author: DIXON, Chief Justice. WATSON, Justice,

text:
    STATE of Louisiana v. Sherry E. LITTLETON.
    No. 82-KA-1443.
    Supreme Court of Louisiana.
    June 27, 1983.
    Rehearing Denied Sept. 1, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Lavalle Salomon, Joseph Michel, Nancy Gilliland, Asst. Dist. Attys., for plaintiff-appellee.
    Steven A. Hansen, Malcolm De Celle, Jr., DeCelle & Hansen, Monroe, for defendant-appellant.
   DIXON, Chief Justice.

Defendant Sherry E. Littleton was charged by grand jury indictment with conspiracy to commit first degree murder of her husband, John Littleton, in violation of R.S. 14:26 and 14:3o. She was tried, found guilty, and sentenced to thirty years at hard labor, to run consecutively with her previous sentences for negligent homicide and perjury arising out of this incident. Defendant appeals her conviction and sentence.

On the evening of January 17, 1979, defendant, her sister Patricia Knowles, and Winfred Chappel visited several bars together in Monroe, Louisiana, drinking alcohol, smoking marijuana and taking amphetamines. Chappel left the two women before midnight, and shortly after midnight the Ouachita Parish Sheriff’s Office received a call concerning a shooting in West Monroe at defendant’s trailer home. Defendant’s husband had been shot once in the chest with a 16 gauge shotgun. Defendant told the officers that she shot her husband in self-defense after he had beaten and threatened her. Defendant had numerous bruises on her face.

On March 30, 1979 defendant was indicted for manslaughter, and on July 19, 1979, pursuant to negotiations with the district attorney’s office, pleaded guilty to negligent homicide and was sentenced to five years at hard labor.

Subsequent to Littleton’s incarceration, Knowles and Chappel came forward with the following facts. On the evening of January 17, 1979 the three had visited several bars, and defendant repeatedly asked Chappel to kill her husband. Although romantically involved with defendant at the time, Chappel refused. The three then went to the parking lot of a convenience store where defendant, at her own request, was struck several times in the face by Chappel, as part of a plan to make it seem that she had been beaten by her husband. Defendant and Knowles then drove to defendant’s trailer home. Patricia Knowles told authorities in Kansas that it was she who actually shot her brother-in-law. She was returned to Louisiana where she was indicted for conspiracy to commit murder and for first degree murder. Knowles was acquitted of the first degree murder charge after testifying in her own defense at trial, and the conspiracy charge was thereafter quashed because of her acquittal on the murder charge arising out of the same facts. State v. Knowles, 392 So.2d 651 (La. 1980).

Sherry Littleton was indicted by the grand jury on December 11,1979 for perjury before the grand jury investigating the death of John Littleton, and for conspiring with Patricia Knowles to commit first degree murder. Defendant was convicted of perjury in June of 1980, and her conviction and sentence were affirmed. 395 So.2d 730 (La.1980). In March of 1982, after numerous pretrial motions, defendant was tried and convicted of conspiracy, and this appeal followed.

Assignments of Error Nos. 1 and 2

Defendant alleges as Assignment of Error No. 1 that the trial court erred in denying defendant’s plea of autrefois acquit, res judicata, collateral estoppel and former jeopardy. In Assignment of Error No. 2 defendant alleges the trial court erred in denying defendant’s “motion to estop.” Defendant’s plea is based upon her negligent homicide conviction, while the motion is based on Patricia Knowles’ acquittal and successful motion to quash the conspiracy indictment.

No person shall be twice put in jeopardy of life or liberty for the same offense. Amendment V, United States Const.; Art. 1, § 15, La. Const.; C.Cr.P. 591. The test for determining if two offenses are distinguishable was stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932):

“... where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.... ”

The rule applies to consecutive punishments as well as to successive prosecutions. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). In Louisiana, the statutory limitation on the prohibition against double jeopardy is found in C.Cr.P. 596.

Negligent homicide is defined in R.S. 14:32 as “... the killing of a human being by criminal negligence.” Criminal conspiracy is defined in R.S. 14:26:

“A. Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.
If the intended basic crime has been con-sumated, the conspirators may be tried for either the conspiracy or the completed offense, and a conviction for one shall not bar prosecution for the other.”

Negligent homicide does not require evidence of an agreement which is necessary for a conspiracy conviction; criminal conspiracy to commit first degree murder does not require evidence of an illegal homicide, which is necessary for a negligent homicide conviction. Each crime, therefore, requires proof of an additional fact which the other does not. Neither subsequent prosecutions nor consecutive punishments are barred by reason of Blockburger’s double jeopardy test.

Defendant contends also that the crimes were a part of a single transaction, commencing at 5:00 p.m. on the afternoon of January 17 and ending with the death of Mr. Littleton. There is no merit in defendant’s argument. In State v. Solomon, 379 So.2d 1078 (La.1980), the same argument was raised concerning a burglary of an automobile and the theft of a watch from inside the glove compartment. This court found the burglary complete upon entry of the automobile with the intent to commit a theft. The actual theft of the watch did not occur until the watch was removed from the glove compartment. In this case, the conspiracy was completed by Sherry Littleton having her face bruised to provide the self-defense justification after the agreement had been reached. The actual homicide of Mr. Littleton was a later, separate and distinct act.

Finally, defendant contends the doctrine of collateral estoppel bars the state from bringing her to trial since the state was prevented from bringing a conspiracy charge against Patricia Knowles, the alleged coconspirator. Defendant relies on the principle of law that a person can not be convicted of conspiring with himself.

The doctrine of collateral estoppel was explained and applied to criminal cases by Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). This court applied the doctrine in State v. Knowles, supra, and adopted the Supreme Court’s definition of collateral estoppel:

“ ‘... It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. ... ’ ” 392 So.2d at 655. (Emphasis added).

The doctrine of collateral estoppel is grounded in the Fifth Amendment guarantee against double jeopardy. Ashe v. Swenson, supra; State v. Knowles, supra. Sherry Littleton was not in jeopardy in the trial of Patricia Knowles. In State v. Doucet, 359 So.2d 1239, 1248 (La.1978), we held that “the application of collateral estoppel in this State is limited to those cases where it is required by Ashe v. Swenson, supra.” We are aware of no instance where collateral estoppel has been constitutionally required in criminal cases involving different defendants. See United States v. Hatrak, 588 F.2d 414, 416 (3d Cir.1978), cert. denied, 440 U.S. 974, 99 S.Ct. 1541, 59 L.Ed.2d 792 (1979), wfyere the Court of Appeal affirmed' a district court’s conclusion that “the Constitution does not require application of collateral estoppel in favor of one defendant because of the outcome in the trial of another defendant.”

These assignments of error lack merit.

Assignments of Error Nos. 4 and 5

By these assignments of error, defendant complains of improper questioning of Winfred Chappel by the district attorney.

On direct examination, the district attorney questioned Chappel about contact he had had with the defendant:

“Q And did you — did you have any physical contact with Ms. Littleton on that day?
A No, sir, I did not.
Q Did you touch her at any time?
A Yes, sir.
Q In what fashion?
A A hug.
Q Okay, any other kind of contact?
A No, sir.”

Chappel then testified to the events that occurred later at the convenience store parking lot:

“Q And anything unusual happen there?
A Yes, sir.
Q What was that?
A I slapped Ms. Littleton — ”

Defense counsel objected, alleging that the state was attempting to impeach its own witness who had previously testified that the only contact he had had with Ms. Littleton was a hug. The- court ruled:

“Well, I don’t find the question what did you do as an attempt to impeach. It was a fair question. He answered it. Now if his answer impeaches some other statement that he made, then that’s the — the court will accord his testimony what weight it deems fit, but I don’t feel that the State was intentionally attempting to impeach its witness.”
Testimony continued:
“Q I’m sorry, you said you slapped Ms. Littleton?
A Yes, sir, I did.
Q Why did you slap her?
A She asked me to.
Q How many times did you slap her?
A Three or four.
Q On the body or where on her?
A In the face.
Q Do you remember which side of the face?
A No, sir, I don’t. It was—
Q —Okay, why — why did you do that?
A She asked me to.
Q And what was your understanding of why you were doing that?
A I’m not really for sure.
Q What did you think at the time?”

At this point defense counsel objected, saying that the question called for a conclusion on the part of the witness. The court overruled the objection:

“M let him answer as to what his understanding was at that time, and let me caution you, Mr. Chappel. Do not speculate as to what you might have deducted or concluded the next day or later on that — later that night or anything else. You may testify strictly as to what you thought at that particular moment standing in that particular parking lot.”
Testimony continued.
“Q You can go ahead and answer.
A For an alibi.
Q An alibi for what?
A Whatever they were going to do.
Q To whom?
A To her husband.
Q You say they. Who are you speaking of they?
A Her and Ms. Knowles.
Q Okay, why do you include Ms. Knowles?
A Because she was sitting in the car.
Q While you slapped Ms. Littleton?
A Yes, sir.”

On cross-examination the next day, defense counsel asked about Chappel’s physical contact with the defendant:

“Q Let’s see, yesterday morning [the district attorney] asked you if you were physical with Sherry Littleton and you said no and then you said you hugged her and then you slapped her, but you did hug her, right?
A Yes, sir.
Q And that’s all — that’s the only physical you were with her?
A Yes, sir.
Q Except for the slap?
A Yes, sir.”

