactly what they purport to be.” Beard v. Nunn, 172 La. 155, 159, 133 So. 429, 430 (1931).

“The courts have been unwilling to throw themselves open to a potential contest of veracities every time property is sold.” 29 Tul.L.Rev. 29 (1954). “What the plaintiff alleges may be true; yet it is far better that he suffer the penalty of his own negligence than that the door to fraud and perjury be thrown open and titles to real estate be rendered insecure.” Hackenburg v. Gartskamp, 30 La.Ann. 898, 901 (1878).

As with any other writing, "... where a party to an authentic act alleges that he executed it through fraud or error, he is permitted to introduce parol testimony to support such allegations.” Unity Industrial Life Ins. Co. v. Dejoie, 202 La. 249, 260-61, 11 So.2d 546, 549 (1942).

But an authentic act only binds parties to the act and their representatives in suits between the parties or their representatives. Smith v. Chappell, 177 La. 311, 148 So. 242 (1933). “In any controversy, therefore, between a party to the act and a stranger, the party to the act is as free to avail himself of parol evidence for contradicting or varying the act as the stranger is.... ” Commercial Germania Trust & Savings Bank v. White, 145 La. 54, 58, 81 So. 753, 755 (1919).

In Cosey v. Cosey, supra, Sidney Cosey entered into a bond for deed contract during the existence of his first marriage for the purchase of immovable property. His last payment for that property was made during that marriage, but the act of sale was executed and recorded only after Co-sey had divorced and remarried. During this second marriage the vendor transferred title, naming Cosey and his second wife as vendees.

After Cosey's death, plaintiff, a child of the first marriage and sole heir of Cosey, sought a judgment decreeing that the property belonged to the community previously existing between his parents and belonged to him alone. The trial judge held that the second wife was to return the property, since she had been unjustly enriched. The court of appeal reversed, finding that the property was a part of the second community. On rehearing, this court reversed and held that Cosey and his first wife had owned the property, and that the second wife, the named vendee, owned no interest in it.

Neither the plaintiff nor the defendant in Cosey had signed the authentic act transferring the property, so neither was bound by it, and either could introduce evidence to refute it. However, because the authentic act effected the transfer of immovable property, only written evidence was admissible to prove any rights with respect to the property. C.C. 2276: “Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.”

The plaintiff in Cosey, using written evidence only, showed that the property in question had been paid for in full during the existence of the community between his parents. He did not show, however, that title to the property was transferred during the marriage, or that his mother was ever a title holder of that property.

Because the plaintiff was able to substantiate his case with written evidence— receipts for payment, marriage and birth certificates, and a dated letter acknowledging payment in full—the rule excluding pa-rol (oral) evidence was inapplicable in the Cosey case. Cosey is distinguishable from the case now before us: (1) the land had been paid for, and the right to the deed had been acquired during the first community; (2) plaintiff Cosey was a forced heir (as noted in footnote 1 at 376 So.2d 489) and was entitled to attack what can be analogized to a “simulated contract” (C.C. 2239) of his father.

The admissible evidence in this case establishes that Mitchell paid Holmes for the lot, and that Holmes followed Mitchell's instructions and executed a deed to Clark. The inadmissible evidence establishes that Mitchell’s intention—to make a gift of immovables to take effect upon Mitchell’s death—could not be accomplished in the way attempted.

We cannot give relief to the plaintiff without abrogating the consistent rule of property that excludes parol evidence to prove that one not named in the deed is the real vendee.

The judgment of the court of appeal is amended and, as amended, affirmed, and there is now judgment in favor of defendants, Willie Clark, Jr. and W. Orie Hunter, Jr., dismissing plaintiffs suit at her cost.

LEMMON, J., dissents.

      . The relevant portions of the petition are:
      "2. On July 5, 1958, the plaintiff paid cash to Mrs. Harriett Holmes, for the conveyance of certain immovable property in Caddo Parish, Louisiana; it was plaintiffs desire and intent when purchasing said property to place it in the name of the defendant, WILLIE CLARK, JR., to herself live in the property until her death and have the property go to the said WILLIE CLARK, JR., upon her death; accordingly, the property was transferred into the name “Willie Clark” by deed which is recorded at Book 839, Page 729 of the Conveyance Records of Caddo Parish, Louisiana; a copy of said deed is attached hereto and made a part hereof by reference.
      3. Since said purchase, the plaintiff has paid all expenses related to the home located at the property referred to in Paragraph 2 above and has even added improvements to said home, living there since that time.
      4. The said defendant, WILLIE CLARK, JR., did not learn of the home being placed in his name until 1981. At that time, he made demands upon the plaintiff to allow him to live there, which demands were rejected and he was refused access to said home.”

