author: DENNIS, Justice.

text:
    STATE of Louisiana v. Paul KNOWLES, Jr.
    No. 82-KA-1893.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Dorothy A. Pender-gast, Stephen Little, William C. Credo, III, Asst. Dist. Attys., Kenner, for plaintiff-ap-pellee.
    Edward C. Keeton, Gretna, Robert T. Garrity, Jr., Harahan, for defendant-appellant.
   DENNIS, Justice.

Defendant, Paul Knowles, Jr., was convicted by a jury of second degree murder, La.R.S. 14:30.1, and sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant appealed and urges the failure to suppress his confession as his only assignment of error.

During the investigation of the homicide of defendant’s friend, Frank Emery, to which the defendant had been linked by fingerprint evidence, defendant was questioned at the police station where he was advised of his Miranda rights. Defendant at first refused to answer any questions without the presence of a lawyer, and the investigating officers honored his request. Defendant later, however, blurted out in the presence of investigating Officer Nico-losi, “I killed him, I killed Frank Emery,” after completing a telephone call to his relatives in Florida during which he became emotionally upset and wept. Officer Nico-losi immediately readvised defendant of his rights and asked him if he was willing to answer questions without a lawyer. This time the defendant assented, signed a waiver of rights form and gave a full confession to the murder.

Defendant argues that the blurted out statement that he killed Frank Emery was not a statement which “initiates further communication, exchanges or conversation with the police,” and that therefore statements by the defendant growing out of the interrogation should have been excluded under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). In Edwards the Supreme Court held that an accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversation with the police. The court restated the requirement in Wyrick v. Fields, — U.S. -, -, 103 S.Ct. 394, 395, 74 L.Ed.2d 214 (1982) (per curiam), to be that before a suspect may be subjected to further interrogation after he requests an attorney there must be a showing that the “suspect himself initiates dialogue with the authorities.”

In Oregon v. Bradshaw, — U.S. -, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) the Supreme Court held that by his question “Well, what is going to happen to me now?” an accused “initiated” further conversation with police. The court noted that there are undoubtedly situations where a bare inquiry, such as a request for a drink of water or to use the telephone, is so routine that it cannot fairly be said to represent a desire on the part of an accused to open up a more generalized discussion relating directly to the investigation. But the accused’s question as to what was going to happen to him, although ambiguous, was found by the high court to evince a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship and could reasonably have been interpreted by the officer as relating directly to the investigation.

In the present case, even more so did defendant’s statement that he had killed Frank Emery evince a willingness and a desire for a generalized discussion of the investigation. His statement was a confession to the homicide under investigation and not a necessary inquiry arising out of the incidents of the custodial relationship. The officer present could reasonably have understood that the confession was addressed to him and constituted an obvious desire to discuss the matter fully. Since the defendant’s statement amounted to an initiation of further communication with the police, and because the officer readvised the defendant of his rights and obtained a valid waiver of them before proceeding with further interrogation, there was not a violation óf the Edwards rule.

The defendant also argued that the state did not prove that the waiver of his rights was knowing and intelligent or that his confession was voluntary because he was emotionally upset and because Officer Gallagher, a second officer involved in the investigation, stated to Officer Nicolosi in his presence that another suspect, Wallace Welch, had made statements not in the best interests of the defendant. Both officers testified, however, that although the defendant was upset he composed himself and intelligently responded to questions. Officer Gallagher testified that at some point, he could not recall the exact time, he told Nicolosi that Welch had given a statement. When asked by defense counsel whether he was certain that defendant had not overheard his remarks, Gallagher repeated that he could not recall when he told Nicolosi about Wallace Welch’s statement. Officer Nicolosi testified that during defendant's telephone conversation he walked into another room in which Officer Gallagher was questioning Welch, momentarily listened to the conversation, and learned that Welch was making statements which he described as “a little derogatory towards the incident, as far as Mr. Knowles was concerned”. Nicolosi was never questioned by defense counsel about any conversation with Officer Gallagher. Moreover, the sequence of events makes it appear unlikely that the defendant could have overheard any information about Welch’s statement before the defendant finished his telephone call and confessed. The trial court judge determined that the defendant’s waiver was valid and that his confession was voluntary. From our review of the record, we conclude that his determination was reasonable, that the confessions were properly introduced, and that there is no basis for reversal of the conviction. For the reasons assigned, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: LEMMON, Justice.

license: Public Domain

text:
    LOUISIANA STATE BAR ASSOCIATION v. Gregory M. POROBIL.
    No. 82-B-2025.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
    Thomas 0. Collins, Jr., Richard A. Deas, Wood Brown, III, New Orleans, Robert J. Boudreau, Lake Charles, Sam J. D’Amico, Baton Rouge, Carrick R. Inabnett, Monroe, Harold J. Lamy, New Orleans, Alfred S. Landry, New Iberia, Philippi P. St. Peé, Metairie, Roland J. Achee, Shreveport, Gerard F. Thomas, Jr., Natchitoches, for relator:
    Louis B. Porterie, Gretna, for respondent.
   LEMMON, Justice.

This is a disciplinary action instituted by the Louisiana State Bar Association, through its Committee on Professional Responsibility, against a member of the Association. The action is based on respondent’s conviction in federal court of being an accessory after the fact, in violation of 18 U.S.C. § 3, to the crime of furnishing of a false financial statement furnished by his brother to the Whitney National Bank.

At a hearing conducted by the Commissioner appointed by this court, the following facts were established: Respondent’s brother negotiated a $50,000 bank loan in November, 1977 for Checker Cabs, Inc., a corporation in which respondent and his brother each owned half of the stock. Respondent signed a continuing guarantee on behalf of his brother in connection with the loan. In February, 1978, the bank agreed to renew the loan, but required that respondent submit a personal financial statement. Based on a figure provided by his brother, respondent placed a value of $350,053.39 on his Checker stock.

When respondent and his brother met with a bank officer to complete the loan renewal, respondent saw for the first time the financial statement for Checker which his brother had prepared and submitted at the time of the original loan. Respondent noticed that the statement did not reflect any debts owed by Checker to Safety Finance Service. Although respondent did not know the exact amount of that liability, he did know that Checker owed a substantial amount of money to Safety both at the time of the original loan and at the time of the renewal. Nevertheless, respondent failed to disclose this inaccuracy to the bank officer or to change the valuation of his stock on his financial statement.

Respondent, along with his brother and his father, were ultimately charged in a 22-eount felony indictment based on the submission of the false financial statements, as well as other more serious offenses involving Safety Finance Service. On October 15, 1981, respondent pleaded guilty to the misdemeanor offense of accessory after the fact to the filing of the false financial statement. The federal judge sentenced respondent to one year imprisonment, but suspended the sentence and placed respondent on supervised probation for five years, conditioned on community service work of eight hours per week for two years and a fine of $2,500. Respondent has paid his fine and is currently performing the community service by representing abused and neglected children in juvenile court.

The Commissioner concluded that respondent was guilty of a crime which was serious enough to warrant discipline. However, the Commissioner noted several substantial mitigating factors to be considered in determining the extent of the recommended discipline, including the facts that respondent concealed the inaccuracy in the financial statement on behalf of a family member, not a legal client; that he did not personally benefit from this act; that the loan had never been placed in default or sued upon by the bank; that respondent was financially capable and willing to repay the loan, if necessary; that respondent had complied with the terms of his probation, had paid his fine in full, and was then performing eight hours of work per week in Juvenile Court; and that respondent sincerely regretted his actions. The Commissioner recommended that respondent be suspended from the practice of law for a period not to exceed six months, with the exception of his community service representation. The Association, while concurring with the Commissioner’s findings of fact, recommended a suspension of one year.

The sole issue to be determined in a disciplinary proceeding based on conviction of a crime is whether the crime warrants discipline and, if so, the extent thereof. Articles of Incorporation, La. State Bar Ass’n., Art. XV, § 8(7)(a)-(d). Mitigating circumstances which may be shown in disciplinary proceedings are those which do not amount to a justification or excuse for the offense, but which may properly be considered in mitigation or reduction of the disciplinary action to be taken. Articles of Incorporation, La. State Bar Ass’n., Art. XV § 8(7)(d).

Here, respondent knowingly participated in the furnishing of a personal financial statement which corroborated false information previously provided to the bank by his brother. However, respondent did not prepare the false financial statement. His failure to disclose the inaccuracy was for his brother’s sake and not for his own benefit. Neither the bank nor anyone else suffered a loss as a result-of this failure, and none is likely to occur.

Significantly, respondent’s conduct was not connected with the practice of law and did not involve any client or professional associate. The record does not show any previous complaints during respondent’s 10 years in the profession.

Furthermore, the charge to which respondent pleaded guilty was only a misdemeanor. The fact that the federal judge did not require any term of imprisonment whatsoever suggests that the judicial officer most familiar with the incident did not believe respondent’s unlawful conduct warranted a harsh sanction. We likewise conclude that the seriousness of the misconduct, when considered in the light of the mitigating factors, does not warrant a harsh sanction that might be appropriate in the case of more serious criminal conduct.