And on redirect examination, Chappel testified:

“Q What did you think I meant by physical when I asked you that yesterday?
A I thought you meant sexually or anything like that.”

Taking Chappel’s testimony as a whole, the two statements, that the only physical contact was a hug and that he slapped Littleton, were not inconsistent. Rather, the testimony shows only a misunderstanding of the scope of the question asked by the prosecutor. See State v. Edwards, 419 So.2d 881, 891 (La.1982). There was no genuine and proper effort by the state to impeach its own witness. State v. Redwine, 337 So.2d 1041, 1047 (La.1976). The ruling of the trial judge was proper.

With regard to Chappel’s statement that he thought he was slapping Littleton in order to provide her with an alibi, defendant relies on R.S. 15:463, which provides:

“Except as otherwise provided in this Code, the witness can testify only as to facts within his knowledge, and neither as to any recital of facts heard by him, nor as to any impression or opinion that he may have.”

This court has recognized that a witness may testify to a natural inference from something he has observed provided the witness states the basic facts upon which the inference is based. State v. Prestridge, 399 So.2d 564, 572 (La.1981); State v. George, 346 So.2d 694 (La.1977). Chappel testified that he, Littleton and Knowles had been drinking in several bars throughout the course of the evening and that he had been asked to shoot Littleton’s husband that night, which he refused to do. Little-ton then asked him to slap her face. She did not scream or try to get away. Chap-pel’s testimony related a natural inference from what he had observed throughout the evening. The trial judge specially cautioned Chappel to testify only as to what he thought at the time he was slapping her face. From the conversation that evening among the three people, it was natural to infer that the reason he beat the defendant before she went home was to provide her with evidence of a justification for the shooting of her husband.

These assignments of error lack merit.

Assignments of Error Nos. 6 and 7

While defendant was incarcerated, she told two other inmates that she had planned the murder of her husband with Knowles and Chappel. Defendant objected to the introduction of the testimony of Ms. Wamble (Assignment No. 6) and Ms. Nick-ens (Assignment No. 7) on the basis that the state had not proved the corpus delicti at the time the statements were offered. Our law does not require the proof of the corpus delicti prior to the admission of other evidence. C.Cr.P. 773; State v. Neslo, 433 So.2d 73 (La.1983); State v. Mullins, 353 So.2d 243 (La.1977); State v. Hill, 135 La. 625, 65 So. 763 (1914); State v. Gebbia, 121 La. 1083, 47 So. 32 (1908).

These assignments lack merit.

Assignment of Error No. 8

By this assignment of error, defendant contends the trial court erred in imposing the maximum sentence of thirty years, and in making the sentence consecutive with other sentences she received for related offenses.

At the time defendant was sentenced for the present conspiracy conviction, she was serving two consecutive five year sentences for negligent homicide and for perjury before the grand jury. She had no other criminal record. This court has recognized that concurrent sentences, rather than consecutive sentences, are the usual rule in absence of a showing that public safety requires a longer sentence. State v. Ortego, 382 So.2d 921, 923 (La.1980), cert. denied, 449 U.S. 848,101 S.Ct. 135, 66 L.Ed.2d 58 (1980); State v. Underwood, 353 So.2d 1013, 1019 (La.1977). However, this court has never held that consecutive sentences will necessarily be found excessive, even where the convictions arise out of a single course of conduct. State v. Ortego, supra; State v. Molinario, 400 So.2d 596, 600 (La. 1981).

Defendant contends that the consecutive sentence imposed in this case is not in compliance with C.Cr.P. 883. This article is of no aid to defendant; it specifically excludes from its scope sentences the court expressly directs are to be served consecutively.

Neither is the sentence imposed upon this defendant excessive. The evidence indicates the defendant planned and executed the murder of her husband. The judge stated that the evidence presented at trial indicated a complete disregard for human life, and found it to be a very cruel and heinous offense. Her perjury before the grand jury enabled her to plead guilty to a reduced charge of negligent homicide, and prevented the state from prosecuting her for first degree murder which would have carried a penalty of life imprisonment. The conspiracy did in fact lead to the murder of John Littleton. “Maximum sentences are appropriately imposed in cases involving the most serious violations of the described offense, and for the worst kind of offender.” State v. Jones, 398 So.2d 1049, 1053 (La.1981).

This assignment of error lacks merit.

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

WATSON, J., dissents and assigns reasons.

WATSON, Justice,

dissenting.

When there is a plea bargained guilty plea to a substantive offense, later prosecution for conspiracy to commit that offense is barred. Defendant Littleton was charged with manslaughter in connection with the shooting death of her husband, although she pled guilty to negligent homicide. Manslaughter is a responsive verdict to first degree murder, and it is immaterial that manslaughter is a lesser grade of the offense. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). Fundamental fairness precludes the state from entering into a plea bargain concerning a substantive offense and then initiating prosecution for conspiracy to commit that offense. Compare Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977).

I respectfully dissent.

      . At the time of this offense, R.S. 14:30 provided:
      “First degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm.
      Whoever commits the crime of first degree murder shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence in accordance with the recommendation of the jury.”

      . “Double jeopardy exists in a second trial only when the charge in that trial is:
      (1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
      (2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.” C.Cr.P. 596.

      . In Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980), the Supreme Court declined to apply nonmutual collateral estoppel in a federal criminal case where defendant corporate executive was on trial for aiding and abetting an IRS agent to receive unlawful compensation after the agent had been acquitted of receiving the unlawful compensation in a separate trial. But see State v. Haines, 51 La.Ann. 731, 25 So. 372 (1899).

      . “If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.” C.Cr.P. 883.


source: Caselaw Access Project

author: DIXON, Chief Justice

license: Public Domain

text:
    Mrs. Antoinette Ybos Davilla, Widow of Sidney T. DAVILLA v. Lowell F. JONES.
    No. 82-C-2223.
    Supreme Court of Louisiana.
    June 27, 1983.
    Rehearing Denied Sept. 1, 1983.
    Stephen M. Chouest, O’Keefe, O’Keefe & Berrigan, New Orleans, for applicant.
    Philip E. James, Andrew I. Brown, Heni-can, James & Cleveland, New Orleans, for respondents.
   DIXON, Chief Justice

Plaintiff lessor, Antoinette Davilla, filed a rule to evict defendant lessee, Lowell F. Jones, on September 23,1981, alleging nonpayment of rent due. Defendant answered, asserting a right to withhold the rent in order to make necessary repairs to the property. The trial judge granted the rule to evict and the defendant took a suspensive appeal. The court of appeal reversed, 418 So.2d 724, finding that the dealings between this lessee and lessor relative to withholding the rent to make necessary wall repairs prevented the lessor from evicting the lessee. We granted lessor’s application for writs. 422 So.2d 151 (La.1982).

Davilla and Jones signed a five year lease for part of a building at 333-335 Bourbon Street beginning in 1974, with an option to renew for five additional years. The monthly rent for the primary term was $500; the rent for the renewal period was $720. The lease provided that the lessee was responsible for all maintenance and repairs, excluding the roof and exterior walls, which were the responsibility of the lessor.

On February 4, 1981 Jones wrote to Da-villa complaining of continuing problems with water leakage through the roof and the exterior walls. The letter noted that lessee’s previous requests to the lessor to repair the property remained unanswered and formally demanded that the repairs be made. The letter advised that if repairs were not commenced within two weeks, “we will have no choice but to move on our own to secure the proper repair of these premises, which are absolutely necessary, and to secure such repair at a reasonable cost. We will, in turn, deduct the cost of these expenses from such future rental as is necessary to reimburse our expenses herein.”

Jones testified that in response to the letter, a roofing contractor, Mr. Shaw, was sent to the property at the lessor’s request. He examined the building with the lessee and stated he could not give a firm price, but would quote to the lessor on a materials and labor basis only. Repairs were subsequently undertaken by Mr. Shaw with the roofing work completed in mid-April at a cost of $2500. Jones had not paid the rent due for March or for April. He testified:

“When he got near the end of completion of the roofing work I said to the man, ‘Now, let’s get on the rest of the job.’ And he said, ‘I can’t do the rest of the job. That’s not my type of work.’ And I said, ‘Well, have you advised the lessor that you’re not doing all of the work that needs to be done?’, he said, ‘Advise the lessor that I won’t be able to do everything.’ ”

On April 22, 1981 Jones wrote Davilla saying that Mr. Shaw would not be completing the job and advising the lessor that he would continue to withhold the rent until enough was accumulated to employ his own contractor.

Discussions continued between Davilla and Jones concerning repairs to the exterior walls. At the same time, the tenant next door at 333 Bourbon (Ellwest Theatre) was also negotiating with Davilla. As part of those negotiations Ellwest agreed to pay the maintenance and repair costs for the entire 333-335 Bourbon Street building. On April 27, 1981 Jones wrote to Davilla acknowledging their telephone conversation:

“As you requested, I will get in touch with one or more contractors for prices on the north wall maintenance work ... I understand that you do not wish to get involved in this project beyond the work that you already have employed Mr. Shaw to do, and that you will convey to Ellwest for payment any invoice from any contractor.”

The rent due for May was not paid. On May 21 Jones forwarded to Davilla an estimate of $30,850 he had obtained from a contractor to repair the leaking walls. The letter stated: “This letter confirms our understanding that the necessary exterior wall maintenance is to be done, that we will deduct the cost from our rent payments, and that you will collect in full from Ell-west under your current rental agreement with them.”