      . "Every transfer of immovable property must be in writing; but if a verbal sale, or other disposition of such property, be made, it shall be good against the vendor, as well as against the vendee, who confesses it when interrogated on oath, provided actual delivery has been made of the immovable property thus sold.” C.C. 2275.

      . It could have been argued that Mitchell accomplished a stipulation pour autrui in favor of Clark which became irrevocable when Clark sought to occupy the house as owner. However, such a holding is not essential to a decision ending the case. The difficulty with this case as it stands (we approve what amounts to a donation mortis causa in a "form ... abrogated” by C.C. 1570) would not be dissolved. Under C.C. 1890. "... any person may buy for another, and the person in whose favor the purchase is made may avail himself of it, if he pleases." Smith v. Kemper, 4 Mart. (O.S.) 409, 442 (La.1816). The stipulation by Mitchell was in writing, and clearly expressed the intent that Clark should benefit. Fontenot v. Marquette Casualty Co., 258 La. 671, 247 So.2d 572 (1971). It is of no consequence that Clark did not sign the act of sale. "... The acceptance of a contract need not be expressed in it, nor is it indispensable that the act be signed by the party in whose favor it is made. The acceptance may result from his acts in availing himself of its stipulations, or in doing something which clearly indicates his acceptance....” Balch v. Young, 23 La.Ann. 272, 272-3 (1871). Clark’s intent to occupy the house as his own could serve as acceptance of the contract in his favor. Nor is it of consequence that Clark was not aware of the stipulation in his favor for twenty-eight years. “The law does not provide for an express acceptance of or consent to a stipulation pour autrui by the beneficiary, nor does it prescribe any particular form ... The law does not stipulate a time in which the assent ... should be made to appear ..." First State Bank v. Burton, 225 La. 537, 549-50, 73 So.2d 453, 457 (1954).
      Once Clark learned of and accepted the stipulation in his favor, he could argue that the stipulation could no longer be revoked. C.C. 1890. “The third party beneficiary’s right arises immediately upon execution of the contract, and express-consent is only necessary to prevent revocation.” Merco Manufacturing, Inc. v. J.P. McMichael Construction Co., 372 F.Supp. 967, 973 (W.D.La.1974). "Stipulations in favor of third persons ... are favored in our law_’’ Andrepont v. Acadia Drilling Co., 255 La. 347, 357, 231 So.2d 347, 350 (1969).


author: DENNIS, J.,

text:
    Hugh MOORE, et al. v. Stephen R. COVINGTON, Odas D. Metz, and Andco Farms.
    No. 84-CC-0670.
    Supreme Court of Louisiana.
    April 6, 1984.
   DENNIS, J.,

would grant in order to clarify or modify the court of appeal’s order. The trial court must conduct a hearing on the application for a preliminary injunction within the statutory delay. CCP art. 3602. However, the Code does not and could not require a trial court to issue a mandatory injunction ordering a party to take affirmative action to destroy his own property without a full trial affording due process of law. La. Const. art. 1 sections 2, 4. Black v. Good Intent Towboat Co., 31 La.Ann. 497 (1897); Red River v. Noles, 406 So.2d 294 (La.App. 3rd Cir.1981). If an adequate trial of the mandatory injunction application cannot be afforded on the allotted date, the trial judge may either deny preliminary mandatory injunctive relief or he may continue that matter so as to permit discovery and further hearings. My colleagues evidently think all of this is apparent despite the court of appeal’s order, but I fear that it is not.


author: PER CURIAM.

text:
    STATE of Louisiana v. Donald VALE.
    No. 84-KK-0238.
    Supreme Court of Louisiana.
    April 13, 1984.
   ORDER '

PER CURIAM.

Granted.

Defendant contends that the prosecutor is bound by his pretrial plea agreement for a two-year sentence (which was approved and actually imposed by the trial court), since the prosecutor had it within his power at that time to fulfill the bargain by reducing the charge to permit the imposition of a two-year sentence. If there was a plea agreement which included as a principal component a specified sentence, the prosecutor arguably made an implicit promise to arrange for a bargain in which a two-year sentence is legal, so that the prosecutor was not at liberty to repudiate the bargain simply because he chose a course of action which resulted in an illegal sentence.

