author: DENNIS, Justice.

text:
    CHEVRON OIL COMPANY v. Joseph N. TRAIGLE, Collector of Revenue, State of Louisiana. PELTO OIL COMPANY v. Joseph N. TRAIGLE, Collector of Revenue, State of Louisiana. SOUTH COAST CORPORATION v. Joseph N. TRAIGLE, Collector of Revenue, State of Louisiana. EXCHANGE OIL AND GAS CORPORATION v. Joseph N. TRAIGLE, Collector of Revenue, State of Louisiana.
    Nos. 83-C-0161, 83-C-0164, 83-C-0169 and 83-C-0172.
    Supreme Court of Louisiana.
    June 27, 1983.
    Rehearing Denied Sept. 1, 1983.

      M. Truman Woodward, Jr., Charles A. Snyder, J. Grant Coleman, Milling, Benson, Woodward, Hillyer, Pierson & Miller, New Orleans, for applicant in No. 83-C-0161.
    Thomas C. Keller, William M. Backstrom, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for applicant'in No. 83-C-0164.
    Gordon 0. Ewin, James A. Babst, Harry R. Holladay, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for applicants in Nos. 83-C-0169 and 83-C-0172.
    Trudy M. White, Baton Rouge, for respondents in all cases.
    Riley F. Boudreaux, Jr., Baton Rouge, for respondents in Nos. 83-C-0161 and 83-C-0164.
   DENNIS, Justice.

The issue presented by this case is whether submission of an already abandoned suit for decision constitutes a waiver by the defendant of his right to seek a dismissal for failure to prosecute under article 561 of the Code of Civil Procedure. The trial judge answered this question in the negative and dismissed the plaintiffs’ suits. The court of appeal affirmed. 424 So.2d 1221 (La.App. 1st Cir.1982). We reverse. The filing of cross motions for summary judgment constitutes a waiver by the defendant of his right to have the suit dismissed as abandoned.

The context of this controversy is four law suits filed on March 28, 1974 for recovery of Louisiana severance taxes paid under protest pursuant to the provisions of La. R.S. 47:1576. The suits were filed in Divisions B, D, I, and J of the Nineteenth Judicial District. On December 16, 1981, the plaintiffs filed motions and orders to consolidate the cases and transfer them all to Division I. The plaintiffs and the defendant also filed cross motions for summary judgment and joint stipulations of facts, accompanied by memoranda supporting the motions for summary judgment. The cross motions for summary judgment asserted that there was no issue as to the material facts and moved for cross rules to show cause why summary judgment should not be entered in each of the mover’s favor. The judge of Division I refused to sign the orders transferring the cases, consolidating them, and setting a hearing date on the joint motions for summary judgment. He noted that it appeared the cases had been abandoned for want of prosecution. The defendant filed motions to dismiss all the cases, and the judge, with the consent of the judges of Division B, D, and J, held a hearing on the matter. Following the hearing, the judge signed an order dismissing the cases.

Article 561 of the Code of Civil Procedure provides in pertinent part:

An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years. This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person, the trial court shall enter a formal order of dismissal as of the date of abandonment.

By its clear and unambiguous wording, article 561 requires three things of the plaintiff: (1) that he take some “step” in the prosecution of his lawsuit, (2) that he do so in the trial court, and (3) that he do so within five years of the last “step” taken by either party. Melancon v. Continental Casualty Company, 307 So.2d 308 (La.1975).

A party takes a “step” in the prosecution or defense of a suit when he takes formal action, before the court and on the record, intended to hasten the matter to judgment. Melancon v. Continental Casualty Company, supra; National Food Stores of La., Inc. v. Chustz, 361 So.2d 273 (La. App. 1st Cir.), writ denied, 362 So.2d 1120 (La.1978); Murphy v. Hurdle Planting and Livestock Co., Inc., 364 So.2d 167 (La.App. 1st Cir.1978), writ denied, 366 Sp.2d 562 (La.1979); Guedry Finance Co., Inc. v. Sanderson, 357 So.2d 1338 (La.App. 4th Cir. 1978); Melancon v. Wood, 303 So.2d 222 (La.App. 4th Cir.1974); Evergreen Plantation, Inc. v. Zunamon, 272 So.2d 414 (La. App. 2nd Cir.), writ denied, 274 So.2d 708 (La.1973); Better Heating and Air Conditioning Co., Inc., v. United Beneficial Fire Insurance Co., 269 So.2d 502 (La.App. 1st Cir.1972).

The policy underlying this requirement is the prevention of protracted litigation that is filed for purposes of harassment or without a serious intent to hasten the claim to judgment. The determination that a claim is not being seriously pursued, which results in dismissal of the suit, must be certain; hence, any action taken by a party that is alleged to be a step in the prosecution or defense of the suit must appear in the court record. In this way, examination of the record will reveal the status of the litigation with certainty and without resort to extrinsic evidence.

Melancon v. Continental Casualty Co., supra, 307 So.2d at 312.

According to the record, the last formal actions taken by the parties in these suits prior to the December 16 filings were the following:

Chevron Oil v. Traigle, Collector of Revenue Amended answers to interrogatories filed April 20, 1976.
Pelto Oil Co. v. Traigle, Collector of Revenue Answers to interrogatories filed August 21, 1974.
South Coast Corporation v. Traigle, Collector of Revenue Answers to interrogatories filed July 26, 1976.
Exchange Oil and Gas Corporation v. Traigle, Collector of Revenue Answers to interrogatories filed July 26, 1976.

We disregard as steps in the prosecution of suit the motions to substitute counsel of record filed on July 29, 1980 by South Coast Corporation and Exchange Oil and Gas Corporation. Such a motion grants to counsel the right to take “steps” toward prosecution of his client’s case, but does not itself constitute such a “step.” Prater v. Schuykill Products Co., Inc., 281 So.2d 829 (La.App. 1st Cir.), writ denied 282 So.2d 719 (La.1973); State through Department of Highways v. Jackson, 211 So.2d 93 (La.App. 1st Cir.1968); McClure v. A. Wilbert's Sons Lumber & Shingle Co., 232 So.2d 879 (La. App. 1st Cir.1970).

We also do not consider any of the numerous correspondence filed into the record evidencing extensive negotiations between the parties. The plaintiffs argue that since these negotiations were conducted pursuant to an order to continue the pretrial conference signed by the court, they have somehow become part of the “record” in the various suits, and are therefore formal actions sufficient to constitute interruptions to abandonment. We disagree. As the court of appeal correctly observed, the ongoing negotiations in the instant case did not prevent any counsel from taking some formal action in or before the trial court within the intent of article 561 of the Code of Civil Procedure before April 28, 1981. 424 So.2d at 1224. At all times, the plaintiffs retained the ability to set these cases for trial if they felt the negotiations were not progressing satisfactorily. We do not consider the desire on the part of the parties in this case to proceed via summary judgment, requiring the negotiation of a stipulation of facts, sufficient to overcome the strong policy reasons embodied in the requirement that “steps” in the prosecution of a suit sufficient to interrupt abandonment occur on the face of the record.