On June 1, 1981 letters were exchanged between Davilla and Jones. Jones forwarded another estimate in the amount of $36,-736 and recognized Davilla’s prompt need for bids for the repairs as part of lessors negotiations with Ellwest. The letter continued:

“The heavy rains at 4 a.m. today once again brought in so much water through the exterior walls that we had to sweep it off the floor before starting today’s business. Hence, you can see there is some urgency about doing this work and unless we hear otherwise from you within a week we shall assume that you want us to have the job done and deduct from rent payments.”
Davilla’s June 1 letter read:
“This letter is to confirm our conversation on Monday June 1,1981. I Elizabeth A. Davilla do request that you do not give a work crew permission to start work at 333-35 Bourbon Street. I would like to get at least one more reasonable estimate, after which time I will take necessary action in getting the work completed. But you must allow me a reasonable amount of time. SO I DO NOT AUTHORIZE THE WORK BE STARTED AT THIS TIME.”

The record indicates that the lessor contacted two additional contractors for prices, and that at least one of them visited the property, though no further bids were received, and no further repair work has been done by either lessor or lessee.

On July 10, 1981 a notice to vacate for nonpayment of rent totaling $3600 was personally served on Jones. The Rule to Evict Tenant was not filed in court until September 23, 1981 and was not heard until October 9.

The essence of the contract of lease is the enjoyment of a thing in exchange for a price. C.C. 2669. The lessee is bound to use the thing as a good administrator, for the intended use, and to pay the rent on the agreed terms. C.C. 2710. The lessee may be expelled from the property if he fails to pay the rent when due. C.C. 2712.

The lessor is bound by the very nature of the contract to deliver the thing to the lessee and maintain it in sufficiently good condition. C.C. 2692. The Civil Code makes provision for the division of the responsibility to repair between the lessor and lessee (C.C. 2693), but the parties by agreement may reallocate the responsibility among themselves. C.C. 11. Under the contract of lease between Davilla and Jones, the lessor was responsible for repairs to the roof and exterior walls.

The lessee asserted as a defense to the Rule to Evict Tenant that he was entitled to withhold the rent from the lessor because the lessor failed to make necessary repairs to the premises. C.C. 2694 provides:

“If the lessor do not make the necessary repairs in the manner required ... the lessee may call on him to make them. If he refuse or neglect to make them, the lessee may himself cause them to be made, and deduct the price from the rent due, on proving that the repairs were indispensable, and that the price which he has paid was just and reasonable.”

The lessee argues that demand was properly made on the lessor to make the repairs, yet all of the repairs were not made. Lessee further argues that he did not make the wall repairs himself because he was prevented from doing so by the lessor. He therefore contends that his withholding of the rent was proper under C.C. 2694 and, consequently, eviction in this case would deprive him of the right to repair and deduct provided by the Civil Code.

The right of the lessee to apply the rent due to repairs arises only after the lessor has refused or neglected to make the repairs upon demand by the lessee. Brignac v. Boisdore, 288 So.2d 31 (La.1973). In Mullen v. Kerlec, 115 La. 783, 785, 40 So. 46 (1905), this court stated:

“The Civil Code seems plain enough that the right of the lessee to make indispensable repairs at the expense of the lessor arises only after calling on the lessor to make such repairs and after his refusal or neglect to make them. We do not think that the lessee can be permitted to anticipate the refusal of the lessor to repair and on that ground refuse to pay the rent when due.”

Jones’ February 4 demand letter gave the lessor two weeks within which to commence repairs. Jones’ testimony indicates the demand was complied with:

“On the 14th day of the month, the 14th day after mailing of the letter I was called upon by a man who presented himself as the roofer who had been sent to me by the lessor.”

The roofer indicated that he would quote a price. He thereafter began the work. It was not until mid-April, after two months rent had already been withheld, that Jones learned that this contractor would not complete the entire job, and he notified the lessor. Jones forwarded the first bid he obtained for the wall work to the lessor with the understanding that the contractor would be paid by Ellwest Theatre. It was not until the letter of May 21 that there is any indication in the record that Jones would have to pay for the work himself, after another month’s rent had been withheld.

There is no evidence in the record that Davilla refused to make the repairs. The June 1 letter relied on by defendant was not a refusal to make the repairs. Da-villa’s statement, “So I do not authorize the work to be started at this time” is not a refusal to complete the work where in the previous sentences Davilla had stated that one more estimate was desired and then work would be completed within a reasonable time. Neither do the actions of the lessor show neglect of the obligation to make the repairs. The lessor responded to each of the lessee’s letters and was taking steps toward the completion of the repairs by negotiating with Ellwest and by arranging with the lessee to secure bids. The lessor’s cautious approach to the repairs was justified by their high cost.

In any event, the June 1 letter relied on by Jones comes too late to support his withholding the rent previously due. . Jones argues to this court that the eviction is inequitable since Davilla led Jones to believe that the repairs would be made, and, after asking for a reasonable amount of time in which to complete the repairs, moved to have Jones evicted. However, Jones offers no justification for his withholding the rent prior to the June 1 letter. His demand for the repairs was being met. C.C. 2694 gives the lessee the right to withhold rent only to apply it to the cost of the repairs. A lessee may not anticipate refusal or neglect to make the repairs or withhold rent to apply economic pressure on a lessor.

The judgment of the court of appeal is reversed, and the judgment of the district court is reinstated, all at the cost of the respondent.

LEMMON, J., dissents for the reasons assigned by the court of appeal.'


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Richard HENRY.
    No. 82-KA-1456.
    Supreme Court of Louisiana.
    June 27, 1983.
    Rehearing Denied Sept. 1, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Premila Chumbley, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appel-lee.
    Vincent Wilkins, Jr., M. Michele Foumet, Asst. Public Defenders, for defendant-appellant.
   CALOGERO, Justice.

Richard Henry was charged by grand jury indictment with the crime of aggravated rape, a violation of La.R.S. 14:42. He pled not guilty. After trial by jury, he was found guilty as charged and sentenced to the mandatory term of life imprisonment without benefit of parole, probation or suspension of sentence. Defendant appeals his conviction urging only one argument, that the trial court erred in admitting evidence of another crime. For the reasons which follow, we find no merit to the argument, and accordingly, affirm the conviction and sentence.

The facts involved in this case are as follows. At approximately 3:00 a.m. on January 27, 1982, the victim, Ms. Belainesh Negash a native of Ethiopia, was driving home after leaving her waitressing job at a Baton Rouge restaurant. She dropped off a co-worker, to whom she had given a ride home, and thereafter at some point noticed a red light flashing inside a vehicle which was following her. Assuming it was the police, she stopped her car. The vehicle which had been following her stopped behind her and a black male got out of the vehicle and approached her window. He was dressed in street clothes, a red short sleeve shirt and a jacket. He asked the victim for her driver’s license. She gave him her driving permit. The male looked at the permit and said it was alright, which raised Negash’s suspicion since she was not accompanied by a licensed driver as was required by the permit. The male told her that she had run a stop sign. She protested that she had not. The male told her he was going to let her go this time, and started to return to his car. He apparently changed his mind and requested again that the victim stop. He then told her that he was not going to let her go and requested that she come back to his car while he called other police officers.

Ms. Negash then questioned the male’s authority and he showed her a police badge inside a black wallet. He told her that she would have to get into the back of his car. She refused to do so and requested that she be allowed to go to a telephone and call a friend. At that point the stranger told Ms. Negash not to argue with him and produced a gun from his jacket pocket. He pushed her into the back of his car, got in the front and drove some distance from her car, and parked. She asked the male what he wanted and he stated he “wanted her.”. He then got into the back seat with the victim, removed her pants and had intercourse with her. After the intercourse, the stranger told her she could go. The victim further testified that she was afraid to walk off for fear that the male would shoot her in the back. So, she requested that he take her back to her car. As both were standing outside of her car, she asked for the return of her driving permit. As the male turned to walk back to his car to get the permit, Ms. Negash got in her car and fled from the scene.

Ms. Negash immediately reported the incident to the police and she was examined at a local hospital. It was confirmed that she had had recent intercourse.

The following day, after a report of the incident appeared in the newspaper, a Ms. Boone telephoned the police to inform them of a somewhat similar incident. Ms. Boone told the police that, on January 24, 1982, four days earlier than the Negash incident, she had similarly been stopped in Baton Rouge about 3:30 a.m. by a plain clothed black male with hand cuffs, who showed her a police badge. The male accused her of speeding and asked for her license. He took her license and walked back to his own car but found that he had locked himself out of the car. At that point he returned the license to her and told her she could go. She did. On a return trip a brief time later, Ms. Boone passed the same location. The same male waved her over once again. He asked her if she would give him a ride to get an extra set of keys. Ms. Boone’s husband, who at that point was accompanying his wife in a separate car, gave the man a ride to an apartment complex on Monet street. The man entered, came out, apparently with his reserve set of car keys, and was returned to his car. The Boones then went on their way.

Mr. Boone showed the police where he brought the man and gave a description of the vehicle. It matched a vehicle parked outside the apartment complex. The police ran a registration check on the vehicle and found that it was registered in the name of the defendant, Richard Henry. The police got a photograph of Henry and five other photographs, and showed them to Ms. Boone. She picked the defendant out of the group. The officers also showed the photographic line-up to Ms. Negash and she identified the defendant as the person who raped her on January 27th. Thereupon, the officers procured an arrest warrant for Richard Henry and a search warrant for his apartment and automobile.