Accordingly, the case is remanded to the district court with instructions to conduct a hearing on the scope of the plea bargain and to reconsider the issue of whether the defendant may require the prosecutor to fulfill the.plea agreement.


text:
    Claudia Ruth Newell DARBY, Individually and as Curatrix of Andrew Darby, III v. METHODIST HOSPITAL, Anesthesia East, Inc., Anthony Lott, Dr. Paul Lea and Dr. Daniel E. Buras.
    No. 84-CC-0487.
    Supreme Court of Louisiana.
    April 13, 1984.
    Reconsideration Denied May 4, 1984.
   In re Dr. Paul Lea, applying for writ of certiorari to the Civil District Court, Parish of Orleans, Division “E”, No. 83-6849; Fourth Circuit Court of Appeal, No. C-1977.

Case below: 447 So.2d 106.

Denied.

MARCUS, DENNIS and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Dallas Clayson MORACE.
    No. 84-K-0556.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Dallas Clayson Morace, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, No. 15651-KA; 26th Judicial District Court, Webster Parish, Nos. 48669 and 48671.

Case below: 446 So.2d 1274.

Denied.

DIXON, C.J., would grant the writ.


author: CRAIN, Judge.

text:
    Leo W. BARKER v. TANGI EXTERMINATING CO., et al.
    No. 83 CA 0236.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 10, 1984.
    Writ Denied June 8, 1984.

      Maurice D. Robinson, Jr., Hammond, for plaintiff-appellee.
    Arthur Macy, Hammond, for defendant-appellee Tangi Exterminating Co.
    Jonathan R. Schmidt, Hammond, for defendant-appellant Phillip Jenkins, et ux.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal by Phillip and Bonnie Jenkins (Jenkins) from a judgment of the trial court awarding the plaintiff damages and a reduction’ in the sales price of a house he and his wife purchased from the Jenkins in which termite damage was later discovered. The judgment of the trial court dismissed plaintiffs claim against Tangi Exterminating Company (Tangi) and no appeal was taken by plaintiff from this ruling. The Jenkins also appeal the dismissal of their third party demand against Tangi.

Defendants, Phillip and Bonnie Jenkins, sold their home to Leo and Alma Barker on June 9, 1978. In the purchase agreement between the Jenkins and the Barkers was a requirement that the house be inspected for termites and an infestation report submitted to the Barkers prior to the purchase of the house. At the time, the Jenkins had a contract with Tangi. Tangi had treated the house approximately seven years earlier for termites and had conducted annual inspections and/or treatments thereafter. The Jenkins secured a termite infestation report from Tangi which was furnished to plaintiff at the sale. The certificate indicated that there was no evidence of termite infestation or damage. It was unclear from the testimony at trial whether Tangi had actually inspected the house on the date the report was made or had merely relied on past inspection data to fill out the report. After obtaining the report, the plaintiff closed the sale.

Plaintiff and his wife had inspected the house on at least two occasions prior to the sale along with a real estate agent and had seen no evidence of termite damage. However, when they took possession 30 days after the sale, they discovered signs of termite damage in places where furniture of the Jenkins had previously been located. Upon removal of baseboards and sheetrock on the walls more extensive damage was discovered.

The Barkers subsequently brought suit for a reduction of the sales price and damages, naming the Jenkins and Tangi as defendants. The Jenkins answered denying plaintiff’s allegations and, in the alternative, filed a third-party demand against Tangi praying for indemnification from Tangi for any liability the Jenkins might incur on the principal demand.

After trial on the merits, judgment was rendered by the trial court against the Jenkins, granting plaintiff a reduction of the sales price, damages and attorney’s fees totaling $3887.50. Tangi was dismissed from the suit. Defendants, Phillip and Bonnie Jenkins, appeal.

Defendants argue on appeal that if the plaintiffs could discover the termite damage after taking possession of the house, such damage should have been discoverable during their inspections of the house prior to purchase. We find no merit in this argument.