We conclude that the trial judge was correct in observing that each of the cases had already been abandoned,, when they were presented to him for consolidation, transfer and summary judgment on December 16, 1981. The four suits were abandoned on April 20, 1981, August 21, 1979, July 26,1981 and July 26,1981, respectively. Therefore, the defendant had the right to file a motion to have each of these suits declared abandoned for failure to prosecute under article 561 of the Code of Civil Procedure. The record reveals, however, that the defendant did not file his motions to dismiss until after he had joined in the filing of a motion for summary judgment and stipulations of fact. The filing was accompanied by memoranda supporting the motion in each party’s favor. We consider the filings of December 16, 1981 sufficient to constitute submission of the case for decision. See La.Code Civ.P. arts. 966 & 968. Cf. art. 1637. . The issue before us, therefore, is whether the submission of these already abandoned cases by the defendant constituted a waiver of his right to have the suits declared abandoned and therefore dismissed.

The source of article 561 of the Code of Civil Procedure was article 3519 of the Civil Code, which read in part prior to its 1960 amendment:

Whenever the plaintiff having. made his demand shall at any time before obtaining final judgment allow five years to elapse without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same.

La.Civ.Code art. 3519 (1870), as amended by Acts 1954, No. 615, § 1. Under article 3519, two exceptions to the rule of five year abandonment were recognized: (1) when the failure to prosecute was caused by circumstances beyond plaintiff’s control, and (2) when the defendant waived his right to plead abandonment by taking any action in the case inconsistent with an intent to treat the case as abandoned. Melancon v. Continental Casualty Co., supra, 307 So.2d at 311. See La.Code Civ.P. art. 561, Comment (c) (1960), and cases cited therein.

Among the differences between article 561 of the Code of Civil Procedure and article 3519 of the Civil Code are two of significance to the concept of waiver: (1) article 561 specifically states that its effect is self-operative, thus codifying the rule of Evans v. Hamner, 209 La. 442, 24 So.2d 814 (1946), and (2) article 561 states that a failure by the parties to take any steps in the prosecution or defense of the suit leads to abandonment. These changes led us to comment in dicta in Melancon v. Continental Casualty Co., supra, that the jurisprudential concept of waiver appended to arti-ele 3519 was limited in article 561 to those instances where the defendant had taken some formal step in the defense of the suit within the five-year period of plaintiff’s inaction. “Clearly, under the present version of article 561, formal action taken by the defendant after the expiration of five year’s inactivity will not preclude a later plea of abandonment by him.” 307 So.2d at 312 n. 2.

Upon further reflection, we conclude that this view of article 561 is mistaken insofar as it indicates that the defendant, once abandonment has occurred, cannot do anything which would constitute a waiver. The defendant’s submission for decision of an already abandoned case precludes him from raising the claim of abandonment. By allowing a suit to be submitted for decision, the defendant clearly consents to have the matter resolved upon its merits.

It is clear from the comments to article 561 that the concept of waiver was retained in the transfer of the abandonment article from the Civil Code to the Code of Civil Procedure. The redactors noted that:

This article treats the action as abandoned only if five years has elapsed without any steps being taken by any of the parties in the prosecution or defense thereof. This change was made to provide for the case where the defendant has taken some step in the defense of the action, but subsequently moves to have the action declared abandoned because the plaintiff has failed to take any step in the prosecution thereof for five years.

La.Code Civ.P. art 561, Comment (b) (1960). However, the intention of the legislature with regard to actions taken by the defendant after the lapse of the five year period is not so clear. The redactors of article 561 cite with approval a line of cases which hold that even though article 3519 was self-operative, certain activities by the defendant were sufficient to waive the right to obtain dismissal of an already abandoned suit. See La.Code Civ.P. art. 561, Comment (b) (1960) citing State ex rel. Shields v. Southport Petroleum Corporation of Delaware, 230 La. 199, 88 So.2d 25 (1956) (the seeking of an order for a bond to cover costs of preparing for trial constitutes a waiver), and Green v. Small, 227 La. 401, 79 So.2d 497 (1955) (filing stipulations constitutes a waiver). See also, Harrisonburg-Catahoula State Bank v. Meyers, 185 So. 96 (La.App. 2nd Cir.1938) (defendant who suffers default without raising abandonment waives his right). In Semel v. Green, 252 La. 386, 211 So.2d 300 (La.1968), we recognized that article 561 was patterned on the then existing jurisprudence, as expounded in Evans v. Hamner, supra, and other cases.

Oddly, however, the redactors conclude by saying that:

With respect to the exception to the rule of abandonment based on the defendant’s waiver thereof, the point is moot under the above article. The problem is solved by its broadened language “when the parties failed to take any steps in its prosecution or defense” for a period of five years.

La.Code Civ.P. art. 561, Comment (c) (1960). Article 561, therefore, explicitly addresses the question of pre-abandonment waiver; however its silence concerning post-abandonment waiver could either be construed as: (1) a conscious limitation of the right of abandonment to pre-abandonment actions, (2) legislative recognition of the jurispru-dentially created doctrine of waiver in all of its forms, (3) codification of the pre-aban-donment doctrine of waiver, with post-abandonment waiver left to the discretion of the courts; or (4) mere inadvertence in failing to recognize the potential for post-abandonment waiver.

Without passing on the validity of the Melancon dicta for any action by the defendant short of submission of the case for decision, we conclude that submission of an abandoned case for decision effects a waiver of the right to have the suit dismissed because of want of prosecution under article 561 of the Code of Civil Procedure. The concept of abandonment is not punitive in nature. The notion is one which is designed to discourage vexatious, harras-ing or frivolous suits by preventing the plaintiff from allowing such suits to linger indefinitely. Moreover, the threat of abandonment serves to hasten all suits to judgment. Once a case is submitted, its disposition is out of the hands of the parties, and nothing is gained by penalizing them for what they have failed to do before that point. Cf. Bryant v. Travelers, Insurance Co., 288 So.2d 606 (La.1974); Putch v. Straughan, 397 So.2d 38 (La.App.2d Cir.), writ denied, 401 So.2d 976 (La.1981); Succession of Moody, 306 So.2d 869 (La.App. 1st Cir.1974), writ denied 310 So.2d 639 (La. 1975); Lopez v. Southern Natural Gas Co., 287 So.2d 211 (La.App. 4th Cir.1973); Motors Insurance Corp. v. Howell, 266 So.2d 240 (La.App.2d Cir.1972); Burke v. State Farm Mutual Auto Insurance Co., 234 So.2d 432 (La.App. 1st Cir.1970). Nothing is served by allowing the defendant to have a case submitted for judgment declared abandoned. If our goal is to encourage the hasty resolution of disputes, it would be anomalous for us to hold that this goal is somehow advanced by the dismissal of suits that are ready for resolution. Had the legislature intended such a paradox under article 561, it could have so explicitly stated. Without such a statement, we reject this interpretation and its result.