The purpose of disciplinary proceedings is to insure that attorneys maintain appropriate standards of professional conduct, thus protecting the public and the administration of justice. Louisiana State Bar Ass’n. v. Heymann, 405 So.2d 826 (La. 1981). This purpose is not served by imposing a greater sanction than is warranted by the seriousness of the offense in question, considered in light of all of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n. v. Weinstein, 416 So.2d 62 (La.1982). While respondent’s conduct was not serious enough to warrant disbarment or a lengthy suspension, the conduct did constitute a federal crime, and sanctions are necessary to preserve the integrity and dignity of the profession.

Accordingly, it is ordered that Gregory M. Porobil be issued an official public reprimand for his conduct in this matter. All costs are assessed to respondent.

      .The bill of information, to which respondent pleaded guilty, charged:
      "In or about February, 1978, in the Eastern District of Louisiana, Gregory M. Porobil, knowing that another individual had provided materially false financial statements to the Whitney National Bank, a bank whose deposits were insured by the Federal Deposit Insurance Corporation, in violation of Title 18, United States Code, Section 1014, did knowingly and willfully assist the individual in avoiding detection and apprehension for the offense in that the defendant subsequently provided the Whitney National Bank with a materially false personal financial statement that corroborated the false information previously provided by another, all in violation of Title 18, United States Code, Section 3.”

      . Respondent explained that he was afraid his brother would get into trouble, since the brother had already submitted the inaccurate information to the bank.

      . Respondent's brother and father were later convicted of more serious felony offenses and are now serving jail sentences.


author: LEMMON, Justice. CALOGERO, Justice, LEMMON, Justice,

text:
    STATE of Louisiana v. Larry GOUTRO, Jr.
    No. 82-KA-2117.
    Supreme Court of Louisiana.
    Jan. 16, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, III, Dist. Atty., Robert Brinkman, Asst. Dist. Atty., for plaintiff-appellee.
    Charles R. Browning, Livonia, for defendant-appellant.
   LEMMON, Justice.

This is an appeal from a conviction of aggravated rape and a sentence to life imprisonment at hard labor. The sole assignment of error is that the trial court erred in admitting the testimony of a witness who had been subjected to hypnosis for the purpose of enhancing her recollection of the events surrounding the crime. Since the state proved that the hypnosis did not affect the witness’ testimony, in that the witness after undergoing hypnosis did not recall any facts other than those she had related to the police prior to hypnosis, this case is controlled by State v. Wren, 425 So.2d 756 (La.1983), in which this court rejected a per se exclusion based on the fact of hypnosis alone.

The victim was an eight-year old girl. Because the child’s mother was to be away from home for several days, the child was left on March 5, 1981 in the care of the mother’s sister, Margie Fruge, who at the time was living with defendant. The rape (or rapes) occurred during the ensuing four-day period, during which Ms. Fruge and defendant consumed considerable amounts of alcohol and drugs.

The rape was reported to the chief of police (the victim’s uncle) during the early morning hours of March 9 by another sister of Ms. Fruge. The chief searched the town and found the child with defendant and Ms. Fruge in defendant’s car. He rushed the child, who was screaming in pain, to the hospital.

When initially questioned, both Ms. Fruge and the child blamed Joseph Smith (a fictitious name for a cousin of the child) for the child’s rape-related injuries. However, each quickly corrected this accusation, stating that defendant had ordered them to blame Smith if the vaginal injury came to the attention of the authorities. The same day, Ms. Fruge gave a detailed written statement to the police, in which she asserted that defendant had given the child a Quaalude and had instructed her to undress the child and to “finger” her in preparation for him. She added that defendant told her on one occasion during the four-day period that he had “stuck his finger in her [the child] and a little bit of his thing” and on another occasion that he had “put it all the way in that night”.

Prior to trial, Ms. Fruge was subjected to hypnosis by a police officer who had received some training in hypnotic techniques and who had been performing hypnosis for about a year. During the hypnotic session, according to the testimony of the officer, Ms. Fruge related the same events that she had described in her statement, but clarified the times and dates of these events, overcoming to some extent her previous difficulty in recalling times and dates.

At trial Ms. Fruge testified as follows: The child had fallen asleep after defendant gave her a Quaalude. Defendant then asked her “to finger her ... to open it up so that it wouldn’t be so hard for him to get it in”. Defendant later took the child to the bedroom, announcing his intention to have intercourse with the child. The next day she found defendant naked on one bed and the child clothed in panties and a T-shirt on the other bed in the room. Defendant told her that he had raped the child vaginally and anally. She later related this to her sister, who reported the incident to the police. Throughout the testimony, however, Ms. Fruge admitted that she could not remember much of the four-day period.

Because Ms. Fruge’s trial testimony was more confused and less clear than her initial written statement, the hypnotic session obviously did not produce any additional recollection of details. Therefore, as in Wren, this case does not involve the question of the admissibility of hypnotically-induced testimony, nor does it present any danger of “confabulation” or “undue suggestion”. There is not even the problem of a possible “cementing” of the witness’ memory which renders cross-examination ineffective to delve into possible inconsistencies or to reveal faulty recollection. Furthermore, the witness here was a close friend of defendant who testified concerning events which transpired in her presence, and there was no need to probe her memory on questions of identity or questions of the nature of the sexual abuse of the child. The sole object of the hypnosis was to clarify the time sequence of the events.

Adhering to Wren, we conclude that the trial court did not err in permitting the witness to testify.

Accordingly, defendant’s conviction and sentence are affirmed.

CALOGERO, J., concurs with reasons.

LEMMON, J., assigns additional reasons.

CALOGERO, Justice,

concurring.

I concur in the result reached by the majority. As stated in my remarks (concurring in part and dissenting in part) to State v. Wren, 425 So.2d 756 (La.1983), a witness who has been hypnotized should nonetheless be allowed to testify at trial to what he remembered and related prior to the hypnosis.

In order to prove this conclusively, it would appear that the state would have to present a written or recorded pre-hypnosis statement from the witness and a record of the hypnosis session itself. No such record was made of that session in the instant case.

However, I nonetheless concur in view of the fact that the witness’s testimony at trial was more disjointed than it had been in her pre-hypnosis statement, and because of the overwhelming evidence of defendant’s guilt even absent this witness’s testimony.

LEMMON, Justice,

assigning additional concurring reasons.

Because this case did not present any issues not previously addressed in the Wren decision, we did not attempt to set out guidelines which should be followed if a witness is subjected to hypnosis preparatory to use of the witness’ testimony at trial. Nevertheless, the question of whether and when hypnotically-induced testimony is admissible will eventually be confronted, as it has been in many other jurisdictions. See the cases collected in Justice Blanche’s opinion in State v. Wren, above. Therefore, law enforcement policy makers would do well to consider taking steps to assure a high degree of “scientific reliability” in hypnotic interview sessions, in order to make the “best case” for admissibility in the event that the witness recalls new information while under hypnosis.

Some courts have admitted hypnotically-refreshed testimony without requiring compliance with predicate guidelines for admissibility. See, for example, State v. Armstrong, 110 Wis.2d 555, 329 N.W.2d 386 (1983). On the other hand, some courts have refused to accept the scientific basis of hypnotically-refreshed memory, even when guidelines such as those promulgated by the Supreme Court of New Jersey in State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981) are followed. These courts, fearing the unreliability of such testimony (because of concerns about confabulation and undue dangers of distortion, delusion, or fantasy), have rejected its admissibility. See, for example, People v. Hughes, 59 N.Y.2d 523, 466 N.Y.S.2d 255, 453 N.E.2d 484 (1983).

Until the Legislature or this court adopts a firm position regarding the admissibility of testimony concerning matters recalled after hypnosis, law enforcement officers and prosecutors should, at the least, be prepared to demonstrate the content and degree of the witness’ recall before hypnosis. Obviously, a written or otherwise recorded statement (in as great detail as possible) should be taken. Second, the hypnotic session itself should be recorded so that there is no question as to the events recalled or the manner in which the hypnotic session was conducted. Third, the hypnosis should be conducted by a qualified (and preferably independent) hypnotist.

At this point, Louisiana courts have only taken one step: We have refused to follow those decisions which bar all testimony by a witness who has been subjected to hypnosis concerning the events about which he is to testify. We have held only that the witness’ testimony is admissible when the state proves that the hypnosis had no effect on the witness’ recall of events related before hypnosis. See State v. Moore, 432 So.2d 209 (La.1983); see also People v. Hughes, above.

At this juncture, this court has not adopted guidelines for admissibility under our supervisory authority and will probably handle the issue on a case-by-case basis. However, the cases will inevitably arise, and those in a policy-making position in law enforcement would be well advised to consider the guidelines and safeguards adopted in other jurisdictions if hypnosis is to be used to aid witnesses to strengthen their recollections.

      . The child also testified at trial, but did not remember anything that happened after defendant gave her a pill for her headache, except that she awoke hurting "at my bottom”. She further testified that defendant threatened to kill her if she told anyone about his actions and instructed her to say that her cousin had “done it to her”.

      . Another witness, Cathy Dixon, who was with Ms. Fruge, defendant and the victim at some point during the period, testified that the child told her defendant had “done it to the front and to the back".

      .Mrs. Fruge was initially indicted along with defendant, but she agreed to testify against him in return for a promise of use immunity and a promise that she would be prosecuted only as an accessory after the fact.