The officers went to Mr. Henry’s apartment and made the arrest. They also searched defendant’s apartment and automobile. In the apartment, the officers found and seized a set of handcuffs from a night table, a red shirt and a jacket, matching the description the victim had given the officers of the perpetrator’s clothing on the night of the rape. Upon searching the car, the officers found, in the trunk, a red flashing light, a plastic badge in a black wallet, and a gun. These items were also seized. The crime lab personnel also conducted a search of defendant’s car and found a semen stain on the back seat of the car.

Defendant was originally arrested for impersonating an officer. However, after a physical line-up identification was conducted, at which Ms. Negash positively picked the defendant out of the line-up as the person who raped her, defendant was charged with the instant offense of aggravated rape.

At defendant’s trial, all of the above evidence was introduced, as well as testimony by the victim identifying the defendant as the perpetrator of the rape. The Boones also testified at the trial. It is the admission of their testimony at trial which defendant complains of in this appeal.

Defendant contends that the trial court erred in allowing Mr. and Ms. Boone to testify concerning the events of January 24, 1982 because that testimony constituted inadmissible “other crimes” evidence.

Prior to trial, the prosecutor, in compliance with State v. Prieur, 277 So.2d 126 (La.1973) gave notice to defendant that evidence of another offense, allegedly committed by defendant, would be introduced at trial. The state contended that the other-crime evidence (which would be established by the Boones’ testimony concerning the events of January 24, 1982) was so similar to the instant offense that it constituted a signature crime and was thus admissible to prove identity.

In State v. Hatcher, 372 So.2d 1024 (La. 1979), recently reaffirmed in State v. Talbert, 416 So.2d 97 (La.1982), this Court fully discussed the requirements for admissibility of other-crimes evidence under the modus operandi or system exception:

In order to be admissible the extraneous offense evidence must meet several tests: (1) there must be clear and convincing evidence of the commission of the other crimes and the defendant’s connection therewith; State v. Prieur, 277 So.2d 126 (La.1973), see also, State v. Gaines, 340 So.2d 1294, 1298 (La.1977) (concurring opinion); McCormick on Evidence, § 190, pp. 451-52 (2d ed. 1972); (2) the modus operandi employed by the defendant in both the charged and the uncharged offenses must be so peculiarly distinctive that one must logically say they are the work of the same person; State v. Jackson, 352 So.2d 195 (La.1977); State v. Lee, 340 So.2d 1339, 1345 (La.1977) (concurring opinion); (3) the other crimes evidence must be substantially relevant for some other purpose than to show a probability that the defendant committed the crime on trial because he is a man of criminal character. State v. Frederick, 340 So.2d 1353 (La.1976); (4) the other crimes evidence must- tend to prove a material fact genuinely at issue; State v. Ledet, 345 So.2d 474 (La.1977); (5) the probative value of the extraneous crimes evidence must outweigh its prejudicial effect. State v. Sutfield, 354 So.2d 1334 (La.1978); State v. Jackson, 352 So.2d 195 (La.1977).

The defendant argues that the other-crimes evidence introduced at his trial fails to meet the first and fourth tests set out above, that is, that there was no clear and convincing evidence of defendant’s commission of the other crime, and the evidence did not tend to prove a material fact genuinely at issue.

We find no merit in defendant’s argument and hold, to the contrary, that the evidence of the January 24, 1983 incident admitted at defendant’s trial was admissible.

First of all, the other crime, of course, was not that of aggravated rape. Rather it was that of impersonating a police officer. It was, however, similar to the defendant’s alleged conduct which preceded the rape of Ms. Negash. It was admitted for the purpose of tending to prove that the defendant, Richard Henry (Ms. Boone’s encountered stranger on January 24, 1982), was likely the person who accosted Ms. Negash on January 27, 1982. It did not relate specifically to whether the defendant raped Ms. Negash, the offense for which he was being tried. Consequently, the state would be permitted to introduce the evidence concerning the January 24th incident as well as that of the January 27th incident, provided, of course, that they were so nearly identical as to constitute signature crimes or crimes logically believe to be the work of the same person (identity). R.S. 15:445, 446 and Pri-eur and its progeny.

The evidence presented concerning the other impersonating crime (the Boone incident) was clear and convincing and the sum of the evidence established defendant’s connection with that offense. The Boones testified that the man who stopped Ms. Boone was black, about six feet tall and weighed between 180-200 pounds, characteristics which matched Richard Henry. The description they gave of the car the perpetrator was using matched Henry’s car. Mr. Boone took the police to the apartment complex where he had taken the stranger to get another set of keys and that apartment complex was where Henry lived. The police were shown the automobile of the stranger and it was Henry’s car. Ms. Boone was shown a photographic line-up just four days after the incident, containing Henry’s picture and five others, and she picked Henry out of the line-up. And, although she stated at trial that she was not absolutely sure whether the defendant was the same man that stopped her, she did testify “it looks like him ... his features are just about the same.” On cross-examination she conceded an element of uncertainty, but nonetheless expressed that she thought it was Henry. There was “clear and convincing evidence of the commission of the other crime and defendant’s connection therewith.”

The modus operandi employed by the defendant in both the charged offense and the earlier offense was peculiarly distinctive and logically the work of one person. In both incidents, black women, driving alone, at approximately 3:30 a.m., in the same general area in the City of Baton Rouge, were stopped by a black plain clothed male brandishing a police badge and accusing them of traffic violations. In each instance the male requested the driver’s license of the women.

The other crime evidence was substantially relevant for a purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character. In fact the other crime incident, the mere impersonation of a police officer, did not establish such bad character evidence as would tend to convince the jury that Henry was capable of committing an aggravated rape. The evidence was relevant for the purpose of proving the identity of the man who stopped the victim, Negash, but contributed nothing to the proof that Negash was raped. Whether in fact Henry raped Ms. Negash was entirely another matter for the jury to determine on the basis of the evidence before them concerning that rape. Evidence of the January 24th incident was relevant to establish the identity of Ms. Negash’s accosting stranger. As bad character evidence it surely had very little impact on the jury.

Defendant argues that identity was not a material fact at issue in his case, and thus the other crimes evidence should not have been admitted. We disagree.

Defendant was charged with the crime of aggravated rape. Among other things, the state had the burden of proving, to the jury, beyond a reasonable doubt, that the individual on trial was the individual who raped the victim Negash. Defendant had not, prior to trial, admitted that he had had sexual intercourse with the victim (or anything else about any involvement of his in this incident). Nor did defense counsel, in opening argument to the jury, make any concession, that defendant had had consensual sexual intercourse with the victim, or anything else. The first witness called by the state was the victim. After she identified defendant on direct examination, defense counsel cross-examined her in an effort to undermine the accuracy and/or reliability of the identification. Thus, at the point in the trial when the other crime evidence was presented by the state, identity of the perpetrator of the offense was definitely at issue. The state is not required to rely entirely upon the victim’s identification only to find, perhaps, at the conclusion of trial (by a jury verdict of acquittal), that it was not enough.

Finally, we determine that the probative value of the extraneous crimes evidence outweighed its prejudicial effect. As stated above, the defendant was on trial for aggravated rape. The extraneous crime evidence dealt with the defendant’s impersonation of a police officer. It is unlikely that a jury is going to convict a man of aggravated rape because he impersonates a police officer. Its prejudicial effect, that is, that the jury might convict the defendant because he is shown to be a bad man, is minimal in this case if not non-existent. On the other hand the evidence was probative of the fact that it was this defendant Henry who stopped Ms. Negash at 3:30 a.m. on January 27th.

For these reasons we find no error in the trial court ruling allowing the admission of evidence of the other crime incident.

Decree

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

AFFIRMED.

      . Ms. Negash did not have a regular driver’s license but only a driving permit that allowed her to drive while accompanied by a licensed driver.


text:
    Jon R. THERIOT v. TERREBONNE PARISH POLICE JURY.
    No. 83-CA-0128.
    Supreme Court of Louisiana.
    June 27, 1983.
    Rehearing Denied Sept. 1, 1983.

      Thomas L. Wright, Houma, for plaintiff-appellee.
    Jerry L. Hermann, Watkins, Walker & Prejeant, Houma, for defendant-appellant.
   CALOGERO, Justice.

The constitutionality of one section of the Terrebonne Parish Police Jury Ordinance governing Charitable Raffles, Bingo and Keno is before us in this litigation.

Section 8.5-4(A)(4) of Ordinance No. 2187 provides: “No facility shall be used to hold, operate and/or conduct raffles or bingo or keno games on more than two days during any calendar week.”

In a previous section of the ordinance, § 8.5-l(4), “facility” is defined as “any building, structure, hall, house, apartment, church or other place where people may gather.”

For the reasons which follow we determine that the ordinance is not unconstitutional, and accordingly reverse the contrary judgment of the district court.

Skateland Arena is a commercial building leased to one Dominque Cologne who in turn rents it out to charitable organizations in the Houma, Louisiana area for conducting bingo games. Skateland’s owner/lessor, the plaintiff Theriot, sought and received in the district court a temporary restraining order enjoining enforcement of § 8.5-4(A)(4) of the ordinance. Theriot claimed that the section was unconstitutional because it was an unreasonable exercise of police power which deprives him of the use, enjoyment, profits and value of his property without due process of law, in contravention of the Fifth and Fourteenth Amendments to the United States Constitution and article 1, sections 2 and 4 of the Louisiana constitution.