CONCLUSION

By joining in a motion for summary judgment and submitting the cause for a decision, the defendant has waived his right to have these cases dismissed for want of prosecution under article 561 of the Code of Civil Procedure. We recognize that article 561 is self-operating; however, it does not allow a defendant to have a case dismissed when the parties have agreed that it is ready for resolution, and that it should be decided upon the merits.

DECREE

For the foregoing reasons, the decision of the court of appeal is reversed and the case is remanded to the district court for further proceedings.

REVERSED AND REMANDED.

LEMMON, J., concurs.

MARCUS, J., dissents.

      . The filing of answers to interrogatories are “steps” in the prosecution of the suit. Edwards v. Giambrone, 353 So.2d 326 (La.App. 1st Cir.1977), writ denied, 354 So.2d 1375 (La. 1978).

      . We need not decide whether the motion for continuance of a pretrial conference filed by Chevron on April 28, 1976 was a “step” in the prosecution of the suit intended to hasten it to judgment. Assuming this to be true, the suit would still have been abandoned prior to the December 16, 1981 filings.

      . Prior to Melancon, the courts of appeal had addressed this issue and reached different answers. Compare Bryant v. Travelers Insurance Co., 277 So.2d 681 (La.App. 1st Cir.1973), reversed on other grounds, 288 So.2d 606 (La. 1974) (the provisions of article 561 cannot be waived provided that the case has not been submitted), and Johnston v. Nanney, 147 So.2d 268 (La.App. 3rd Cir.1963), affirmed, 244 La. 959, 155 So.2d 196 (La.1963) (the fixing of a abandoned case for trial pursuant to an agreement between counsels constituted a waiver of the rights granted to defendant under article 561), with LeBlanc v. Thibodaux, 162 So.2d 753 (La.App. 1st Cir.1964), and Tucker v. Tucker, 150 So.2d 665 (La.App. 4th Cir.1963), holding that there can be no waiver by the plaintiff or defendant after the five-year period of prosecu-tive or defensive inaction.

      . In Melancon, we suggested that the rule of abandonment of actions was both historically and theoretically a species of liberative prescription. We therefore likened the concept of waiver of abandonment to interruption of prescription by acknowledgment. 307 So.2d at 311. Renunciation is also available as a defense to a claim of prescription, and “one cannot renounce a prescription not yet acquired.” La.Civ.Code art. 3460. Therefore, under the view that abandonment is a form of liberative prescription, the concept of post-abandonment waiver is similar to renunciation, which may either be express or tacit. La.Civ.Code art. 3461.
      It may be that abandonment is a type of délais préfíxes, a strict limitation of forfeiture, rather than a type of prescription. If this is the case, renunciation would not be available. See Aubry & Rau, 5 Civil Law Translations p. 421 (La.State Law Inst. 1972); Baudry-Lacantinerie & Tissier, 5 Civil Law Translations pp. 23-30 (La.State Law Inst. 1972). However, among the characteristics of a forfeiture is the ability of the judge to recognize the fact ex officio, and the unavailability of interruption. Aubry & Rau, supra. Since in the case of abandonment, the judge cannot dismiss the suit ex officio, and interruption by waiver is clearly available, considerable credence is lent to the view of Bau-dry-Lancantinerie and Tissier, that “the distinction between prescriptions and forfeitures seems to us an unnecessary-complication and a source of confusion.” Baudry-Lancantinerie & Tissier, supra, at p. 30. It is possible to discuss certain periods of time fixed by statute, as we have done in this opinion under article 561 of the Code of Civil Procedure, without exactly classifying them as forfeitures or prescriptions. Baudry-Lancantinerie & Tissier, supra, at p. 24.


source: Caselaw Access Project

author: WATSON, Justice.

license: Public Domain

text:
    SAFECO INSURANCE COMPANY OF AMERICA v. Lesley PALERMO.
    No. 82-C-2892.
    Supreme Court of Louisiana.
    June 27, 1983.
    Rehearing Denied Sept. 1, 1983.
    Robert J. Vandaworker, Taylor, Porter, Brooks & Phillips, Baton Rouge, for applicant.
    Carolyn Pratt Perry, Franklin, Moore & Walsh, Baton Rouge, for respondent.
   WATSON, Justice.

The issue is whether this litigation is barred by either res judicata or law of the case.

FACTS

Safeco Insurance Company of America filed suit against Lesley Palermo for contribution of $2,555.60, representing one-half of the amount paid to Southern Farm Bureau Casualty Insurance Company as a result of a judgment in a subrogation suit filed by Southern Farm against Safeco and its insureds, Victor and Nick Glaviano.

After this suit was filed, exceptions of res judicata and law of the case on behalf of defendant, Lesley Palermo, were sustained by the trial court. The court of appeal reversed and remanded for trial. Safeco Ins. Co. of America v. Palermo, 422 So.2d 1375 (La.App. 1 Cir.1982). A writ was granted to consider the judgment. 427 So.2d 865 (La., 1983).

On February 27, 1979, an automobile owned by Victor Glaviano and operated by Nick Glaviano stalled on Louisiana Highway 1. After the driver activated his emergency flashers, the automobile was struck from behind by an automobile owned by Peter Palermo and operated by Lesley Palermo. Southern Farm, the collision insurer of the Palermo automobile, paid $3,662.01 for the property damage and $660.28 for the medical expenses of Lesley Palermo, Daniel Fabre and John Glynn Breau.

In the first suit, Southern Farm alleged that it was the collision insurer of the automobile owned by Peter Palermo and paid medical expenses of the occupants. Southern Farm claimed a right of subrogation against Victor and Nick Glaviano and their insurer, Safeco Insurance Company of America, and received a judgment for $4,322.29 against those defendants. The answer to the petition admitted that the Glaviano vehicle was involved in an automobile accident on which Safeco provided certain liability coverage. It was alleged in the answer that the sole cause or, alternatively, a contributing cause of the accident was the negligence of Peter Palermo which barred recovery by Southern Farm. Any negligence by Lesley Palermo was not pleaded. The testimony at the first lawsuit is not in evidence. There was no evidence at the hearing on the exceptions and counsel for plaintiff was not present. Thus, the only record available for consideration consists of the pleadings in the first suit and the pleadings in this second suit.