      . In Commonwealth v. Kater, 388 Mass. 519, 447 N.E.2d 1190 (1983), for example, the Massachusetts Supreme Court held that a witness may only testify concerning matters recalled before the hypnotic interview and may not testify concerning matters recalled as a result of "hypnotically-aided memory”. Kater also prospectively required that safeguards (guidelines and standards) be followed “to assure that the pre-hypnotic memory of witnesses would not be affected”.


author: DENNIS, Justice. WATSON, Justice,

text:
    Bruce E. MAYER v. VALENTINE SUGARS, INC., et al.
    No. 83-C-1388.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
    Rehearing Denied Feb. 15, 1984.

      Wood Brown, III, Montgomery, Barnett, Brown & Read, Brad G. Theard, Hebert & Abbott, New Orleans, for applicant.
    Ernest Lee Caulfield, Joel P. Loeffelholz, New Orleans, for respondent.
    John L. Dorsey, New Orleans, for amicus curiae.
   DENNIS, Justice.

By this suit an employee attempts to allege a cause of action in intentional tort against his employer. The trial court sustained the employer’s exception of no cause of action because of the conclusory manner in which he alleged the element of intent: the employee merely alleged that the employer’s officers knew to a substantial certainty that their acts in violation of safety regulations would cause an explosion which injured the plaintiff. In order to avoid the general rule that an employee’s exclusive remedy for a job related injury is worker’s compensation, the employee must prove that the injury resulted from an intentional act. La.R.S. 23:1032; Bazley v. Tortorich, 397 So.2d 475 (La. 1981). The court of appeal reversed, partially basing its opinion on La.C.C.P. art. 856.

We agree that La.C.C.P. art. 856 is controlling and conclude that the issue presented should be decided exclusively on this ground. Art. 856, in pertinent part, provides: “... Malice, intent, knowledge, and other condition of mind of a person may be alleged generally.” The official revision comment notes that a person’s malice, intent, knowledge or other condition of mind cannot be particularized, can only be raised through a general allegation thereof, and that this has been held to be sufficient under the jurisprudence. Parks v. Winnfield Life Ins. Co., 336 So.2d 1021 (La.App. 3rd Cir.1976); Cf. Brian v. Harper, 144 La. 585, 80 So. 885 (1919). Little v. Campbell, 20 So.2d 627 (La.App. 1st Cir.1945); See Federal Rule of Civil Procedure 9(b). Consequently, it was permissible for the employee to plead the intent element of his intentional tort cause of action generally and without particularity.

The purpose of an exception of no cause of action is to determine the sufficiency in law of the petition and is triable on the face of the papers; for the purpose of determining the issues raised by this exception, the well pleaded facts in the petition and any annexed documents must be accepted as true. La.C.C.P. art. 927; Haskins v. Clary, 346 So.2d 193 (La.1977); Pence v. Ketchum, 326 So.2d 831 (La.1976); Elliott v. Dupuy 242 La. 173, 135 So.2d 54 (La.1961); Johnson v. Edmonston 383 So.2d 1277 (La.App. 1st Cir.1980).

Accordingly, the plaintiff’s allegation that he was injured by an intentional act set forth a well pleaded fact because intent may be alleged generally. Accepting this and other well pleaded facts in the petition as true, plaintiff has sufficiently stated a cause of action for recovery due to a personal injury resulting from intentional acts by the defendant’s employees.

Defendant argues that it should be permitted by the exception of no cause of action to penetrate the plaintiff’s general allegation of intent to demonstrate that plaintiff’s injuries did not in fact result from an intentional act. This is the function of a motion for summary judgment, however, and not that of an exception of no cause of action. See La.C.C.P. art. 966. As Judge, later Justice, Cardozo stated: “The very object of a motion for summary judgment is to separate what is formal or pretended in denial or averment from what is genuine and substantial, so that only the latter may subject a suitor to the burden of a trial.” Richard v. Credit Suisse, 242 N.Y. 346, 152 N.E. 110 (1926). To attain this end, art. 966 permits a party to pierce the allegations of fact in the pleadings and to obtain relief by summary judgment where facts set forth in detail in affidavits, depositions, answers to interrogatories, and admissions omissions on file show that there are no genuine issues of material fact to be tried. See 6 Moore’s Federal Practice 56.04[1].

Defendant finally argues that, since the court of appeal held in a prior appeal in this case that the plaintiff’s petition failed to state a cause of action for lack of allegation of intentional injury, the law of the case rule prevents the plaintiff from raising the same issue again. The “law of the case” rule is merely a court practice usually applied at the appellate level in regard to parties who have had the identical issue presented and decided previously by that appellate court in an earlier appellate proceeding in the same case. Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972). The law of the case rule cannot supplant the Code of Civil Procedure provision which clearly affords the plaintiff a right to remove the objection of a successful peremptory exception' by amendment of the petition. La.C.C.P. art. 934. Since plaintiff has amended his petition in accordance with art. 934, the law of the case rule cannot be invoked.

Out of caution, we note that this opinion does not in any way change the plaintiff’s burden of proof in prosecuting his intentional tort cause of action. In order to succeed, he must still prove that the person who acted either (1) consciously desired the physical results of his act or (2) knew that that result was substantially certain to follow from his conduct. Bazley v. Tortorich, supra. It is only in pleading his cause of action that La.C.C.P. art. 856 assists him by providing that he may allege intent generally.

For the reasons assigned, the judgment of the court of appeal, 430 So.2d 1068, is affirmed.

AFFIRMED.

MARCUS, J., dissents.

WATSON, J., dissents and assigns reasons.

WATSON, Justice,

dissenting.

While summary judgment is the better vehicle on which to consider the “intentional act” variety of employees’ tort claims, there is a category of cases where the issue may be resolved on an exception of no cause of action. The present case is one of those, because the allegations in the petition and the various amended petitions simply do not allege intentional acts; the substance of plaintiffs’ petition and amended petitions, even as skillfully and artfully drawn as they are, is that the courts are urged to believe that the defendants intended to blow up the plant. Since such a conclusion is patently absurd, the petition does not state a cause of action.

Therefore, I respectfully dissent.


text:
    Peter S. FALLO v. TUBOSCOPE INSPECTION, et al.
    No. 83-C-1517.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
    Rehearing Denied Feb. 15, 1984.
    Brad G. Theard, Young & Richaud, New Orleans, for applicant.
    Thomas L. Gaudry, Jr., Pastorek & Gau-dry, Gretna, Joel P. Loeffelholz, New Orleans, for respondents.
   DENNIS, Justice.

This is a personal injury suit by an employee against his employer. The trial court granted the employer’s summary judgment because the pleadings and deposition on file show there is no genuine issue as to a material fact and that because the employee’s injury did not result from an intentional act of his co-employee, his exclusive remedy is for worker’s compensation. The court of appeal reversed suggesting that the legislature in La.R.S. 23:1032 by authorizing an employee to recover for personal injuries resulting from a co-employee’s intentional tort also intended to permit such recovery for injuries caused by an act of a co-employee which “he should have known” would produce the harmful consequences. 435 So.2d 1033. This was clear error. In order to come within the exception to the general rule that he may recover only worker’s compensation from his employer for a work related injury, the. employee must prove that the co-employee tortfeasor, when he acted, either consciously desired the physical result of his act or knew that that result was substantially certain to follow from his conduct. Bazley v. Tortorich, 397 So.2d 475 (La.1981). There is not the slightest suggestion in this record that any co-employee acted with an intent to injure the plaintiff, either by acting with a desire to harm him or by acting with the knowledge that his injury was substantially certain to result from the act. On the contrary, the pleadings and deposition demonstrate beyond any reasonable doubt that the accident occurred while two of the co-employees were attempting to rescue the plaintiff from his peril. Whether they may have acted negligently in this regard is not a genuine issue as to a material fact because the plaintiff employee is not legally entitled to recover damages from his employer because of the careless act of his co-employee. Accordingly, the judgment of the court of appeal is reversed, and the summary judgment of the trial court is reinstated.

REVERSED; TRIAL COURT JUDGMENT REINSTATED.


text:
    STATE of Louisiana v. Eugene TOBIAS and John Wayne Simmons.
    No. 83-K-2541.
    Supreme Court of Louisiana.
    Jan. 16, 1984.
   In Re Eugene Tobias and John Wayne Simmons, applying for Writ of Certiorari or Review to the Fourth Circuit Court of Appeal, Number KA-0813, from Criminal District Court, Parish of Orleans, Number 286-384.

Case Below: 441 So.2d 400.

Granted. (See Order)

Additional briefing requested on sufficiency of evidence as to Tobias.

ORDER

And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to-wit — “It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in duplicate of the case; and that counsel for all parties be notified.”

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, at the City of New Orleans, the record in duplicate of the above entitled case.


author: LEMMON, Justice,

text:
    William H. “Billy” SCOGGINS v. Cecil JONES et al.
    No. 84-C-0044.
    Supreme Court of Louisiana.
    Jan. 18, 1984.
   In Re William H. “Billy” Scoggins, applying for writ of Certiorari and/or Review to the Second Circuit Court of Appeal, Number 16,172-CA; Fifth Judicial District Court, Parish of West Carroll, Number 17,-338.