At the hearing on the matter, the trial judge determined that § 8.5-4(A)(4) was unconstitutional under Louisiana law. The judge found that § 8.5-4(A)(4) attempted to distinguish between “small time neighborhood type charitable bingo” and “large scale, casino-like gambling” and sought to outlaw the latter by limiting the number of times charitable bingo could be held in any one facility (no more than two days during any calendar week). With such a scheme, according to the trial judge, the local government was excluding certain types of bingo games from the legislative exemption otherwise granted charitable raffles, bingo and keno in La.R.S. 33:4861.1 et seq. Relying upon this Court’s decision in City of Shreveport v. Kaufman, 353 So.2d 995 (La. 1977), the trial judge concluded:

Section 8.5-4(A)(4) of Ordinance No. 2187, enacted for the purpose of prohibiting large scale, casino-type bingo conducted by charitable organizations, attempts to enlarge the state’s definition of gambling and thereby encroaches upon the constitutional mandate that only the state shall define gambling [La. Const, art. 12 § 6], Since the section of the ordinance impinges upon a property right of the plaintiff, to lease his property to licensed charitable organizations, it works irreparable harm upon the plaintiff. Mr. Theriot is clearly entitled to a preliminary injunction prohibiting the Terre-bonne Parish Police Jury from enforcing Section 8.5-4(A)(4) of Ordinance No. 2187.

The Terrebonne Parish Police Jury has appealed the trial court’s finding § 8.5-4(A)(4) unconstitutional. La. Const, art. 5 § 5(D).

For the reasons which follow, we find that § 8.5-4(A)(4) is not unconstitutional. Its enactment was pursuant to and consistent with La. Const, art. 12 § 6 and La.R.S. 33:4861.1 et seq. and represents a reasonable exercise of police power by a local governing authority that is not inconsistent with the due process standards of our federal and state constitutions.

The state constitutional and statutory framework within which the Terrebonne Parish Police Jury enacted its Ordinance No. 2187 is the following.

La. Const, art. 12 § 6 provides:

Neither the state nor any of its political subdivisions shall conduct a lottery. Gambling shall be defined by and suppressed by the legislature.

While this provision expressly prohibits lotteries conducted by the state or its political subdivisions, it otherwise leaves the control of gambling to the Legislature. The provision requiring the definition and suppression of gambling is not self-executing and gambling essentially is a crime only when and to the extent that the Legislature has so declared it. Gandolfo v. La. State Racing Commission, 227 La. 45, 78 So.2d 504 (1954).

Pursuant to its constitutional authority, the Legislature enacted La.R.S. 14:90(A) which defines and prohibits gambling:

R.S. 14 § 90. Gambling

A. Gambling is the intentional conducting, or directly assisting in the conducting, as a business, of any game, contest, lottery, or contrivance whereby a person risks the loss of anything of value in order to realize a profit.
Whoever commits the crime of gambling shall ...

La.R.S. 14:90.2 specifically defines and prohibits gambling in public:

R.S. 14:90.2 Gambling in Public
A. Gambling in public is the aiding or abetting or participation in any game, contest, lottery, or contrivance, in any location or place open to the view of the public or the people at large, such as streets, highways, vacant lots, neutral grounds, alleyway, sidewalk, park, beach, parking lot, or condemned structures whereby a person risks the loss of anything of value in order to realize a profit.

The Legislature has also defined some exceptions to these general prohibitions against gambling. See, e.g. La.R.S. 14:90(B) [games on board commercial cruise ships] and more pertinent here, La.R.S. 14:90.2(B) which states:

R.S. 14 § 90.2. Gambling in Public
B. This Section shall not prohibit activities authorized under the Charitable Raffles, Bingo and Keno Licensing Law, nor shall it apply to bona fide fairs and festivals conducted for charitable purposes.

The Legislature’s role in “defining” and “suppressing” gambling has been prescribed by 1974 La. Const, art. 12 § 6 and predecessor constitutional provisions. La. Const, art. 19 § 8 (1921); La. Const, arts. 178, 188, 189 (1913); La. Const. arts. 178, 188, 189 (1898); La. Const, arts. 167, 172 (1870); La. Const, art. 116 (1864); La. Const, art. 113 (1852); La. Const, art. 116 (1845). City of Lake Charles v. Marcantel, 125 La. 170, 51 So. 106 (1910); Town of Ruston v. Perkins, 114 La. 851, 38 So. 583 (1905).

The power to suppress and/or to define gambling has often been granted by the Legislature to local governing authorities. See, La.R.S. 33:4851 (Municipalities over 5000 but less than 100,000 inhabitants may pass ordinances prohibiting gambling); La. R.S. 33:4851.1 (Municipalities with less than 100,000 inhabitants may pass laws prohibiting, defining, and providing penalties for gambling.) La.R.S. 33:4852 (Police juries may suppress gambling with cards, excepting private games); La.R.S. 33:4853 (Police juries may enforce La.R.S. 33:4852 with specified penalties); La.R.S. 33:4854 (Municipalities of less than 5000 inhabitants may regulate pool rooms and turf exchanges and provide penalties for violations). • See also, La.R.S. 4:141 et seq.: “Horse Racing,” which this Court found to be constitutional in Gandolfo v. Louisiana State Racing Commission 227 La. 45, 78 So.2d 504 (1955).

La.R.S. 33:4861.1 et seq., “Charitable Raffles, Bingo and Keno Licensing Law” was passed by the Legislature in 1968. Under La.R.S. 33:4861.3, “[t]he governing authority of each parish shall decide whether charitable raffles, bingo and keno as provided for in this Part shall be permitted within the parish.”

Pursuant to that authority and after following the requisite procedures for notice, publication and public hearing, the Terre-bone Parish Police Jury enacted Ordinance No. 2187.

Ordinance No. 2187 for the most part tracks the language and licensing procedures of La.R.S. 33:4861.1 et seq. The licensing procedures generally are not at issue here. What was offensive to the plaintiff, and to the trial judge considering the constitutionality of the ordinance, was that portion of the ordinance which restricted each facility’s hosting bingo and keno games on only two days during any one calendar week. That provision makes illegal the bingo games held on an average of five days a week at Skateland Arena.

The only provision of the bingo licensing statute which addresses the frequency of charitable games authorized as exceptions to the general prohibition against gambling as a business, is La.R.S. 33:4861.11 which provides that charitable games of chance may not be held under any local license “oftener than on six days in any calendar month.” Skateland’s bingo tenants are charitable organizations, no one of which conducts more than six games per month.

Because La.R.S. 33:4861.1 et seq. does not itself limit the number of times charitable bingo may be held in a given week in a given facility, the respondent argues that the imposition of such a limit by local ordinance exceeds the grant of authority to the police jury given by the Legislature. That argument, however, runs contrary to the express legislative delegation of authority to local governing bodies contained within the Charitable Raffles, Bingo and Keno Licensing Law.

La.R.S. 33:4861.10 places the responsibility for the control and supervision of raffles, bingo or keno games and for the promulgation of rules and regulations governing the holding, operating and conducting of such games squarely on the municipality or the governing body of any parish issuing licenses to charitable organizations. This, coupled with La.R.S. 33:4861.3 which places the outset decision of whether to permit or prohibit charitable raffles, bingo or keno within the parish on the local governing authority, convinces us that the more restrictive local ordinance is in keeping with, rather than contrary to, the legislative authorization. Furthermore, the scheme set out by the Legislature by which local governing authorities are to determine whether and how restrictively to authorize charitable bingo is in keeping with the Legislature’s constitutional mandate (La. Const, art. 12 § 6) to define and to suppress gambling.

As stated earlier, however, the focal point of respondent’s argument in the court below was that § 8.5-4(A)(4) of Ordinance No. 2187 was an unreasonable exercise of police power which resulted in his being deprived of the use, enjoyment, profits and value of his property without due process of law. Fifth and Fourteenth Amendments; La. Const, art. 1 §§ 2 and 4. For the reasons which follow, we conclude to the contrary and find that § 8.5-4(A)(4) was enacted pursuant to an appropriate exercise of police power by the Terrebonne Parish Police Jury.

Section 8.5-4(A)(4) is neutral on its face. [“No facility shall be used to hold, operate and/or conduct raffles or bingo or keno games on more than two days during any calendar week”; “Facility” is defined within the ordinance at § 8.5-l(4) as “any building, structure, hall, house, apartment, church or other place where people may gather.”] The ordinance restricts not just Skateland Arena, nor just those facilities hosting “large scale, casino-like gambling” (in the words of the trial judge). The ordinance prohibits charitable raffles, bingo or keno games of any size or description in any “building, structure, hall, house, apartment, church or other place where people may gather” on more than two days in any given week.

There is no contention that the ordinance will be applied in less than an equal manner. Nor is there a fundamental right or suspect classification involved here.

The contention basically is that Theriot’s property rights have been abridged without due process of law by § 8.5-4(A)(4) which limits the renting of his building for charitable bingo games to two days a week.

The federal and state constitutions provide that no person shall be deprived of property without due process of law. U.S. Const. Fifth and Fourteenth Amendments; La. Const, art. 1 § 2. Balanced against this substantive due process right, however, is the police power of governing authorities to protect the health, safety, morals and general welfare of the people: “the inherent need of governments to protect the safety and welfare of their citizens from the unrestrained liberty of some individuals.” No-wak, Constitutional Law 389 (1978), citing Corwin, Liberty Against Government 72 (1948):

§ 4861.3. Decision whether to permit raffles, bingo and keno.
The governing authority of each such municipality shall decide whether charitable raffles, bingo and keno as provided for in this Part shall be permitted within the limits of the municipality.
The governing authority of each parish shall decide whether charitable raffles, bingo and keno as provided for in this Part shall be permitted within the parish.