LAW

In Louisiana, relitigation of the object of a judgment is barred when there is: (1) identity of the thing demanded; (2) the same cause of action; and (3) the same parties appearing in the same quality. LSA-C.C. art. 2286; Dornak v. Lafayette General Hospital, 399 So.2d 168 (La., 1981). Parties can be represented by their successors or others appearing in the same quality. Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La., 1978).

Mitchell v. Bertolla, 340 So.2d 287 (La., 1976) defined the civilian concept of cause, pointing out that Civil Code Article 2286 mistranslates cause as cause of action and the two terms are not necessarily identical. Cause is the principle, based upon juridical or material fact, which is the basis for a specific demand and is related to the party making the demand. See R.G. Claitor’s Realty v. Juban, 391 So.2d 394 (La., 1980).

Collateral estoppel or issue preclusion is not a valid defense in Louisiana. Welch, supra; State ex reí Guste v. City of New Orleans, 363 So.2d 678 (La., 1978). Judicial estoppel does not apply. Doyle v. State Farm (Mut.) Ins. Co., 414 So.2d 763 (La., 1982); Ugulano v. Allstate Ins. Co., 367 So.2d 6 (La., 1978).

CONCLUSION

The writ application alleged that the driver of the Palermo vehicle was the minor son of the owner of the vehicle and negligence of the minor, Lesley Palermo, would be imputable as a matter of law to his father. It was also alleged that the issue of negligence on the part of Lesley Palermo was fully litigated in the first suit. However, Leslie Palermo’s status is not set out in the pleadings. Any contributory negligence on his part was not pleaded as a defense in the previous suit, and, as far as this record reflects, was not litigated. LSA-C.C.P. art. 1005. Thus, the issue of Safeco’s right to contribution, the basis of this suit, has not previously been decided. Compare Juban, supra.

Lesley Palermo was not a party to the first suit in any capacity. Southern Farm does not represent the “same entity in the present case” that it represented in the prior case, Welch, supra, 359 So.2d at 156. Southern Farm is now defending Lesley Palermo. In the previous suit, Southern Farm appeared solely as the insurer of Peter Palermo. The Glavianos are no longer parties at interest. Thus, the parties to this suit are different from those in the prior suit.

Because the cause of this suit and the prior suit are different and the parties are not identical, res judicata is inapplicable. Welch, supra; Dornak, supra.

Law of the case or issue preclusion is not a valid defense in Louisiana. Welch, supra; Doyle, supra; Ugulano, supra. Even if it were, the issue of Lesley Palermo’s negligence has not previously been pleaded or, apparently, decided. While the Glavianos’ negligence was necessarily litigated in the first suit, any contributory negligence by Lesley Palermo was not. Thus, there was no implied judgment on the latter question. A possible defense “is only a reason for judgment and forms no part of the judgment.” State v. American Sugar Refining Co., 108 La. 603, at 612, 32 So. 965 at 969 (1902). The common law “might have been pleaded” rule does not apply in Louisiana. See 53 Tulane L.Rev. 875 at 895.

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

AFFIRMED.

LEMMON, J., concurs in the result.

      . Other exceptions of no right and no cause of action were also sustained. The court of appeal correctly found that these were clearly without merit.

      . LSA-C.C. art. 2286 provides:
      “The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

      . LSA-C.C.P. art. 1005 provides:
      “The answer shall set forth affirmatively arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, division, duress, error or mistake, estop-pel, extinguishment of the obligation in any manner, failure of consideration, fraud, illegality, injury by fellow servant, transaction or compromise, and any other matter constituting an affirmative defense. If a party has mistakenly designated an affirmative defense as an incidental demand, or an incidental demand as an affirmative defense, and if justice so requires, the court, on such terms as it may prescribe, shall treat the pleading as if there had been a proper designation.”


author: LEMMON, Justice. BLANCHE, Justice

text:
    Mrs. Mary Jane C. MECHE, Individually, as Natural TUTRIX OF and for the Use and Benefit of Her Three Minor Children, Alton Joseph MECHE, Pamela Ann Meche and Mary Rhodnoda Meche, James A. Meche, Tina Meche Midkiff and Patricia Meche Naquin v. GULF STATES UTILITIES COMPANY.
    No. 82-C-1899.
    Supreme Court of Louisiana.
    June 27, 1983.
    Rehearing Denied Sept. 1, 1983.

      Joe J. Tritico, C. Jerre Lloyd, Lake Charles, for applicant.
    Fred S. Sievert, Jr., Robert S. Dampf, Stockwell, Sievert, Viccellio, Clements & Shaddock, Lake Charles, for respondent.
   LEMMON, Justice.

The principal issue in this case is whether Gulf States Utilities acted unreasonably in extending an uninsulated high voltage line through the interior of a mobile home park at a height of 23 feet and is consequently liable for the injuries and death which resulted from contact with that line.

I.

On February 15,1980, at about 5:00 p.m., Leroy Meche, along with other members of his family, visited at his daughter’s mobile home, which had been moved into the Ath-erton Trailer Park the previous day. The family dined together and then attempted to watch television, but found the reception poor. Meche, along with his daughter’s husband and others, drove to the daughter’s former home to retrieve the television antenna, which had not yet been moved. They returned at about 8:30 and attempted to install the 27-foot, 103/4-inch antenna on the north side of the trailer. As Meche and others raised the antenna towards a family member on a ladder next to the trailer, the antenna struck Gulf States’ uninsulated 7,600-volt electric line, which ran parallel to the trailer. Meche was killed, ánd his son, Joey, was seriously injured.

After trial in the ensuing litigation, the jury answered special interrogatories and found that Gulf States was not negligent and that the electric power line, although in Gulf States’ custody, was not defective and did not create an unreasonable risk of harm.

The court of appeal affirmed. 416 So.2d 1316. Relying on this court’s decision in Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982), the court concluded that the jury’s findings were not clearly wrong. We granted certiorari to review these rulings. 420 So.2d 972.

II.

The electric line in question was installed in July, 1979, at the request of the trailer park owner, who had begun expansion of an existing trailer park. The area of expansion was approximately 176 wide on the public road and 250 feet deep.