Case Below: 442 So.2d 1202.

Denied. The result is correct.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting from denial of certiorari.

The “but for” standard of proof in election cases is unreasonable. In enacting the election code, the Legislature probably intended to change the standard, but in any event this court should do so. I would grant certiorari for that purpose.


author: DENNIS, J.,

text:
    STATE of Louisiana ex rel. Tyrone LINDSEY v. Ross MAGGIO, Warden Louisiana State Penitentiary at Angola, Louisiana.
    No. 84-KP-0116.
    Supreme Court of Louisiana.
    Jan. 18, 1984.
   In Re: TYRONE LINDSEY, applying for Writ of Review and Stay Order, to the Twenty-Fourth Judicial District Court, Parish of Jefferson, Number 80-220.

Denied.

DENNIS, J.,

concurs in denying the petitioner’s application for stay of execution and for writs. Petitioner’s supplemental application fails to establish good cause to stay the execution for consideration of his Brady claim. The allegations of fact do not constitute grounds for a new trial because they fail to show the names of the witnesses who will testify and that they are not beyond process of the court or otherwise unavailable. C.Cr.P. article 854.


author: CALOGERO, J., LEMMON, J.,

text:
    STATE of Louisiana, ex rel. Robert L. THIBODEAUX v. Hon. Miriam G. WALTZER, Judge, Criminal District Court, Section “A”, Parish of Orleans, New Orleans, Louisiana.
    No. 83-KH-0815.
    Supreme Court of Louisiana.
    Jan. 27, 1984.
    Reconsideration Granted March 9, 1984.
   In Re: ROBERT L. THIBODEAUX applying for writ of Certiorari and review, Parish of Orleans, Number 260-072, Criminal-District Court.

Denied.

CALOGERO, J.,

concurs. Even applying State v. Sherer, 411 So.2d 1050 (La.1982), there is no practical difference to relator between the sentences imposed and those to which Sherer suggests he is entitled. Furthermore, the Sherer rule is questionable.

LEMMON, J.,

concurs in the denial for the reasons stated by Justice Calogero. However, the Sherer decision is wrong and should be overruled.

WATSON, J., would grant the writ.


author: DOUCET, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Kenneth GUIN, Defendant-Appellant.
    No. CR83-133.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.

      Richard V. Burnes, Alexandria, for defendant-appellant.
    Leonard K. Knapp, Jr., Dist. Atty., and Robert R. Bryant, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   DOUCET, Judge.

On November 17, 1982, the defendant, Kenneth Guin, was convicted by a twelve-person jury of attempted second degree murder, in violation of LSA-R.S. 14:27 and 14:30.1, and aggravated rape, in violation of LSA-R.S. 14:42. On December 9, 1982, he was sentenced to serve fifty (50) years at hard labor for the attempted second degree murder conviction, and sentenced to life imprisonment without benefit of probation, parole or suspension of sentence for the aggravated rape conviction. Defendant appeals.

Ms. Barbara Joe Jacob, a 20 year old single girl, shared an apartment with her brother in Westlake, La. The defendant, Kenneth Guin, known to most of his friends as “Bear”, was co-worker of Ms. Jacob. He also happened to live nearby her apartment in Westlake. As a payroll clerk for the company, Ms. Jacob was acquainted with the defendant, “Bear”. She testified that she had hired him into the company and saw him two to three times a week. She 'admitted that on numerous occasions he had asked her for a date, but she had always turned him down.

On or about April 16, 1982, Ms. Jacob was at her apartment, when, at about 2:00 P.M., the defendant came by. He asked the victim if she would take him to a nearby location in Moss Bluff so that he could pick up his car. At first Ms. .Jacob was hesitant, as she had plans for the afternoon, but the defendant persisted and she agreed.

After entering the Moss Bluff area, the defendant directed Ms. Jacob to turn down a dirt road. After traveling along this road for a short distance, the defendant pulled out a knife and forced the car into the roadside ditch. He then reached over and dragged the victim, by the hair, across the console and out the passenger side of the vehicle. While staying close behind, the defendant ordered her to walk into the wooded area, occasionally shoving her on the back. Upon entering a secluded area where the grass and weeds were matted down, the defendant stripped the victim of all her clothing, took off his shirt and pushed her on the ground. The victim, now naked and laying on the defendant’s shirt, was sexually abused and raped by the defendant. After the sexual act, the defendant strangled the victim into unconsciousness. When she regained consciousness, the defendant was not around. Ms. Jacob’s neck was severely lacerated with twenty (20) to thirty (30) cuts across the throat. Naked and bleeding, the victim found her way to the roadway and was discovered by a deputy sheriff. The police, based upon the description and name given by the victim, subsequently arrested the defendant, Kenneth Guin.

The Grand Jury of Calcasieu Parish returned a two count indictment against the defendant charging him with the crimes of aggravated rape in violation of LSA-R.S. 14:42 and attempted second degree murder in violation of LSA-R.S. 14:27 and 14:30.1. The defendant was found guilty on November 17, 1982, on both counts charged in the indictment. On December 9,1982, the defendant was sentenced to life in prison without benefit of probation, parole or suspension of sentence for the aggravated rape conviction. He was sentenced to fifty (50) years at hard labor on the attempted second degree murder conviction. Sentences were to run concurrently. It is from these convictions the defendant has, upon this appeal, perfected eleven (11) assignments of error.

ASSIGNMENTS OF ERROR

1. The trial court erred in permitting the State to amend the grand jury indictment, over the objection of the defendant, so as to change offenses charged by amending the date from March 16, 1982, to April 16, 1982.
2. The trial court erred in examining prospective jurors as to their general qualifications out of the presence of the defendant and over his objection.
8. The trial court erred in conducting a voir dire examination of the prospective ‘ jurors in private bench conference prior to the defendant having been brought into the courtroom and out of the hearing of counsel.
4. The trial court erred in failing to require the sheriff to account for service or attempted service on absent and unexcused petit jury veniremen.
5. The trial court erred in denying defendant’s request for attachment of absent and unexcused petit jury veniremen as required by LSA-C.Cr.P. art. 783.
11. The trial court erred in overruling the defendant’s motion for a mistrial. 14. The trial court erred in permitting a hearsay statement that the alleged victim identified the defendant’s clothing.
16. The trial court erred in permitting the prosecutor and a State witness to improperly identify physical evidence so as to give an impression as to where it was located.
17. The trial court erred in refusing the defendant’s motion for mistrial on the ground that the court had made a comment on the evidence.
18. The trial court erred in overruling the defendant’s objection to the inclusion of the words “or to inflict great bodily harm” in the charge which the court gave defining attempted second degree murder.
19. The trial court erred in refusing to charge the jury that a unanimous verdict is required to convict the defendant.

ASSIGNMENT OF ERROR NO. 1

The defendant argues that the trial court erred by allowing the State to amend the grand jury indictment as to the date of the offenses charged. The original indictment mistakenly indicated the offenses occurred on March 16, 1982, where it should have read that the offenses occurred on or about April 16, 1982, as it was amended.

On November 9, 1982, before Judge L.E. Hawsey, Jr., the State moved to amend the indictment, as to the date the alleged offenses were committed, from March 16, 1982, to April 16, 1982. Counsel for the defendant argued that the amendment was improper and the court denied the amendment. On November 12, 1982, the State was allowed to argue in favor of the amendment on a rehearing. Based on the arguments heard from both the State and the defendant, the court ruled to allow the amendment showing the date of April 16, 1982, as the date of the occurrence of the alleged offenses.

It is clear that the district attorney has the power and authority to amend grand jury indictments, both as to amendments of form and as to amendments of substance. State v. Sheppard, 350 So.2d 615 (La.1977); State v. Bluain, 315 So.2d 749 (La.1975). This power is controlled by LSA-C.Cr.P. art. 487. This article indicates that an amendment as to form may be done at any time and that an amendment as to substance is proper if done prior to commencement of trial. Based on this statutory authority and the facts of this instance, it makes no difference whether the amendment was as to form or substance, since both would be considered timely and properly amended under article 487.

In any event, the date and time of the commission of an offense need not be alleged in the indictment, unless the date or time is essential to the offense. (See LSA-C.Cr.P. art. 468). A mistake respecting the date on which an offense occurred has been held to be a defect of form when not essential to the offense. State v. Lawson, 393 So.2d 1260 (La.1981); State v. Dye, 384 So.2d 420 (La.1980); State v. Drew, 360 So.2d 500 (La.1978). The dates are not essential to the offenses charged here. Therefore, based on LSA-C.Cr.P. art. 487, supra, the amendment could have been made at any time. The defendant’s assignment of error No. 1 is without merit.

ASSIGNMENT OF ERROR NOS. 2 AND 3

Both of these assignments concern the trial court’s examination of prospective jurors and can be dealt with together.