La. Const, art. 1 § 4 states:

Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.

Professor Hargrave, in “The Declaration of Rights of the Louisiana Constitution of 1974,” 35 La.L.Rev. 1 at 12 (1974) notes: “The background of [this] provision indicates an understanding that the statutory limitations and police power regulations are to be given a broad ambit.” See, e.g. Brown v. State, through Dept. of Public Safety, Division of Louisiana State Police, 392 So.2d 415 (La.1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3085, 69 L.Ed.2d 955, wherein La.R.S. 15:31 which allowed police to destroy slot machines summarily, was found to accord with the mandate of La. Const, art. 12 § 6 to suppress gambling, and did not violate the due process and right to private property principles contained in La. Const, art. 1 § 2.

In Board of Barber Examiners of Louisiana v. Parker, 190 La. 214, 182 So. 485 at 490-91 (1938), this Court quoted approvingly Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934) as support for the principle that private rights must yield to the public good.

Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest. 291 U.S. at 510, 54 S.Ct. at 506.

Later in the Board of Barber Examiners opinion, we specifically considered the question of the extent of the state’s police power in matters of public welfare.

Police power is inherent in the state. Under that power the state may enact laws to protect and preserve social order, to restrict and punish crime, to preserve the public peace, to safeguard and protect the health and morals of the people, even though the effect of such laws is to strike down private contracts, to deprive the citizen of his liberty to contract and to take from him or destroy his property. But the legislature is prohibited from enacting such laws except on proper occasions and for adequate reasons. If the reasons are not adequate, such legislation violates the due process clauses of the Constitutions. (Emphasis in original). 182 So.2d at 491.

The substantive guarantee of due process in the federal and state constitutions requires only that the legislation have a rational relationship to a legitimate state interest. City of New Orleans, v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976); Williamson v. Lee Optical, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); Harry’s Hardware, Inc. v. Parsons, 410 So.2d 735 (La.1982).

An ordinance, like a state statute, is presumed to be constitutional and the party attacking the ordinance has the burden of proving its unconstitutionality. An ordinance will be upheld if there exists a reasonable relationship between the law and the public good. Gilbert v. Catahoula Parish Police Jury, 407 So.2d 1228 (La.1981); City of Shreveport v. Curry, 357 So.2d 1078 (La.1978); Everhardt v. City of New Orleans, 253 La. 285, 217 So.2d 400 (1968); Hi-Lo Oil Company v. City of Crowley, 274 So.2d 757 (La.App. 3d Cir.), writ refused, 277 So.2d 673 (La.1978).

As discussed more fully earlier in this opinion, the suppression, or regulation, of gambling is a legitimate state interest. La. Const, art. 12 § 6; La.R.S. 14:90; La. R.S. 14:90.2. Defining and prescribing means of suppression are left to the state legislature and the legislative determination in this regard constitutes an appropriate exercise of police power for protection of the public. Brown v. State, etc., supra; Vaughan v. Dowling, 243 La. 390, 144 So.2d 371 (1962). The Legislature in excepting charitable raffles, bingos and kenos from the general prohibition has delegated the decision to permit or prohibit such games to the respective municipalities or governing authorities. La.R.S. 33:4861.3.

The governing authority of Terre-bonne Parish has the right under its legislative grant of authority to prohibit the holding of charitable games of chance, or to prescribe such restrictions or limitations in this regard as they see fit. La.R.S. 33:4861.10. Therefore if the means chosen by the Terrebonne Parish Police Jury to control and supervise the holding, operating and conducting of charitable raffles, bingo and keno games within their parish is not arbitrary or capricious, but is rational and reasonable, it conforms with constitutional standards of substantive due process.

The transcript of testimony at the hearing for the preliminary injunction confirms the reasonableness and rationality of the means chosen under these circumstances.

On the one hand, the police jurors recognized the good that may be accomplished by use of the proceeds of bingo games conducted by charitable organizations, as was attested to at the public hearing held on the ordinance (reportedly one of the best ever attended in the history of the parish). On the other hand, a majority of the police jurors were equally aware of the potential for a natural escalation of gambling within the parish were the bingo games to remain unrestricted, a concern also expressed by constituents. There was a specific need for better reporting, for better controls over charitable raffles, bingo and keno games, and over those with responsibility for their operation. The ordinance was to provide rules and regulations which would apply equally to all charitable organizations within the parish.

Several alternatives were considered and rejected. Outlawing bingo games completely was rejected because of the harm such might bring to the local organizations which depended on the proceeds for their various charitable projects. Limiting the size of the “pots” was considered and rejected. Likewise, dividing the parish into zones along police jury election district lines and allowing charitable organizations to hold games only within their respective home districts was considered. This alternative was rejected, for the most part because there were no charitable organizations in Skateland’s district. If so enacted, the ordinance would have been particularly oppressive to those charitable organizations using the Skateland facility. No games at all could have been held at Skateland were such a zone plan to have been enacted. The police jury chose limiting two bingo days per week in any given facility as the solution which best struck a balance between prohibition on the one hand and unrestricted charitable games on the other.

Therefore the section whereby charitable raffles, bingo or keno games are limited in any one facility in the parish to only two days in any given week is rationally related to the control and supervision of such games within the parish and does not offend the constitutional guarantees of substantive due process.

For the foregoing reasons we find that § 8.5-4(A)(4) of Ordinance No. 2187 does not in any respect violate, or exceed the authority given the police jury, by La.R.S. 33:4861.1 et seq.; that § 8.5-4(A)(4) is by virtue of the legislative scheme in keeping with Louisiana constitutional provisions relative to gambling; that § 8.5-4(A)(4) does not violate state and federal due process guarantees; and that § 8.5-4(A)(4) is thus constitutional.

Decree

The judgment of the trial court that § 8.5-4(Á)(4) of Terrebonne Parish Ordinance No. 2187 is unconstitutional is reversed; the preliminary injunction granted in favor of plaintiff in the district court is recalled.

REVERSED; PRELIMINARY INJUNCTION RECALLED.

      . Including a provision restricting the use of a given facility to conduct bingo and keno games, the ordinance was passed on December 8,1982, under authority of R.S. 33:4861.1 et seq., the “Charitable Raffles, Bingo and Keno Licensing Law.”

      . In City of Shreveport v. Kaufman, 353 So.2d 995 (La.1977), this Court found that local authorities could not classify as gambling those activities which the state legislature had not classified as gambling. The state law, La.R.S. 14:90, prohibits gambling “conducted], as a business.” The Shreveport ordinance went beyond that definition and prohibited non-business gambling as well.

      . La. Const, art. 5 § 5(D) provides for the direct appeal to this Court if an ordinance has been declared unconstitutional.

      . For a review and discussion of the history of lotteries in Louisiana up to and through the 1973 Constitutional Convention, see Hargrave, 43 La.L.Rev. 647 at 677 et seq.

      . La.R.S. 33:4851.1 giving the power to define gambling to municipalities with population of less than 100,000 was enacted in July, 1952, on the heels of a January, 1952 decision of this Court. City of Alexandria v. Lacombe, 220 La. 618, 57 So.2d 206 (1952) held that the legislature had taken away the power to define gambling from cities with a population of less than 100,000 by enacting La.R.S.- 33:4851 without express mention of the power to define gambling and by passing La.R.S. 14:90 which contained a statewide definition of gambling.

      . The “Charitable Raffles, Bingo and Keno Licensing Law” was enacted by Acts 1968, No. 609 § 1, as Subdivision 1-A of Subpart B of Part V of Chapter 1 of Title 14, containing R.S. 14:90.1 to 14:90.16. On authority of R.S. 24:253, the provisions were transferred and re-designated R.S. 33:4861.1 to 33:4861.16.

      . La.R.S. 33:4861.10 reads in full:
      § 4861.10 Control and supervision over games
      The municipality or governing body of any parish issuing any license under this Part shall have and exercise control and supervision over all games of chance held, operated or conducted under such license, to the end that the same are fairly held, operated and conducted in accordance with the provisions of such license, the rules and regulations promulgated by the municipality or governing body of any parish and the provisions of this Part governing the holding, operating and conduct of the same, and such municipality or governing body of the parish shall have power and authority to suspend any license issued by such governing body and to revoke the same, after hearing, for any violation of any such provision, and shall by its officers and agents have the right of entry at all times into any premises where any such game of chance is being held, operated and conducted or where it is intended that any such game of chance shall be held, operated and conducted, or where any equipment being used or intended to be used in file conduct thereof is found, for the purpose of inspecting the same.

      . La.R.S. 33:4861.3 reads in full:

      . In Board of Barber Examiners, 190 La. 214, 182 So. 485 (1938), a state statute regulating barbers in their work was challenged under the due process clauses of both federal and state constitutions and upheld as a valid exercise of police power.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Audrey E. MASSEY, Jr.
    No. 82-KA-1228.
    Supreme Court of Louisiana.
    June 27, 1983.
    Rehearing Denied Sept. 1, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John F. Rowley, Dist. Atty., Glen Diaz, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Manuel Fernandez, Daniel Dysart, Law Offices of Manuel Fernandez, Chalmette, for defendant-appellant.
   MARCUS, Justice.