Gulf States was already supplying electric service to the trailers in the existing trailer park from a 7,600-volt line along the western boundary of the area of expansion. Gulf States decided that the best location for the new line was either along the northern (or rear) boundary or along the eastern boundary of the area of expansion, but rejected these when the adjoining landowner refused to grant a servitude for construction on the boundary line. Gulf States then decided to construct the line 50 feet south of the northern boundary, running east and west from the existing line on the west and extending between two rows of trailer stalls. The lines were hung from 35-foot poles, with the energized line on the bottom at a height of approximately 23 feet above the ground and the neutral line three feet above the energized line. At the time that the new line was installed, there were mobile homes in the existing trailer park, but the proposed stalls in the area of expansion were not yet occupied.

Meche’s daughter’s trailer occupied a stall in the second row south of the north boundary line. The energized line was 13 feet, 4½ inches north of (in front of) the trailer and 12 feet, l16/i6 inches from the top of the trailer roof.

The National Electric Safety Code requires that uninsulated line over driveways, roads and residential areas be at least 20 feet above the ground. There were no specific requirements in the Code for the height of lines in trailer parks. The expert testimony conflicted on whether compliance with the minimum standards for heights over residential areas and roadways was sufficient for trailer parks.

Plaintiffs’ expert, Dr. Ambrose Ramsey, Jr., testified that trailer parks present a different situation than residential areas and that more precautions should be taken because of the mobility of the homes and the frequent necessity of connecting utilities and of raising television antenna. He opined that the line at the minimum height for residential areas did not comply with the general rule in the Code that all equipment and lines should be installed and maintained so as to reduce hazard to life as far as practical. (Rules 200, 210, 211 of the National Electric Safety Code.) Ramsey suggested that safer alternatives would have been to construct the line on the boundary as originally planned, to place the line underground, to insulate the line, or simply to hang the energized line higher on the same pole. Ramsey also explained that the 7,600-volt uninsulated line, which ran parallel to the trailers, created a greater risk of accident and exposure than if the lines had run perpendicular to the trailers.

Plaintiffs’ second expert agreed that a line which extended through the trailer park, parallel to and between spaces, presented a hazard, and he also suggested alternatives which would have made the area safer.

Defendant’s expert, Dr. Wayne Roelle, testified that the line was in complete compliance with the National Electric Safety Code. He opined that the line was reasonably safe, since the line was visible in daylight and since a person’s raising a 27-foot antenna into a line during hours of darkness was not reasonably foreseeable. He dismissed the plaintiffs’ experts’ suggestions for alternatives in that they solved some problems while creating others.

III.

Similar issues were addressed in Thomas v. Gulf States Utilities Co., 128 So.2d 323 (La.App. 1st Cir.1961), in which the court stated:

“It is reasonable to anticipate that people who live in trailers will have television antennas, and that such antennas may be raised to heights in excess of the minimum requirements of heights of wires required by the National Electric Safety Code and in excess of the height of the wires in this instance. Trailer homes are normally temporary in nature, necessitating frequent putting up and taking down of TV antennas. The space which these antennas occupy is clearly an area where people normally go for work or pleasure, creating a corresponding duty on the part of the company maintaining high-voltage lines to exercise the greatest degree of care to protect the public.”
See also Annot. 82 A.L.R.3d 113 (1978).

Gulf States contends, and we agree, that mobile homes are not moved frequently in modem living and that there should be no difference in this case between a mobile home and a permanent home in the pertinent location. However, mobile homes in a trailer park are generally (as they were in this case) placed closer together on smaller lots than permanent homes in a subdivision and are generally served by fewer streets (on which the high voltage lines are frequently located in subdivisions). Extra precautions may be necessary because of special circumstances.

When extending the high voltage line in the present case through the interior of the trailer park, parallel to and between two rows of trailers, Gulf States should have reasonably anticipated that many residents of the trailers in those two rows might erect television antennas upon moving into the area and therefore knew or should have known of the risk that such activity might cause contact with the electric wires in close proximity to those particular trailer sites. Gulf States could have placed the high voltage line higher on the pole (or at least above the neutral line, as was done along the eastern boundary), or taken any of several precautions to minimize the special risk to these particular trailers. Yet Gulf States simply relied on the warning of danger implicit in the mere presence of electric wires in plain view. That warning, while perhaps effective for those who erected television antennas in daylight hours, simply was insufficient in the present case. Gulf States apparently installed the line on the assumption that none but the most grossly negligent would cause contact with the 23-foot high wires in plain view for all to see. However, when Leroy and Joey Meche attempted to erect the antenna after dark by the illumination of headlights of two vehicles, there was no effective warning to them of the presence of the wires.

We conclude that Gulf States’ substandard conduct in failing to take special precautions for the special risk of extending a high voltage line through the interior of the trailer park was a legal cause of this accident.

IV.

Because the jury and the court of appeal found that Gulf States was not negligent and did not create an unreasonable risk of injury, neither considered the issue of whether the conduct of Leroy and Joey Meche was a cause of this accident. After a review of the record, we conclude that it was not and that plaintiffs are not barred from recovery.

The Meche family arrived at the trailer in the late afternoon of the first day that the trailer was in the park. This was Leroy’s and Joey’s first visit to the new site. Mrs. Meche testified that she did not remember seeing the wires overhead when they arrived. Ricky Midkiff, who arrived with the Meches and who helped with the attempt to install the antenna, testified that the first time he saw the wires was just as the men were raising the antenna. Midkiff denied any discussion of the wires before they raised the antenna.

Unlike the victims in Kent and Thomas, none of the participants in this case was aware of the presence of the overhead lines when they attempted to raise the antenna. In Kent, the victim (who was held contribu-torily negligent by the court of appeal) had been repeatedly warned of the presence of the lines and even joked about them almost immediately before the accident. Similarly in Thomas, the victim was barred from recovery because at least three persons on separate occasions questioned the wisdom of attempting to erect the antenna near the lines.

Here, there was no reason for the men to anticipate the existence of an uninsulated high voltage line within reach of a normal television antenna in the middle of a mobile home park. While courts have held that daylight electrocution victims are notified of the hazard by the very presence of poles and electric lines, the same cannot be said about a victim electrocuted in the dark. The men in this case raised the antenna into an electric line which they did not know was there, could not see, and had no cause to anticipate. We accordingly hold that no fault or substandard conduct of Leroy or Joey Meche was a legal cause of this accident.

For these reasons, the judgments of the lower courts are reversed, and judgment is rendered in favor of plaintiffs and against defendant. This case is remanded to the court of appeal for fixing damages on the basis of the complete record.

MARCUS, J., dissents.

BLANCHE, J., dissents and assigns reasons.