On the morning of November 15, 1982, court was convened with Judge W. Ellis Bond presiding. Roll was called to determine which of the petit jury veniremen were present and which were absent. Pri- or to the State calling a particular case, the judge informed the members of the venire of their purpose and the basic qualifications they must have. He then informed them that there are certain instances where a hardship may warrant the excusing of a member of the venire from jury service. Those members of the venire not qualified to be jurors or those having a hárdship were requested to approach the bench, one at a time, so that the judge could evaluate their situation. Defense counsel then objected and argued that the defendant should be present when the judge is considering excusing potential jurors. The defendant bases his argument on LSA-C. Cr.P. art. 831 which states in pertinent part:

A defendant charged with a felony shall be present:
(3) At the calling, examination, challenging, impanelling, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror.
(5) In trials by jury, at all proceedings when the jury is present, and in trials without a jury, at all times when evidence is being adduced.

However, the Louisiana Supreme Court has stated on numerous occasions that the trial court is authorized to excuse a member of the petit jury venire at any time prior to the time he is sworn as a juror to try a particular case. LSA-C.Cr.P. art. 783 State v. Brown, 414 So.2d 726 (La.1982). A defendant need not be present when the trial judge excuses prospective jurors before his case is called for trial. State v. Lowdins, 412 So.2d 1349 (La.1982); State v. Meriwether, 412 So.2d 558 (La.1982); State v. Cass , 356 So.2d 936 (La.1977); State v. Sheppard, 350 So.2d 615 (La.1977); State v. Williams, 258 La. 801, 248 So.2d 295 (1971). A juror is not “called” or “examined” within the meaning of LSA-C.Cr.P. art. 831(3) until he is called for examination in the trial of that particular defendant. The defendant need not be present when the trial judge excuses prospective jurors before his own case is called for trial. Lowdins supra; Meriwether, supra; Williams, supra; State v. McGuire, 254 La. 560, 225 So.2d 215 (1969).

In this case, the roll was called for the jurors and they were afforded the opportunity to submit special reasons for being excused. In accordance with the aforementioned jurisprudence, the trial court acted properly. The potential jurors were not yet sworn to a particular case and, therefore, could be excused from the petit jury venire by the trial court at anytime prior to such swearing. Accordingly, assignments Nos. 2 and 3 are without merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

In these assignments the defendant argues that the trial court erred by failing to account for, and attach, the absent and unexcused petit jury veniremen.

On the issue of requiring the sheriff to account for service or attempted service, the judge gave an explanation to defense counsel as to why petit jury veniremen were absent. Also, as indicated in the trial court’s minutes, there was an accounting by the sheriff of who was and who was not served.

In addressing whether or not the trial court erred in denying the defendants request for attachment of the absent and unexcused petit jury veniremen, one should note the controlling language of LSA-C. Cr.P. art. 783, supra. The article indicates that the court may order an attachment of absent and unexcused petit jury veniremen, thus the decision is left to the discretion of the trial court. The jurisprudence construing article 783 is well established that the defendant in a criminal trial has no right to demand attachment of absent jurors when a sufficient number to form a panel is present. State v. Morgan, 315 So.2d 632 (La.1975); State v. Witherspoon, 292 So.2d 499 (La.1974); State v. Jugger, 217 La. 687, 47 So.2d 46 (1950). There were sufficient persons to form the jury panel in this case. The defendant has failed to allege or show any evidence of material prejudice resulting from the failure to attach the absent veniremen. Assignments Nos. 4 and 5 are without merit.

ASSIGNMENT OF ERROR NO. 11

In this assignment the defendant argues that the State posed a “leading question” to the victim. The nature of the question was such that it referred to one of the critical elements necessary for any rape conviction, that being “penetration”. The defendant feels a mistrial should have been granted based on the following colloquy:

Q: Then what happened?
A: And, then he started — He put — He took his fingers and he was pushing his penis into me.
Q: Had he taken his clothes off at any time?
A: Well, the only time he took off was when he took off his shirt. But, I had heard his pants unzip when I was on the ground.
Q: And, he penetrated you at this time?
A: Yes, he did.

The trial court sustained the objection and asked that the assistant district attorney rephrase his question.

A leading question is one which suggests to the witness the answer they are to deliver; ordinarily, such questions are prohibited when posed to one’s own witness unless the witness is hostile or unwilling. State v. Prestridge, 399 So.2d 564 (La.1981); State v. Carthan, 377 So.2d 308 (La.1979).

In this instance the question does appear to be leading. However, as pointed out by the State, it merely restates what the witness’ earlier testimony had been. Though it may not have been proper, it certainly was not grounds for a mistrial. LSA-C. Cr.P. art. 775 provides in part:

A mistrial may be ordered, and in a jury ease the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by article 770 or 771.

A mistrial is a drastic remedy and except in instances in which it is mandatory, is only warranted if substantial prejudice results which would deprive the defendant of a fair trial. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Tribbet, 415 So.2d 182 (La.1982). The determination of prejudice lies within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Tribbet, supra; State v. Douglas, 389 So.2d 1263 (La.1980).

Leading questions are not the type of prosecutorial error which diminish the reliability of a jury’s verdict. Ms. Jacob’s testimony, as well as the medical evidence and testimony, clearly show sexual penetration. Only when there is clear abuse of discretion which prejudices defendant’s rights will a conviction be reversed because of leading questions. State v. Felde, 422 So.2d 370 (La.1982); State v. Vanderhoff, 415 So.2d 190 (La.1982). The defendant has failed to show any prejudicial effect the statement had on his defense. Although counsel should not be permitted to mold the witness’ testimony, a verdict should not be reversed in the absence of a clear abuse calculated to prejudice the accused’s rights. State v. Jackson, 419 So.2d 425 (La.1982); State v. Swift, 363 So.2d 499 (La.1978). This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 14

In this assignment the defendant argues that a hearsay statement was improperly allowed into evidence. During the course of the prosecution’s case Deputy Sheriff Babin was questioned as follows:

Q: Now, were you involved any further in this particular case, sir, after that particular date?
A: Yes, sir.
Q: How so?
A: The victim, after her stay in the hospital, she was asked to come to our office. We showed her the clothing which you just showed me which she I.D.’d...

The defendant objected, arguing that the statement was hearsay. The trial judge overruled the objection, however, the record reveals that Deputy Babin did not affirmatively testify as to the identification after the objection was interposed.

Generally, hearsay is defined as an out-of-court statement introduced to prove the truth of its content. State v. Chaney and State v. Herman, 423 So.2d 1092 (La.1982); State v. Spell, 399 So.2d 551 (La.1981). LSA-R.S. 15:434 states the general rule that hearsay evidence is inadmissible. However, it is recognized that when inadmissible hearsay is improperly introduced at trial, which is merely cumulative of other properly introduced testimony, it is harmless error. State v. Parker, 425 So.2d 683 (La.1982); State v. Vanderhoff, supra; State v. Spell, supra.

The victim, Ms. Jacob, had previously identified every article of clothing referred to by the deputy in his statement. It is clear that the statement was merely cumulative in showing that the victim recognized certain articles worn by the defendant. There was no prejudice to the defendant.

ASSIGNMENT OF ERROR NO. 16

The defendant objected to the State’s questioning of an expert witness as to the markings on an envelope located in the sex kit submitted to the expert for analysis. The envelope in question contained a hair of human origin recovered from the cervix of the victim and was so marked on the envelope.

The defendant argues that the testimony sought was not within the personal knowledge of the witness and not within his expertise. The court overruled the objection, however, the response concerning the markings, as indicated on the envelope, was never made. Without responding to what was marked on the envelope there is no alleged error to analyze. This assignment has no merit.

ASSIGNMENT OF ERROR NO. 17

During the prosecutor’s direct examination of an expert witness an objection was made as to his testifying on matters not within his personal knowledge. This is the subject of assignment of error No. 16, supra. During the course of the objection, the following colloquy occurred:

Q: All I want to know is where this particular item came from, not any opinions of yours?
A: The envelope was labeled hair...
MR. BURNES: ... Excuse me, Your Honor. Your Honor, that’s the objection that I made. I don’t have any objection to this man’s expertise. I stipulated to it. I know him. I’ve examined him in cases before. But, he’s not testifying now identifying the object. He’s trying to say what someone else observed about the object. Not what he observed, but what someone else wrote on the ..
THE COURT: ... With the testimony of the doctor in connection with the preparation of the crime kit...
MR. BURNES: ... I don’t want to help...
THE COURT: ... He may...
MR. BURNES: ... the State try their case, Your Honor.
THE COURT: But, I must consider all prior testimony in connection with this objection also. I’ll overrule the objection.
MR. BURNES: Your Honor, I’ll respectfully object. And, I think that the statement Your Honor just made about the doctor’s testimony constitutes a comment on the evidence in the presence of the jury. I respectfully object to it and I move for a mis-trial.
THE COURT: I don’t think I commented on what the doctor testified to, Mr. Burnes. I attempted to carefully refrain from doing so. Your motion is denied.

The defendant feels the trial court erred in denying his motion for a mistrial on the grounds that the court had made a comment on the evidence. The defendant feels that LSA-C.Cr.P. arts. 772 and 806 are applicable to the situation at hand. LSA-C.Cr.P. art. 772 prohibits any comment upon the evidence in the jury’s presence; however, a ruling on the admissibility of evidence and the remarks by a trial judge giving reasons for his ruling on objections are not objectional as comments on the case unless such remarks are unfair or prejudicial. State v. Edwards, 420 So.2d 663 (La.1982); State v. Williams, 397 So.2d 1287 (La.1981); State v. Toomer, 395 So.2d 1320 (La.1981); State v. Quincy, 363 So.2d 647 (La.1978). The trial judge did not comment on, or recapitulate evidence, nor repeat testimony of a witness. Nor did he give an opinion of what had been proved, not proved, or refuted. The remarks were not comments on the evidence; however, even if they were, defendant has shown no unfairness or prejudice in these expressions. Assignment No. 17 is without merit.