Audrey E. Massey, Jr. was indicted by the grand jury for first degree murder in violation of La.R.S. 14:30. The indictment was subsequently amended to charge defendant with second degree murder in violation of La.R.S. 14:30.1. Defendant entered a plea of not guilty and not guilty by reason of insanity. After a 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. On appeal, defendant relies on three assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the state failed to prove specific criminal intent, an essential element of the crime of second degree murder. He argues that his intoxication precluded the presence of such an intent.

Our review of the record reveals the following facts. On January 17,1980, defendant, a maintenance employee at Tenneco Oil Refinery in St. Bernard Parish, left his home at about 7:30 a.m. At this time, the union was on strike at Tenneco and defendant, a union member, went to the refinery and walked the picket line from 8:00 a.m. until 12:00 noon. Thereafter, defendant went to Chick’s, a local bar, where he drank several beers until 4:00 p.m. He left and went to Vic’s Bar where he was joined by Gregory Green. At 10:00 p.m., he and Mr. Green proceeded to Sal’s Bar where defendant played pool and drank beer until it closed at 1:30 a.m. and then to Q.C.’s Bar until it closed at 2:30 a.m. They then went to Lehmann’s Bar and stayed until they parted company at about 3:30 or 3:45 a.m. At this time, defendant called his wife to pick him up as he had lost the keys to his truck.

Mrs. Massey drove to Lehmann’s, picked defendant up and took him home. At their house, defendant watched television with his wife. He discussed the situation in Iran, the failure of his children to do the tasks he had asked them to do and the strike situation at Tenneco. His wife fixed him eight eggs for breakfast which he ate. About 7:00 a.m., Mrs. Massey attempted to help defendant up the stairs to their bedroom. He pushed her aside, went into a small room where he kept his hunting and fishing equipment and removed a .12 gauge shotgun, and a 30-30 deer rifle which he put in the front seat of his wife’s car. He asked his wife to drive him to Lehmann’s Bar so he could pick up his truck. She became alarmed and told their seventeen-year-old son to call Hector Hernandez, a close personal friend, and then tried to stall her husband until Hernandez could arrive. Defendant’s son called Hernandez and told him: “My mama wanted you to come over right away. My dad is going to shoot up Tenneco.” Shortly thereafter, they left the house. As they were driving, Mrs. Massey saw Hernandez pass and turned to go back to their home. Defendant told her to pull off the road. When she came to a stop, he grabbed the wheel, pushed her out of the car and drove off.

About 7:30 a.m., defendant arrived at Tenneco and turned down Paris Road which leads to a contractor’s gate to the refinery. The gate was being manned by Jill Taglia-vore and Jerry Singletary. As defendant approached the gate, he pulled slightly off the shoulder of the road, as if to enter, but was flagged on by Singletary. He went by the gate and headed toward the river. When he reached the end of the road, he turned around and returned to the gate area. He went by the gate about thirty yards and then made a big “hoop” in the highway across Paris Road. He drove off of the road onto a shell area in front of an Exxon gate fifteen or twenty yards directly across from where Singletary and Taglia-vore were standing. Defendant was driving in a completely normal manner. Tenne-co maintained a camera which panned the entire area and recorded defendant’s maneuvers. He was neither zig-zagging nor did he cross the center line during this time.

Defendant sat in his car and a “minute or two” later Mr. John “Bud” Hurst, supervisor of the Tenneco maintenance department, arrived in a red company pickup truck. Hurst drove past defendant, made a similar “hoop” turn and parked his truck in the gate area parallel to defendant’s car. Mr. Hurst got a cup of coffee and standing between Singletary and Tagliavore began to talk to them. Two or three minutes later, Hernandez arrived. He had spotted defendant’s car from the main road, St. Bernard Highway, turned onto Paris Road and approached the gate area where defendant’s car was parked. As he did so, he saw defendant “wrestling” with the deer rifle which was now in the back seat of the car and tangled in the seat belt. Hernandez pulled his truck in front of defendant’s car in an effort to block him. Hernandez got out of his truck and approached defendant’s vehicle. Defendant began to slowly move his car ten or twelve feet backward and then forward as Hernandez attempted to approach the car. Defendant then threw his car in reverse throwing shells and dust on Hernandez. When he stopped, both Hernandez and Singletary saw the rifle come out of the window on the passenger’s side of the car. Singletary at first thought it was a camera aimed directly at them until he recognized that it was a rifle. Defendant, who was a “very good” shot, fired once and hit Bud Hurst. The bullet entered “his body behind the right shoulder” and went “through an aorta which is the major blood vessel leaving the heart.” Hurst died instantly. Hernandez ran to the driver’s side of defendant’s car and grabbed the rifle but another shot went off hitting the company pickup truck. Hernandez took the guns away from defendant and went to see if he could help the victim. Defendant drove off.

The police were summoned and at 7:55 a.m., only minutes after the shooting, they arrived at defendant’s home. They told one of defendant’s children to tell him to come out of his house with his hands on his head. Defendant exited the house as told. He was advised of his rights and placed under arrest at 7:59 a.m. Although the officers noticed a smell of alcohol about defendant, they did not think he was intoxicated. He appeared to be coherent and responded to all orders and instructions. He was not mumbling, stuttering or stumbling. He was taken to the sheriff’s office where he was again advised of his constitutional rights. Defendant was also asked several questions including his age and the number of years he had completed in school. Defendant answered these questions and others without hesitation. He responded that he understood his rights and signed a waiver of rights form at 8:16 a.m. The officers also filled out an arrest form in which they indicated that defendant “had been drinking” as opposed to being intoxicated.

At trial, several persons testified as defense witnesses who had been with defendant on the day before and/or the early morning hours the day the shooting took place. Although all of these persons testified that defendant was a “heavy drinker,” only one of these individuals could testify as to the amount of beer defendant had consumed on the. night and morning before the shooting. Mr. Green, who had been with defendant from 4:00 p.m. on the 17th until 3:30 a.m. on the 18th, testified that he and defendant drank 30 beers. However, on cross-examination, he testified that he was not sure how many beers defendant drank and that he had left defendant for one or two hours to play cards while they were at Sal’s. He further admitted that he was not qualified to give an opinion on defendant’s state of intoxication since he too had been drinking. Sal Cusimano, the owner and operator of Sal’s and Q.C.’s bars and defendant’s former fellow worker and friend of fifteen years, testified that defendant had been drinking beer and shooting pool in Sal’s and was not drunk when it closed at 1:30 a.m. However, he further testified that defendant and his companions went to his other establishment, Q.C.’s, where they continued to shoot pool and at 2:30 a.m. when this bar closed, defendant was drunk. Mr. Ralph Bourg, defendant’s friend of twenty-three years, testified that he saw defendant from the door of Lehmann’s Bar at 4:30 a.m. and defendant appeared to be drunk. However, this testimony is in conflict with that of Mrs. Massey, who testified that she picked defendant up at 3:30 or 3:45 a.m. Mrs. Massey testified that when she picked defendant up at Lehmann’s, he appeared to be very intoxicated. However, she further testified that defendant had nothing further to drink during the time that he was home. She also stated that when defendant returned from Tenneco, he was “walking a lot better than he had been walking before.”

In addition to the above, defendant also presented the testimony of two psychiatrists, Dr. Kenneth Ritter and Dr. J. Robert Barnes. Both of these doctors concluded that defendant was not legally insane at the time of the commission of the crime but it was possible that defendant had suffered from an alcohol blackout. However, on cross examination, Dr. Barnes, when asked if defendant knew what would happen when he pulled the trigger on a loaded gun at the time of the shooting, replied: “I have to presume that he did. There is no evidence to the case that he didn’t. He was a hunter. He knows what to do with a gun. He was a successful hunter. He knows how to handle them. He knows what happens when he uses them.” Dr. Ritter also stated that defendant “had an intent at the time to harm someone.”

Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La.R.S. 14:30.1(1). Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La.R.S. 14:10(1). Although intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction. La.R.S. 15:445; State v. Noble, 425 So.2d 734 (La.1983). Voluntary intoxication is a defense to a prosecution for second degree murder only where the circumstances indicate that it has precluded the presence of specific criminal intent. La.R.S. 14:15(2). On review of the sufficiency of the evidence to support a criminal conviction, it must be determined whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Noble, 425 So.2d 734 (La.1983).

In the instant case, the circumstances do not indicate that defendant’s intoxication precluded the presence of specific criminal intent required in second degree murder. Although the testimony indicated that defendant had been drinking for a long period of time, there was no testimony as to the exact amount of beer he had consumed. In addition, defendant had nothing to drink for at least three and one-half hours prior to the shooting and had eaten a large breakfast during this period. He was able to drive in a normal manner to the refinery, park his vehicle, aim his rifle and shoot the victim through the heart at a distance of thirty yards. The police testified that defendant was not intoxicated at the time of his arrest, only minutes after the shooting took place, and that he was coherent and responded to all orders and instructions. Viewing this evidence in the light most favorable to the prosecution, a rational trier of fact could have determined that defendant had the specific intent to kill or inflict great bodily harm.

Assignment of Error No. 1 is without merit.

We find that neither of the remaining assignments of error present reversible error, nor do they involve legal issues not governed by clearly established principles of law. They will be treated in an appendix which will not be published but which will comprise part of the record in this case.