BLANCHE, Justice

(dissenting).

The central issue raised in this case is whether Gulf States’ placement of the uninsulated electrical line created an unreasonable risk of injury. Factors traditionally considered in determining whether the conduct of a particular defendant is substandard or creates an unreasonable risk of harm include: (1) the likelihood of the harm; (2) the gravity of the harm; (3) the burden of prevention; and (4) the social utility of defendant’s conduct. Weighing all of these factors in light of the evidence adduced at trial, I am of the opinion that the placement of the electrical line in the present case did not create an unreasonable risk of injury.

In reaching this decision, I take particular note of the fact that the location of the electrical line twenty-three feet above the ground was in strict compliance with the National Electric Safety Code requirements for placement of uninsulated lines over driveways, roads, and residences. Furthermore, the line was clearly visible during daylight hours. The risk that an individual would raise a twenty-seven foot antenna directly into the electrical line during hours of total darkness was remote and not easily foreseeable. To hold that Gulf States engaged in substandard conduct under these circumstances amounts to a finding of strict liability on the defendant’s part. I cannot subscribe to such a result.

Even if, as the majority contends, Gulf States’ conduct could be deemed negligent, the actions of the Meches in erecting an antenna during the evening hours without taking any safety precautions or checking for apparent obstructions (such as the electrical line) constitutes contributory negligence.

I respectfully dissent.

      . Roelle explained that underground line would create other hazards, such as contact with the line in subsequent digging to install fences or repair utility lines. He also pointed out that the placement of transformers above the ground might pose a danger to children in the area. He dismissed the suggestion of insulating the line with the explanation that insulation on high voltage lines is likely to deteriorate with time and might create a false sense of security for those working around and under the lines. As to placing the line higher, Roelle observed that the line met the minimum clearance, which was designed to place the line out of the reach of people engaged in normal activities. He also indicated that any increase in the height of the line also increases the danger to men servicing the line.

      . Indeed, if the perimeter lines were installed at the same height with the energized line on top, it is logical that the interior line in close proximity to the trailer locations should have been installed at a greater height.

      . As noted earlier, the installation took place in the darkness by the light of headlights from two vehicles, which did not illuminate the overhead area. There was, however, a street light on a pole on the far side of the adjacent trailer to the east.

      . Defendant presented testimony that another resident of the park had seen Leroy Meche earlier that day helping his daughter’s husband level the trailer and that Meche had observed the witness’ daughter’s kite become tangled in the very wire which later caused the electrocution. Plaintiff rebutted this evidence of Meche’s awareness of the line with MidkifPs testimony that Meche did not arrive until later that evening with the rest of the family and with the testimony of Francis Meche, who was there earlier that day and who had helped Meche’s son-in-law level the trailer.

      . Because this court found that Gulf States was not liable in Kent, we did not specifically address the issue of contributory negligence.

      . Plaintiffs’ expert testified that it was reasonable to anticipate antennas between 20 and 30 feet in length.


author: WATSON, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. George G. ESTER.
    No. 82-KA-1309.
    Supreme Court of Louisiana.
    June 27, 1983.
    Concurring Opinion, Sept. 1, 1983.
    Rehearings Denied Sept. 1, 1983.

      William J. Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., Sonia D. Peters, Catherine M. Estopinal, Dale Cox, Asst. Dist. Attys., for plaintiff-appellee.
    William T. Giddens, Jeanette Garrett, Shreveport, for defendant-appellant.
   WATSON, Justice.

Defendant, George G. Ester, was convicted by a jury of distribution of a Schedule II controlled dangerous substance, Phenmetra-zine (Preludin), on July 11, 1981. (LSA-R.S. 40:967; 40:964). Defendant was sentenced to five and a half years at hard labor and has appealed his conviction and sentence, relying on six assignments of error.

FACTS

William Hall, a former security officer at the L.S.U. Medical School and corrections officer at Angola, was doing undercover narcotics work for the Shreveport Police Department while awaiting training at the Shreveport Police Academy. During the course of his six week investigation, approximately twenty-two people were arrested, including defendant Ester.

On July 11, 1981, Hall was at the corner of Sprague and Mary Streets in the “Bottoms” area of Shreveport. He was approached and asked if he wanted to buy pills. Hall replied that he wanted two and paid $30; the street price for Preludin being $15 per tablet. The seller said he was called George. This transaction took place around 8:30 P.M. in the summertime when it was still light. Three surveillance officers, Burns, Gahagan and Bonnette, were listening to Hall’s conversation but could not see him. After defendant left, Hall described his size, clothes and hair style to the listening officers. Immediately afterward, Officers Burns and Gahagan observed a man fitting the description standing on the corner in front of the Sprague Street Hotel. Officer Joe Gahagan testified that he recognized George: “I knew him as George Ester, but I couldn’t recall his last name at that time.” (Tr. 320) George was described as a regular on the corner.

Hall and the officers returned to the police station where a confidential informant who had been at the scene told them George’s last name. Gahagan testified:

“The informant was telling me that the guy’s name was George, and I couldn’t understand the last name he was saying. I was thinking he was saying Ethridge or something like that. Then he told me that the George was Susie Mae Kirken-dorf s ex-old man or Susie Mae George she’s also known, ex-old man. I knew who he was then. I knew him from that. I knew he was George Ester.” (Tr. 163)

Because of prostitution investigations, Ga-hagan was familiar with Susie Mae and George. Hall then picked out Ester’s photograph, the seventh in a large group. Hall was not prompted to select Ester’s photograph and it was not identified for him. Less than thirty minutes elapsed between the purchase and the identification.

Defendant contended at trial that his cutoffs, white shirt and braids were common to many young men in the area that night and the officers may have confused him with someone else whose first or second name was George, one possibility being a Frank George from whom Hall also bought drugs. However, both Hall and Burns negated this possibility; they knew Frank George.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the trial court erred in refusing to order the state to reveal the name of the confidential informant who aided the officers’ identification.

Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623,1 L.Ed.2d 639 (1957) discussed the problem involved in balancing the government’s interest in encouraging anonymous information against the defendant’s right to a fair trial. In Roviaro, because the informant had helped set up the criminal occurrence and played a prominent part in it, the trial court committed prejudicial error in allowing the government to withhold his identity. Here, the informant was not a participant in the crime and merely aided the police in identifying the defendant. State v. Dobson, 260 La. 471, 256 So.2d 594 (1971), cert. denied 409 U.S. 913, 93 S.Ct. 242, 34 L.Ed.2d 173 (1972); State v. Oliver, 430 So.2d 650 (La.1983).