ASSIGNMENT OF ERROR NO. 18

The defendant alleges the trial court erred in including in the jury charge the words “or to inflict great bodily harm” when defining attempted second degree murder. The pertinent part of the charge reads:

I will now instruct you on count one, attempted second degree murder. 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. An attempt is defined as follows: A person who has a specific intent to commit a crime and who does an act for the purpose of and tending directly toward accomplishing his object is guilty of an attempt to commit the crime intended.

There is no dispute that the words “or to inflict great bodily harm” is part of the second degree murder statute. The charge here is that of attempted second degree murder and deals with the specific intent as defined in the attempt statute. When the attempt statute is invoked and the charge is attempted second degree murder, it is required that the person have the specific intent to kill a human being. Having specific intent to inflict great bodily harm and then only inflicting great bodily harm cannot be construed as attempted second degree murder.

The defendant relies heavily on the case of State v. Butler, 322 So.2d 189 (La.1975) wherein the Louisiana Supreme Court reiterated that specific intent to kill is an essential element of attempted murder.

The State claims Butler is distinguishable on its facts. In Butler, the evidence the jury found credible proved an aggravated battery not an attempted murder. The evidence indicated that there was not a specific intent to kill. Also, in the closing arguments the prosecutor argued that the specific intent to inflict great bodily injury was sufficient for a conviction of attempted murder. The defendant was not permitted to argue in his closing arguments that a specific intent to kill was required to convict of attempted murder. While it is admitted that the inclusion of the term “or to inflict great bodily harm” was improper (and included at the State’s request), the State contends the circumstances of the case do not require a reversal.

With reluctance, we are obliged to agree with argument of defense counsel. The reason for reservation is that the evidence is so overwhelming as to the specific intent of the defendant to kill and his incarceration will not be affected by resolution of this issue. Nevertheless, the law is clear and well established that attempted murder requires specific intent to kill; specific intent to cause great bodily harm will not suffice. State v. Butler, supra; State v. Strother, 362 So.2d 508 (La.1978). In the present case, as in Butler, defense counsel objected to the charge as being improper, nevertheless, the improper instruction was maintained. According to Butler, the theory of harmless error can not permit affirmance of a conviction which results from such a substantial error of law. The reason for the aforesaid rule was set forth in Butler as follows:

Fundamental to American law are the principles here applicable. The state through its legislature has defined the conduct constituting particular offenses, with particular consequences (sentences). To secure conviction for any such offenses, the state through its prosecutors must charge the accused with a particular crime or crimes and prove the accused’s guilt of the legislatively-defined crime(s) beyond a reasonable doubt. The jury with proper instructions of law is the exclusive arbiter of the innocence or guilt of the crime charged. The courts are constitutionally bound to assure that those accused before our courts are tried in accordance with law and to reverse, where substantial error of law is committed.
To suggest that no substantial error of law occurs, where the jury was in effect instructed that a person guilty of aggravated battery can be convicted of attempted murder although he has no specific intent to kill by the battery, is to suggest an untrammelled discretion of prosecutor, jury, and court to punish an accused for offensive conduct. To the contrary, the legislature has authorized prosecutions for particular crimes. In a government of law and of constitutionally and legislatively limited powers, neither prosecutor, jury, nor court are empowered to sustain a conviction for conduct not punishable by the crime for which the accused stands charged. 322 So.2d at 193-194.

That the defendant’s incarceration will not be altered by adhering to Butler appears to be of no consequence insofar as our review is concerned. See: State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971). The defendant is entitled to attack the invalid conviction even though it is concurrent with or consecutive to a valid sentence for which defendant will remain confined inasmuch as, in the event of retrial, it is of great advantage to the prosecution and defense alike to marshall their respective cases while the evidence is fresh and the witnesses are available, id. See also: State ex rel. Bec-nel v. Blackburn, 410 So.2d 1015 (La.1982). The trial court’s error in instructing the jury requires the defendant’s conviction for this crime be reversed.

ASSIGNMENT OF ERROR NO. 19

The defendant argues that the trial court erred in charging the twelve-person jury that: “Ten of you must agree upon a verdict”. The defendant feels that a non-unanimous verdict offends due process under the Fourteenth Amendment, and impairs the defendant’s right to a “fair trial by jury” as is guaranteed by the Sixth and Fourteenth Amendments.

Article I, Section 17 of the Louisiana Constitution states in pertinent part that:

“... A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict...”

See, also LSA-C.Cr.P. art. 782.

The United States Supreme Court in Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); and Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), has upheld Louisiana’s less than unanimous verdicts as provided in Louisiana Constitution art. I, § 17 and LSA-C.Cr.P. art. 772. Therefore, this assignment is without merit. CONCLUSION

For the reasons assigned hereinabove, the defendant’s aggravated rape conviction and sentence to life imprisonment without benefit of probation, parole or suspension of sentence is affirmed. His conviction for attempted second degree murder is reversed and the case is remanded for re-trial in accordance with law.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

      . As the payroll clerk, Ms. Jacob’s duties included processing new employees through their introductory paper work.

      . Rape is defined in LSA-R.S. 14:41 as follows:
      Rape is the act of anal or vaginal sexual intercourse with a male or female person who is not the spouse of the offender, committed without the person’s lawful consent.
      Emission is not necessary: and any sexual penetration, vaginal or anal, however slight is sufficient to complete the crime.
      For the purposes of this Chapter, a person shall not be considered to be a spouse if a judgment of separation from bed and board has been rendered.

      . LSA-R.S. 14:42 provides:
      Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
      (1) Where the victim resists the act to the utmost, but whose resistance is overcome by force; or
      (2) Where the victim.is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution; or
      (3) Where the victim is prevented from resisting the act because the offender is armed with a dangerous weapon; or
      (4) Where the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.
      Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

      . LSA-R.S. 14:27 provides:
      A.Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
      B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.
      C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.
      D. Whoever attempts to commit any crime shall be punished as follows:
      (1) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not more than fifty years;
      (2) If the offense so attempted is .theft or receiving stolen things, and is not punishable as a felony, he shall be fined not more than two hundred dollars, or imprisoned for not more than six months, or both. If the offense so attempted is theft or receiving stolen things, and is punishable as a felony, he shall be fined not more than two hundred dollars, or imprisoned not more than one year, or both;
      (3) In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.

      .LSA-R.S. 14:30.1 provides:
      Second degree murder is the killing of a human being:
      (1) When the offender has a specific intent to kill or to inflict great bodily harm; or
      (2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simply robbery, even though he has no intent to kill or to inflict great bodily harm.
      Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

      . Originally twenty-one (21) assignments of error were lodged with the Court. The defendant abandons ten assignments and argues the remaining eleven.

      . A copy of the indictment is attached hereto for reference as Appendix No. I.

      .LSA-C.Cr.P. art. 487 provides in its entirety:
      A. An indictment that charges an offense in accordance with the provisions of this Title shall not be invalid or insufficient because of any defect or imperfection in, or omission of, any matter of form only, or because of any miswriting, misspelling, or improper English, or because of the use of any sign, symbol, figure, or abbreviation, or because any similar defect, imperfection, omission, or uncertainty exists therein. The court may at any time cause the indictment to be amended in respect to any such formal defect, imperfection, omission, or uncertainty.
      Before the trial begins the court may order an indictment amended with respect to a defect of substance. After the trial begins a mistrial shall be ordered on the ground of a defect of substance.
      B. Nothing contained herein shall be construed to prohibit the defendant from entering a plea of guilty to a crime nonresponsive to the original indictment when such a plea is acceptable to the district attorney, and in such case, the district attorney shall not be required to file a new indictment to charge the crime to which the plea is offered.

      . LSA-C.Cr.P. art. 468 provides in its entirety:
      The date or time of the commission of the offense need not be alleged in the indictment, unless the date or time is essential to the offense.
      If the date or time is not essential to the offense, an indictment shall not be held insufficient if it does not state the proper date or time, or if it states the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day.
      All allegations of the indictment and bill of particulars shall be considered as referring to the same date or time, unless otherwise stated.

      . LSA-C.Cr.P. art. 401 sets forth the general qualifications of jurors as follows:
      In order to qualify to serve as a juror, a person must:
      (1) Be a citizen of the United States and of this state who has resided within the parish in which he is to serve as a juror for at least one year immediately preceding his jury service;
      (2) Be at least eighteen years of age;
      (3) Be able to read, write, and speak the English language;

        (4) Not be under interdiction, or incapable of serving as a juror because of a mental or physical infirmity; and
      (5) Not be under indictment for a felony, nor have been convicted of a felony for which he has not been pardoned.