DECREE

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

      . Defendant designated six errors to be urged on appeal in his assignment of errors filed in the district court. However, he expressly abandoned Assignments of Error Nos. 2 and 3 in his brief to this court. During oral argument, he abandoned Assignment of Error No. 5.


text:
    Jerome C. BENSON v. Howard Warren SEAGRAVES, Jefferson Davis Electrical Cooperative, Inc. and United States Fidelity and Guaranty Company.
    No. 82-C-2946.
    Supreme Court of Louisiana.
    June 27, 1983.
    Rehearing Denied Sept. 1, 1983.

      John B. Noland, Breazeale, Sachse & Wilson, Baton Rouge, for applicants.
    J.B. Jones, Jr., Jones, Jones & Alexander, Cameron, for respondents.
   MARCUS, Justice.

Jerome C. Benson, employee of Barbay Engineers, Inc., instituted this tort action for damages for personal injuries sustained by him while riding as a guest passenger in a truck driven by Howard Warren Seag-raves, owned by Jefferson Davis Electric Cooperative, Inc. (Seagraves’ employer) and insured by United States Fidelity and Guaranty Company (USF & G). Made defendants were Seagraves, Jefferson Davis and USF & G. Commercial Union Insurance Company, workmen’s compensation insurer of Barbay, intervened to recover compensation benefits paid to Benson.

Defendants answered generally denying the allegations of the petition and affirmatively set forth the defense of contributory negligence. In addition, defendants asserted the special defense of “statutory employer” claiming that Benson’s work was a part of Jefferson Davis’ trade, business or occupation. As such, defendants contended that Benson’s exclusive remedy was workmen’s compensation and thus they were not liable in tort.

At trial by jury, it was stipulated that the accident was caused by the negligence of Seagraves. The jury returned a special verdict finding Benson was not the statutory employee of Jefferson Davis and had sustained damages in the amount of $125,-000 as a result of the accident. The trial judge entered judgment in conformity with the jury’s answers and the stipulation of the parties relative to compensation benefits paid.

Benson appealed claiming that the jury abused its discretion in awarding him only $125,000 in damages. Defendants answered the appeal claiming that Benson was the statutory employee of Jefferson Davis; therefore, judgment should have been rendered in their favor. The court of appeal, finding that the “jury was in error in holding that Jeff Davis was not the statutory employer” of Benson, reversed the judgment of the trial court in favor of Benson and dismissed his suit. On application of Benson, we granted certiorari to review the correctness of that decision.

The record reveals the following facts. Jefferson Davis Electric Cooperative, Inc. is one of thirteen rural electric cooperatives in Louisiana. Its purpose is to supply electrical energy and to promote and extend the use thereof. Jefferson Davis is a relatively small electric cooperative with about thirty-four employees. It serves the parishes of Cameron, Calcasieu, Jefferson Davis and a small part of Allen and Vermilion. There are only two “electrical engineers" employed by Jefferson Davis — John S. Robbins and Howard W. Seagraves. Robbins, general manager since 1947, graduated from college with a bachelor of science degree in mechanical engineering. However, even though a registered engineer, he admitted that he had not “practiced as a design engineer for many years.” Rather, he acts in a managerial role which includes finances, supervision of the employees, public relations, and meetings with the board of directors. Seagraves, who has worked for Jefferson Davis since 1958, studied electrical engineering in college but never graduated. He acquired his engineering ability by experience and working under Robbins. However, Seagraves is not a licensed engineer. His basic duties and responsibilities are surveying power lines, making load checks on substations, and closing out work orders.

Primarily because of the economics of being a small electric cooperative, Jefferson Davis contracts out work to Barbay Engineers, Inc., a professional contracting firm involved in the areas of planning and designing facilities. One of the areas that Jefferson Davis contracts out is the actual designing of electrical work. Mr. Robbins stated that he leaves this type of work to professional consulting engineers but reserves the right to review it.

During the latter part of 1978, one of Jefferson Davis’ customers, Seacoast Products, Inc. of Cameron, Louisiana, contacted Jefferson Davis concerning the need to increase the power capacity at its plant because of expected expansion. As a result, Robbins contacted Barbay which assigned Jerome Benson, a licensed electrical engineer employed by Barbay, to the job: Benson, a college graduate with a bachelor of science degree in electrical engineering, was a specialist in substation design. After surveying the existing facilities at Seacoast Products, Benson advised Jefferson Davis that it would be necessary to design a new service substation adjacent to the existing facility. Subsequently, Benson, with the . approval of Jefferson Davis, proceeded with the design of a new substation. The finished design drawings were sent to Jefferson Davis. In order to discuss the need for the new facility and the financial arrangements for implementation thereof, Benson and Robbins scheduled a trip to the Seacoast facility on January 4, 1979. At the last minute, Robbins was unable to go due to another commitment. Seagraves was sent in his stead. They went in a Jefferson Davis truck driven by Seagraves. Upon arrival at the Seacoast plant, it was learned that the persons from the home office whom they were supposed to meet were not there. After getting “minimal information” from its plant engineer, they left. It was on the return trip that the truck in which they were riding hit into the rear of the tractor-trailer. Benson’s injuries included a compound comminuted depressed skull fracture, fracture of the right maxilla (jawbone), ankle fracture, loss of an eye, and facial disfigurements.

The first issue presented for resolution in this litigation is whether or not Jefferson Davis was the statutory employer of Benson.

La.R.S. 23:1061 provides in pertinent part:

Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; ...

Under the above statute, when a principal engages a contractor to perform work which is a part of the principal’s trade, business or occupation, the principal remains liable for compensation to any injured employee of the contractor. When the work performed by the contractor is part of the principal’s trade, business or occupation, workmen’s compensation is the exclusive remedy of the contractor’s injured employee. La.R.S. 23:1032. In a tort suit by an injured employee of a contractor, the principal has the burden of proving that the work being performed was part of its trade, business or occupation. Lewis v. Exxon Corp., 432 So.2d 860 (La.1983). This factual issue turns on the particular circumstances of each case. Lewis v. Exxon Corp., supra; Lushute v. Diesi, 354 So.2d 179 (La. 1977). If the work being performed by the contractor’s employee is customarily performed by employees of the principal, it is a part of the principal’s trade, business or occupation. Lewis v. Exxon Corp., supra.

In the instant case, Jefferson Davis (principal) contracted with Barbay (contractor) to perform electrical planning and design work in connection with a new service substation for one of its customers (Seacoast). Benson (employee of contractor) was injured during the performance of this work. Based on the facts of this case, we do not consider that the work performed by Benson was a part of Jefferson Davis’ trade, business or occupation. Jefferson Davis, as principal, did not have any employees who customarily performed this type of work. Mr. Robbins admitted that he had not practiced as a design engineer for many years. Rather, his time was taken up in a managerial role. Mr. Seagraves, a non-licensed engineer without a college degree, testified on direct examination that during his employment at Jefferson Davis (since 1958), he had designed, by himself, two substations similar to the one proposed for Seacoast. On cross-examination, he admitted “consultation” with Barbay on the projects. During a pretrial deposition, Seagraves did not mention “engineering” when describing his duties and responsibilities. He also answered in the affirmative to the question: “Is all of the engineering work for Jeff Davis Electric Coop done by Barbay Engineers?” Benson was recalled to the stand in rebuttal. He testified that while a proposed “platform” design had been received from Jefferson Davis for one of the projects mentioned by Seagraves, the drawing had the “marks of an engineer who had prepared it. Moreover, after being advised by Mr. Robbins that he preferred a substation design, Mike Underwood (another engineer at Barbay) and he drew up a complete new substation design which was ultimately used. As to the design of the other substation mentioned by Seagraves, Benson stated that the design work on that project was also done by Underwood and himself. Clearly, Jefferson Davis did not prove that the work being done by Benson was customarily performed by Jefferson Davis’ employees. Hence, it was not a part of its trade, business or occupation. Therefore, Jefferson Davis is not thé statutory employer of Benson. The court of appeal erred in holding otherwise. We must reverse.

Because the court of appeal sustained the statutory employer defense, it did not reach the issues of contributory negligence and quantum. We therefore consider it more appropriate to remand the case to that court for it to determine whether or not Benson was contributorily negligent and, if not, the adequacy of the award of damages.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and the case is remanded to the court of appeal for further proceedings consistent with the views herein expressed.

      . It was alleged that the accident occurred when the truck driven by Seagraves rear-ended a tractor-trailer owned by the Louisiana Department of Transportation and Development.

      . Specifically, defendants alleged that Benson failed to maintain a proper lookout and to observe safety rules and regulations.

      . Defendants also third-partied the Louisiana Department of Transportation and Development, owner of the tractor-trailer involved in the accident, and its insurer, Travelers Insurance Company. This action was later dismissed on a motion for summary judgment filed by the third party defendants.

      . 421 So.2d 995 (La.App. 3d Cir.1982).

      . 427 So.2d 1200 (La. 1983).

      . By contrast, Slemco Electric Cooperative has 200 employees, Dixie Electric Cooperative has 164 employees, and Beauregard Electric Cooperative has 90 employees.

      . This was done pursuant to a contract between Jefferson Davis and Barbay, dated August 1, 1977, entitled “Engineering Service Contract For Consultation Services.”

      . A substation is a structure where bulk power is transformed from a high voltage to a lower one.

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

      . Rehearing granted June 24, 1983.