From the officers’ testimony, the informant merely prompted their memory and Ester undoubtedly would have been identified without his aid. The trial court did not err in ruling that Ester was not entitled to disclosure of the name of the confidential informant.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant was originally charged with two counts of distribution, one on July 11 and the other on July 17. The two charges were severed for trial. After defendant gave notice of an alibi defense, the state gave notice of its intention to introduce rebuttal evidence of the second offense to prove identity. The trial court ruled that this was permissible. After this ruling, defendant did not present his alibi defense and contends that the ruling deprived him of a fair trial.

LSA-R.S. 15:446 provides as follows:

“When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.”

These two offenses involved the same parties, the same illegal substance and the same location. Both occurred within a week’s time. Thus, it would logically appear that the crimes were the work of the same person. See State v. James, 396 So.2d 1281 (La.1981). However, since drug sales were endemic in the “Bottoms” area of Shreveport, the two offenses are not “signature crimes”. James, 396 So.2d at 1287. Nonetheless, when the pattern of two offenses is so identical, the system exception applies if identity of the defendant as the perpetrator is a crucial issue. State v. Banks, 307 So.2d 594 (La.1975). Identity of George Ester was conceded to be the only real issue. Compare State v. James, supra. Where identity is genuinely at issue, system evidence has relevance independent of defendant’s criminal propensity and should be admitted if it meets the other tests of admissibility. State v. Hatcher, 372 So.2d 1024 (La.1979). Thus, with clear and convincing evidence that Ester committed the other crime and a similarity logically indicating that he committed both, evidence of that other crime would have been so relevant to the critical issue of his identity as the perpetrator of this crime that the probative value of the other crime would outweigh its prejudicial effect. State v. Humphrey, 412 So.2d 507 (La.1982); State v. Hatcher, supra; State v. Banks, supra. There is no Prieur problem because defendant was given notice of the state’s intention to introduce evidence of the other crime in rebuttal. As in Banks, evidence of the identical later act of misconduct would have been highly probative. The trial court did not err in its ruling.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBERS FOUR AND FIVE

Defendant contends that the trial court improperly charged the jury with respect to reasonable doubt and erred in refusing to give a requested jury charge concerning reasonable doubt.

The jury was instructed, in pertinent part, as follows:

“To begin with, every person in this state accused of crime is presumed by law to be innocent until his guilt shall have been established beyond a reasonable doubt in trial. The burden is upon the State to prove every essential element of the crime charged including identity.
“The identification of the defendant as the person committing the offense must be proved to your entire satisfaction and beyond all reasonable doubt before you would be justified in finding him guilty.
“It is the duty of the jury in considering the evidence and in applying to that evidence the law as given by the court, give the defendant the benefit of every reasonable doubt arising out of the evidence or want of evidence in the case. If you are not convinced of the guilt of the defendant beyond a reasonable doubt, it is your duty to find him not guilty.” (Tr. 405-406)
“Proof beyond a reasonable doubt is a phrase that is almost self-explanatory. Reasonable doubt does not mean all possible doubt but means doubt based upon a reason. If, after you have considered the State’s evidence and the law applicable, there is doubt in your mind as to the guilt of the accused, which doubt is based upon a reason or for which doubt you can express a reason, then the defendant is not guilty. Reasonable doubt is rational; it is governed by reason. It is not immoderate or excessive. It is honest, equitable and fair. Proof beyond a reasonable doubt does not mean proof to an absolute certainty.” (Tr. 406-407)

In State v. McDaniel, 410 So.2d 754 (La. 1982) the phrases “great uncertainty” and “morally uncertain” were held to have overstated the degree of uncertainty required for a reasonable doubt. Defendant argues that the statement that reasonable doubt “is not immoderate or excessive” also gave this jury a misleading standard for proof of guilt.

One of the dictionary definitions of reasonable is “not excessive”. Another is “moderate”, i.e., not immoderate. While it would have been preferable for the trial court to have read only the exact language of LSA-C.Cr.P. art. 804 to the jury, the phrase “not immoderate or excessive” is not misleading. See State v. Taylor, 410 So.2d 224 (La.1982).

The trial court included the language of LSA-C.Cr.P. art. 804 in its charge. Since the gist of defendant’s requested charge was included in the court’s charge, refusal to make the requested special charge was not error. State v. Edwards, 419 So.2d 881 (La.1982).

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER SEVEN

Defendant contends that no rational trier of fact could have found beyond a reasonable doubt that defendant committed the offense. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). It is argued that Hall’s identification of Ester was unworthy of belief and the circumstances of the identification are suspect and questionable.

Although Ester’s primary defense was that another man, whose first or second name was also George, might have committed the crime, the evidence of his identity as the drug seller is convincing. His guilt was established beyond any reasonable doubt.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER EIGHT

Defendant contends that his five and a half year sentence at hard labor is excessive and the trial court erred in providing that it should run consecutively with any sentence to be imposed in connection with revocation of a prior probation.

Defendant, age twenty-nine, has four children and a good work history. However, he has several misdemeanor convictions including two convictions for attempts ed felony theft in 1981. Defendant’s sentences on those 1981 convictions were suspended and he was placed on supervised probation for two years.

Since defendant did not respond favorably to his prior probation, the term of imprisonment imposed here is not excessive. However, the trial court erred in making it consecutive with any sentence to be imposed after revocation of the prior probation. That determination must be made in a revocation hearing by the court originally imposing the sentence and probation. LSA-C.Cr.P. arts. 900, 901.

Therefore, defendant’s conviction will be affirmed, but the sentence vacated and the matter remanded to the trial court for re-sentencing. State v. Donnaway, 410 So.2d 231 (La.1982).

Accordingly, the conviction is affirmed, but the sentence is vacated and the matter is remanded to the trial court for resentenc-ing.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.

DENNIS, J., concurs.

CALOGERO, J., concurs and assigns reasons.

CALOGERO, Justice,

concurring.

I concur in the result reached by the majority in the instant case.

In assignment of error number 2, defendant contends that he was denied a fair trial because he was prevented from putting on his alibi defense by the threat, from a pretrial ruling, that “other crimes” evidence (evidence of the commission of a similar crime one week later) would then be admissible to rebut his alibi. The majority finds no merit to defendant’s argument by concluding that the “other crimes” evidence would have been properly admissible to prove identity and thus that the trial judge’s ruling was correct. While I disagree with the majority’s conclusion that the “other crimes” evidence would have been admissible, I nevertheless concur in the result reached for other reasons.