      . LSA-C.Cr.P. art. 831 provides in its entirety that:
      A defendant charged with a felony shall be present:
      (1) At arraignment;
      (2) When a plea of guilty, not guilty, or not guilty and not guilty by reason of insanity is made;
      (3) At the calling, examination, challenging, impanelling, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror;
      (4) At all times during the trial when the court is determining and ruling on the admissibility of evidence;
      (5) In trials by jury, at all proceedings when the jury is present, and in trials without a jury, at all times when evidence is being adduced; and
      (6) At the rendition of the verdict or judgment, unless he voluntarily absents himself.

      . LSA-C.Cr.P. art. 783 provides in its entirety that:
      A. The court may excuse a member of the petit jury venire at any time prior to the time he is sworn as a juror to try a particular case. The panel shall be selected from the remaining members of the petit jury venire. The court, either on its own motion, or that of the state or a defendant, may order the attachment of an absent and unexcused petit jury venireman.
      B. If jury service, whether criminal or civil, would result in undue hardship or extreme inconvenience, the district court may excuse a person from such service either prior to or after his selection for the general venire, jury pool, or jury wheel. The court may take such action on its own initiative or on recommendation of an official or employee designated by the court.
      C. No person or group of persons shall be automatically excused.
      D. In the event a person is excused because jury service would result in undue hardship or extreme inconvenience, the court may order that person’s name be placed again in the general venire or in a central jury pool.

       Reversed on other grounds.

      . The record, as transcribed, indicates on Page 192 that the victim did not respond to the district attorney's question but on Page 330, reiterating the same testimony, there is a response.

      . LSA-C.Cr.P. art. 775 provides in its entirety that:
      A mistrial may be ordered, and in a jury case the jury dismissed, when:
      (1) The defendant consents thereto;
      (2) The jury is unable to agree upon a verdict;
      (3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
      (4) The court finds that the defendant does not have the mental capacity to proceed;

        (5) It is physically impossible to proceed with the trial in conformity with law; or
      (6) False statements of a juror on voir dire prevent a fair trial.
      Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.
      A mistrial shall be ordered, and in a jury case the jury dismissed, when the state and the defendant jointly move for a mistrial.

      . LSA-C.Cr.P. art. 770 provides in its entirety that:
      Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      (1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      (3) The failure of the defendant to testify in his own defense; or
      (4) The refusal of the judge to direct a verdict.
      An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

      . LSA-C.Cr.P. art. 771 provides in its entirety that:
      In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
      (1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
      (2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
      In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

      .LSA-C.Cr.P. art. 806 virtually tracks the language of article 772 and provides:
      The court shall not charge the jury concerning the facts of the case and shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.

      . See LSA-R.S. 14:30.1, supra.

      . See LSA-R.S. 14:27, supra.

      . LSA-C.Cr.P. art. 782 is taken substantially from the constitutional source and tracks the language as follows:
      A. Cases in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Cases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict.
      B. Trial by jury may be knowingly and intelligently waived by the defendant except in capital cases.


author: CHEHARDY, Judge.

text:
    Gloria Landry MCCLELLAND v. Bobby CLAY.
    No. 83-CA-439.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.
    Rehearing Denied Feb. 17, 1984.
    Ronald J. Landry, LaPlace, for plaintiff-appellee.
    Daniel E. Becnel, Jr., Reserve, for defendant-appellant.
    Before BOUTALL, CHEHARDY and GAUDIN, JJ.
   CHEHARDY, Judge.

This is a suit on a note for $5,266.06 executed by the late Isaac Clay in favor of his concubine Gloria Landry McClelland. Mrs. McClelland instituted this suit against decedent’s brother Joseph Bobby Clay, claiming he unconditionally accepted his brother’s succession, and therefore is liable on the note.

Following trial, judgment was granted in favor of plaintiff. Defendant has appealed.

The record reflects the following facts:

After the death of his brother Isaac, defendant signed an agreement with the undertaker to pay the funeral expenses.

Defendant paid these expenses by withdrawing funds from a bank account belonging to his late parents which was used as a fund whereby various family members would withdraw funds as needed and repay the money at a later date. The fund operated as an interest-free loan for the family when necessary.

Several days after the death defendant found out that his brother had a $20,000 life insurance policy at his place of employment and that defendant was the named beneficiary. He collected the proceeds of the policy and repaid the family fund for the money he had withdrawn to pay the funeral expenses.

Mrs. McClelland had anticipated that she would be named beneficiary. When defendant failed to give her any of the proceeds she instituted this suit on the note.

In finding for the plaintiff the trial judge held that acceptance of the proceeds of the life insurance policy and payment of the funeral expenses out of a fund which belonged partially to the decedent constituted unconditional acceptance of the succession.

The trial judge recognized his error, and plaintiff now concedes that the proceeds of a life insurance policy form no part of the estate when the policy is made payable to a designated beneficiary. LSA-R.S. 22:647, 648, 649; Succession of Dumestre, 174 La. 482, 141 So. 35 (1932).

Neither are such proceeds liable for decedent’s debts, subject to community rights or to reduction or collation. Ticker v. Metropolitan Life Insurance Co., 11 Orl.App. 59 (1914).

However, the trial court refused to grant a new trial because of payment of the funeral expenses from the family fund, which he found constituted unconditional acceptance of the succession.

The acceptance of a succession is a question of fact, as clearly disclosed by Article 988 of the revised Civil Code:

“The simple acceptance may be either express or tacit.
“It is express, when the heir assumes the quality of heir in an unqualified manner, in some authentic or private instrument, or in some judicial proceeding.
“It is tacit, when some act is done by the heir, which necessarily supposes his intention to accept, and which he would have no right to do but in his quality of heir.’ ”

There must be an intention to accept. LSA-C.C. art. 989. And Article 990 recites, “It is necessary that the intention should be united to the fact, or rather manifested by the fact, in order that the acceptance be inferred.”

The acceptance of a succession by heirs must appear in terms so clear as to leave no doubt regarding intention to accept under full responsibilities attaching to acceptance. Vuillemont v. Gonsulin, 134 So. 419 (La.App. 1st Cir.1931).

While the acceptance of a succession may be established against an heir by proof of payment of its debts by him, the payment of funeral expenses does not constitute acceptance.

C.C. art. 1001 provides:

“An act of piety or humanity towards one’s relations is not considered an acceptance; it is not therefore an acceptance to take care of the burial of the decease [deceased], or to pay the funeral expenses, even without protestation.”

The fact that defendant paid for the funeral expenses with money used by all of the family for emergencies does not imply to us a tacit acceptance of the succession. The funds belonged to the deceased parents and apparently no succession had ever been opened. It is also possible decedent himself may have used the fund and actually owed it money.

There is insufficient evidence in the record to indicate that defendant’s actions constituted an unconditional acceptance of his brother’s succession.

For the reasons assigned the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of defendant Joseph Bobby Clay and against plaintiff Gloria Landry McClelland dismissing her suit.

Cost in this court is to be paid by appel-lee.

REVERSED.


author: PER CURIAM.

text:
    LOUISIANA DISTRICT COUNCIL OF ASSEMBLY OF GOD, et al. v. VICTORY TEMPLE ASSEMBLY OF GOD, et al.
    Nos. 5-268 to 5-270.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.
    Rehearing Denied Feb. 17, 1984.
    Writ Denied April 23, 1984.

      J.B. Kiefer, Metairie, for defendants-appellants.
    Michael R. Fontham, New Orleans, Ralph R. Miller, Norco, for plaintiff s-appel-lees.
    Before BOUTALL, CHEHARDY and GAUDIN, JJ.
   RECONSIDERATION

PER CURIAM.

As per directive of the Louisiana Supreme Court, we had reconsidered this matter in light of LeBlanc v. Davis, 432 So.2d 239 (La.1983) and Flicker Community Church v. Hitchens, 419 So.2d 445 (La.1982).

In our initial opinion reported at 427 So.2d 662, we discussed the history of the Metairie church beginning in 1953. This history, along with the documents in evidence, shows a firm and long-standing hierarchical relationship between the local church and the Louisiana District Council, and we concluded that Ralph Adams had no authority, vested or assumed, to exercise control in the face of the Louisiana District Council’s attempt to reestablish its Metairie congregation.

As the Supreme Court of Louisiana pointed out in the Fluker congregation decision, the “neutral principles of law” approach to church property disputes “... has been employed in practice by this court and our courts of appeal with increasing frequency.” The courts are constitutionally empowered, the Supreme Court said, to adopt a “neutral principles” analysis involving consideration of deeds, statutes governing church property, charters, etc.' Neither the First Amendment to the United States Constitution nor the Constitution of the State of Louisiana requires courts to compulsory refrain from resolving church property disputes if church policy or doctrine is not at issue. Also, there are no statutory prohibitions.

Certain conditions, however, must be present to justify an intrusion by the courts. For example, there must be a clear organizational distinction between the local church and the hierarchy, as was the case in Fluker, there must be alleged fraud, collusion or bad faith or there must be some other compelling reason.

If the controversy is purely religious and does not concern property, courts should not become involved.

Here, the dispute centers around Adams and his efforts to establish himself as supervising pastor. Title to church property, real or otherwise, is not involved, as Adams concedes.

Accordingly, we are of the opinion that our initial decree is proper and should not be disturbed.

ORIGINAL OPINION REAFFIRMED.

      . See 434 So.2d 411 (La.1983).