The seller warrants the thing sold against hidden defects. La.C.C. arts. 2475, 2476. Hidden defects are those which cannot be discovered by simple inspection. La. C.C. art. 2521. Simple inspection is one made by.a reasonably prudent buyer, with no special knowledge, and under no obligation to deface the thing purchased while inspecting it. Fraser v. Ameling, 277 So.2d 633 (La.1973); Pursell v. Kelly, 244 La. 323, 152 So.2d 36 (1963).

The most substantial damage to this house was not discoverable upon simple inspection. It was not until the sheetrock and baseboards were removed that the full extent of damage could be seen. There was some sawdust around parts of the baseboard that would perhaps have put the plaintiff on notice to investigate further; however, testimony indicated that at the time of the plaintiff's inspection of the house, the Jenkins’ furniture concealed these baseboards. The real estate agent who accompanied the Barkers on two occasions testified that she did not see any signs of termite damage.

Based on the above facts, we find no manifest error in the trial judge’s conclusion that the termite damage was a hidden defect sufficient to diminish the value of the house, and therefore the plaintiff was entitled to a reduction in the purchase price. See Canter v. Koehring Co., 283 So.2d 716 (La.1973); Newman v. Dixie Sales and Service, 387 So.2d 1333 (La.App. 1st Cir.1980).

The defendants also take issue with the amount of damages and reduction. The trial judge is afforded wide discretion in the amount of reduction in an action in quanti minoris, and his decision will not be disturbed on appeal in the absence of manifest error. Newman, 387 So.2d at 1335. In this case, the trial judge ordered defendants to pay plaintiff $250.00 for materials purchased for repairs; $341.00 for the cost of termite treatment; $2,296.50 which was the estimated cost of completing repair of the house; and $1000.00 in attorney’s fees, plus legal interest and costs. The measure of reduction in an action in quanti minoris involving a building is the amount necessary to convert the unsound structure to a sound one. Fraser, 277 So.2d at 639. The $2,296.50 to repair the house and the $250.00 for materials represent this amount. These figures were unrefuted by the defendants at trial. We find no error in these amounts.

Damages, including attorney’s fees, are awardable in a case in which the trial court orders a reduction in price because of vices in the thing sold where the seller has knowledge of the vice which he does not declare to the buyer. La.C.C. arts. 2544, 2545. The trial judge found that the Jenkins were aware of the termite damage at sale and failed to declare this to the plaintiff. There is sufficient evidence to support this conclusion. We find the award of $1000.00 attorney’s fees proper. Plaintiff’s request for additional attorney’s fees for time spent on this appeal may not be considered by this court, as plaintiff did not appeal or answer the appeal. La.C.C.P. art. 2133; Celestin v. Fireman’s Fund Insurance Company, 430 So.2d 1263 (La. App. 1st Cir.1983). The trial judge also found that the damage necessitated a new termite treatment which cost $341.00. We find no error in this conclusion.

Finally, the Jenkins argue that in the event the judgment of the trial court is affirmed Tangi should be held responsible for its failure to properly report the existence of damage. The trial judge found that the Jenkins were aware of the termite damage. The Jenkins and Tangi were the only parties to the contract at the time the certificate was asked for and given. Any question of “reliance” by the Jenkins on that certificate to their detriment is answered by the finding that the Jenkins were aware of some damage. We do not think the failure of Tangi to remove baseboards and wallboards in order to conduct a more extensive investigation constituted a breach of its contract with the Jenkins. This is more properly a function of persons qualified in building construction and repair. Bonhagen v. Hooper, 195 So.2d 447 (La.App. 4th Cir.1967), writ refused, 250 La. 634, 197 So.2d 652 (1967). Therefore, we find no error in the trial judge’s dismissal of the Jenkins’ third party demand against Tangi.

. For the reasons assigned, we affirm the judgment of the trial court holding defendants, Phillip and Bonnie Jenkins, liable for a reduction in the purchase price of the house they sold to the plaintiff. We also affirm the damages awarded by the trial judge in the amount of $3887.00. Defendants are to pay all costs of this proceeding.

AFFIRMED.

      . We note that there is a slight discrepancy between the amount awarded in the signed judgment and the total of the amounts given in the trial judge's reasons for judgment. The signed judgment awards damages in the amount of $3887.00 and in the reasons for judgment the amounts total $3887.50. The signed judgment should prevail. See Hebert v. Hebert, 351 So.2d 1199 (La.1977).

      . See Footnote # 1.