      . Including deeds, church charters and church constitutions and bylaws.


author: GAUDIN, Judge.

text:
    Lazard GOLDBLUM (Lazard, Inc.) v. C. & C INVESTMENTS (Meditrust, Inc.,/Carolyn, Ltd.)
    Nos. 83-CA-359, 83-CA-459.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.
    Rehearing Denied Feb. 17, 1984.
    Writ Denied April 2, 1984.
    Daniel A. Post, Metairie and William M. Detweiler, New Orleans, for appellants.
    Harold J. Aronson, New Orleans, for ap-pellee.
    Lanny R. Zatzkis, New Orleans, for defendant-appellee.
    Before BOUTALL, GAUDIN and GRIS-BAUM, JJ.
   GAUDIN, Judge.

The primary issue on appeal in these consolidated proceedings is whether the district court judge erroneously dismissed a petition for eviction and possession of leased premises. We affirm.

The plaintiff in the first and main suit is C & C Investments, which originally leased (in 1972) the property at 3020 Severn Avenue in Metairie, Louisiana, from L.J. Aiavo-lasiti. In 1975, C & C Investments sublet the property to Lazard Goldblum, who in turn (in 1981) sublet to Laurand, Inc., which currently occupies these commercial premises.

C & C Investments sued Goldblum contending that Laurand had physically altered the leased site without C & C Investments’ prior written approval, as called for in the agreement between C & C Investments and Goldblum.

The second suit was filed by Goldblum against C & C Investments, asking for a declaratory judgment giving Goldblum the right to exercise his option and to renew the lease agreement between him and C & C Investments.

The trial judge:

(1) Dismissed C & C Investments petition for eviction and possession of premises, and

(2) Recognized Goldblum’s right to exercise his option and renew the lease agreement between him and C & C Investments.

C & C Investments’ position is that Goldblum breached this clause of the C & C Investments-to-Goldblum contract:

“Lessee is obligated not to make any additions or alteration whatever to the leased premises without written permission.”

After moving in, Laurand advised Gold-blum by letter of its plans to remove a wall and thereby connect the leased site to the adjacent area. The letter stated:

“... before any work is done ..., the plans ... will first be submitted to you and that all costs for the work will be paid for by us. It is further agreed that at the termination of our lease ..., your property will be replaced in its present condition at our expense.”

Goldblum gave conditional assent, pending submission of the plans and specifications. Although plans were not forwarded, Laurand went ahead with its alterations, opening a 12-foot wide passageway between the leased premises and 3000 Severn Avenue, thereby enlarging Laurand’s business area.

Subsequently, Aiavolasiti executed two affidavits, agreeing to the alterations and saying that he “... specifically holds C & C Investments and Mr. Goldblum harmless

Nonetheless, C & C Investments asked the district court to strictly enforce its agreement with Goldblum, contending that the contract was not ambiguous and that agreements should not be controverted by either the parties or the court.

No doubt there was a technical violation of the contract, as the premises had been structurally changed without C & C Investments’ written consent. However, voiding of lease agreements are not favored by the law, particularly for technical infringements. See Stoltz v. McConnell, 202 So.2d 451 (La.App.4th Cir.1967), Atkinson v. Richeson, 393 So.2d 801 (La.App. 2nd Cir.1981) and many other cases with similar holdings.

Both Dr. and Mrs. Chuck Cucchiara of C & C Investments admitted that they have not been hurt by the alterations.

The Supreme Court of Louisiana has stated that the right to dissolve a lease is subject to judicial control according to the circumstances of each case. Brewer v. Forest Gravel Co., 172 La. 828, 135 So. 372 (1931). Also, Baham v. Faust, 333 So.2d 261 (La.App. 1st Cir.1976) and Hebert v. Brasseaux, 399 So.2d 778 (La.App. 3rd Cir.1981).

Prom the Herbert opinion:

“... our courts, on the basis of equity, are vested with discretion under some circumstances to decline to grant a lessor cancellation of a lease although such right appears to be otherwise available to him.”

Here, C & C Investments proved a technical breach but could show no damages or threat to its legal position in the chain of leases leading from Aiavolasiti to Laurand.

Considering the particular facts and circumstances of this case, including Aiavo-lasiti’s hold harmless agreement, we cannot say that the trial judge erred in refusing to cancel the C & C Investments-to-Goldblum lease. The appealed-from judgments are affirmed, with C & C Investments to bear all costs.

AFFIRMED.

-/*w\ (O I KEY NUMBER SYSTEM)


text:
    STATE Of Louisiana, Plaintiff-Appellee, v. Aubrey L. HUDNALL, Defendant-Appellant.
    No. K83-405.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Writ Denied March 9, 1984.
    Norris Dale Jackson, Asst. Dist. Atty., Jena, for defendant-appellant.
    Patrick L. Durusau, Jena, for plaintiff-appellee.
    Before CUTRER, DOUCET and LA-BORDE, JJ.
   DOUCET, Judge.

Defendant, Aubrey L. Hudnall, was charged by bills of information with two counts of obscenity, violations of LSA-R.S. 14:106(A)(1). On April 6, 1983, the trial court, sustained defendant’s motion to quash the bills of information. The State requested review of that ruling. The writ was granted. The State assigns one assignment of error:

The trial court erred in granting the motion to quash the bills of information despite the fact the bills had been previously amended to be in compliance with the requirements of the Code of Criminal Procedure.

FACTS:

The original bills of information filed against defendant stated:

“[o]n or about the 23rd day of December, 1982 [and the 11th day of January, 1983] while in LaSalle Parish, Louisiana, Aubrey L. Hudnall did commit obscenity by showing his body in a public place thereby violating LSA-R.S. 14:106(A)(1).”

Defendant filed a motion to quash the bills alleging, among other things, that they did not state the essential facts constituting the offense charged. Upon order of the trial court, the State amended the bills of information on March 2, 1983. The new bills read in pertinent part:

“Aubrey L. Hudnall committed the offense[s] of obscenity by exposing [sic] his genitals to Wanda Arnold in a public place in a manner that was patently offensive on December 23, 1982.”

Thereafter, on March 23,1983, defendant filed another motion to quash alleging essentially the same grounds. After a hearing on the matter, the trial court sustained the motion on the grounds that the bills of information were “excessively vague.”

It is axiomatic that the defendant is entitled to be informed of all the essential elements of the crime for which he is charged so that he can adequately prepare for trial. State v. Meunier, 354 So.2d 535 (La.1978). Defense contends that when a defendant faces a bill of information which pleads legal conclusions, his proper remedy is a Motion to Quash, citing State v. Hebert, 205 La. 110, 17 So.2d 3 (1944). Defense contends the language “patently offensive” is a vague legal conclusion. However, the Supreme Court has declared that there is no constitutional requirement that the bill of information of itself must inform the accused of the essential facts of the offense charged. State v. Gainey, 376 So.2d 1240 (La.1979). See also, State v. Guillory, 404 So.2d 453 (La.1981). In Gainey, supra, the court stated:

“[T]here is no reason to continue to refuse to allow the supplementation of an indictment by a bill of particulars. We therefore hold that although the bill of information charging the defendant fails to set forth the essential facts of the offense charged, his proper remedy is not a motion to quash, but a request for a bill of particulars.”

Compare: City of New Orleans v. Owen, 355 So.2d 1297 (La.1978).

LSA-R.S. 14:106(A)(1) states in pertinent part:

“The crime of obscenity is the intentional exposure of the genitals, pubic hair, anus, vulva, or female breast nipples in any public place or place open to the public view with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive.” [Emphasis added.]

It is axiomatic that a criminal statute must give reasonable notice of the conduct prescribed. Art. 1, Section 13 La. Const. 1974; U.S.Const., Sixth Amendment; Hamling v. U.S., 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). It is generally sufficient that an indictment set forth the offense in the words of the statute itself as long as those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished. U.S. v. Carll, 105 U.S. 611, 26 L.Ed. 1135 (1882); Hamling v. U.S., supra. The term “patently offensive” was found acceptable in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966). See also: Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974) and Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

The amended bills of information trace the obscenity statute almost verbatim and set forth all of the essential elements of the offense. Therefore, the trial court’s declaration that the bills were “excessively vague” is essentially a comment on the statute’s constitutionality. The State notes the Supreme Court has stated that the phrase “patently offensive”, as used in LSA-R.S. 14:106(A)(2), provides adequate notice of the proscribed activity as to satisfy federal due process and similar notice requirements of the Louisiana Constitution. State v. Wrestle, Inc., 360 So.2d 831 (La.1978); State v. Burch, 365 So.2d 1263 (La.1978) reversed on other grounds, Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979). See also: State v. Echols, 376 So.2d 1244 (La.1979).

Although state and federal jurisprudence describing obscenity is at best conflicting and at times confusing, this court and the trial court are duty bound to follow the statements of the Louisiana Supreme Court in assessing attacks on such statutes. Inasmuch as the term “patently offensive” was not found to be defective in Westly, Burch and Echols, we believe the same would be said of the phrase as used in LSA-R.S. 14:106(A)(1).

For the reasons stated above, the ruling of the trial judge is reversed, the Motion to Quash is denied and the case is remanded.

REVERSED AND REMANDED.

      The bill charging him for the January 11th act committed on Christy Smith reads the same.