The other crimes evidence sought to be admitted by the state in defendant’s trial to prove identity was evidence that defendant had made a later drug sale to the same individual. The majority concludes that since the “two offenses involved the same parties, the same illegal substance and the same location ... it would logically appear that the crimes were the work of the same person.” I fail to see how logic dictates such a conclusion, especially here where the purchases were made on a street corner, by an individual requesting the given substance and in an area where “drug sales were endemic.” Furthermore, while the majority acknowledges that there must be clear and convincing evidence that the defendant committed the “other crime” before evidence of it can be admitted, it fails to explain what that clear and convincing evidence was, I submit, because there was none. The evidence intended to be used to prove the defendant committed the “other crime,” was the testimony of the buyer, the same individual who was testifying against the defendant in the instant case. Thus while the majority admits that identity was at issue, that is, that the buyer’s identification was not conclusive, it concludes at the same time that the evidence (consisting of the same buyer’s identification) that defendant was the perpetrator of the “other crime” was clear and convincing.

Therefore, I disagree with the majority findings that the two crimes were sufficiently similar to come within the systems exception to the rule prohibiting the admission of “other crimes” evidence, and that there was clear and convincing evidence of the defendant’s commission of the “other crime.” Nevertheless I concur in the majority result, affirming the conviction, because the record does not disclose that the issue was properly raised at trial. Rather, the record indicates that defense counsel made a tactical decision not to put on an alibi defense, and that decision was not forced upon him by the ruling by the trial judge.

The only evidence of a pre-trial ruling on this matter, apparent from the record of this case, is the following remark by the trial judge:

The Court ruled that if the, if you brought up in defense specifically the issue of identity, then the State would be able under a proper set of facts, and certainly at this point the Court can’t imagine all of the matters in which it could have come up; but the Court ruled that the State would be entitled under a proper case and fit State versus Banks, and the reasoning there, the State would be permitted to introduce other crimes evidence. The Court never said or implied, at least certainly I don’t think I did, that if you put on any kind of a defense at all then the State would be entitled to other crimes evidence.

Thus, there was no ruling by the trial judge, as argued by defendant, that chilled defendant’s right to put on an alibi and effectively denied him a fair trial. Rather, based on the trial judge’s ruling that perhaps under certain circumstances that state might be allowed to introduce evidence of defendant’s “other crime,” defense counsel made a choice not to risk the possibility of the introduction of such evidence. However, that was a tactical choice by defense counsel and not a course of action based on a ruling by the trial judge. For this reason, I concur in the majority judgment affirming defendant’s conviction.

I likewise concur in the reversal of defendant’s sentence. In the instant case, defendant’s probation had not been revoked prior to his sentencing. Consequently, the judge, as trial judge for the instant offense, was without authority to order this sentence to be served with that possibly forthcoming after the hearing on the probation revocation. Since the judge hearing the probation revocation action will be the later judge to sentence the defendant, it is within that judge’s discretion to determine whether defendant’s sentences will run consecutively or concurrently.

For the foregoing reasons, I concur in the majority opinion insofar as it affirms defendant’s conviction and vacates his sentence and remands the case for resentenc-ing.

      . Assignments Number Three and Six have been abandoned.

      . According to defense counsel, if it were not for the court’s ruling, defendant would have taken the stand and denied participating in the drug transaction. Three witnesses would have testified that George Ester lived in the Cooper Road area and always took the 6:00 o’clock bus home and could not have been in the Sprague Street area around 8:30 P.M. because of lack of transportation. Susie Mae George would have testified that George Ester was not her boyfriend or “old man”.

      . State v. Prieur, 277 So.2d 126 (La.1973).

      . Defendant requested that the trial court charge the jury as follows:
      “The defendant is presumed to be innocent until each element of the crime necessary to constitute his guilt is proven beyond a reasonable doubt. The defendant is not required to prove that he is innocent. Thus, the defendant begins the trial with a clean slate. “The burden is upon the state to prove the defendant’s guilt beyond a reasonable doubt. In considering the evidence, you must give the defendant the benefit of every reasonable doubt arising out of the evidence or out of the lack of evidence. If you are not convinced of the guilt of the defendant beyond a reasonable doubt, you must find him not guilty.
      “A reasonable doubt is a fair doubt, based upon reason and common sense, and arising from the state of the evidence. Proof beyond a reasonable doubt is such as you would be willing to rely and act upon in the most important of your own affairs. A defendant is never to be convicted on mere suspicion or conjecture.
      “A reasonable doubt may arise not only from the evidence produced, but also a lack of evidence, for the burden is always upon the prosecution to prove the defendant guilty beyond a reasonable doubt on every essential element of the crime charged. A defendant has the right to rely upon failure of the prosecution to establish such proof. A defendant may also rely upon evidence brought out on cross-examination of witnesses for the prosecution.” (Tr. 48-47)

      . The status of defendant’s probation is not clear in the record; it is possible that the term had expired.


author: LEMMON, Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION v. Hilliard C. FAZANDE, II.
    No. 81-B-0913.
    Supreme Court of Louisiana.
    June 27, 1983.
    Rehearing Denied Sept. 1, 1983.
    Thomas 0. Collins, Jr., Wood Brown, III, New Orleans, Robert J. Boudreaux, Sam J. D’Amico, Baton Rouge, Carrick E. Inabnett, Monroe, Harold J. Lamy, New Orleans, Alfred S. Landry, New Iberia, Philippi P. St. Pee, Metairie, Roland J. Achee, Shreveport, Gerard F. Thomas, Natchitoches, Richard A. Deas, New Orleans, for relator.
    Charles E. Cotton, New Orleans, Ernest L. Jones, Harvey, for respondent.
   DISCIPLINARY PROCEEDINGS

LEMMON, Justice.

The Louisiana State Bar Association, through its Committee on Professional Responsibility, brought this disciplinary action against Hilliard C. Fazande, II, contending that he had violated disciplinary rules as detailed in eight specifications. The commissioner, after a hearing, found that four of the eight charges had been substantiated by the evidence and that respondent had violated DR 1 — 102(A)(1), (4) and (6), DR 6-101(A)(3), DR 7 — 101(A)(2) and DR 9-102. The commissioner recommended that the respondent be suspended from practice, but did not recommend a specific period.

The Bar Association concurred in the commissioner’s findings as to the violations and suggested a suspension of three years. Respondent filed exceptions to the commissioner’s report and now contends in this court that the evidence did not support the commissioner’s findings that he violated the disciplinary rules.

I.

In Specification No. 2, the commissioner found that Mrs. Sheila Williams retained respondent to obtain a legal separation in January, 1977, and paid him a fee of $450, plus costs of $98.15. Respondent appeared for Mrs. Williams at a rule for child support and alimony, but failed to obtain the separation or to enforce the support judgment. When Mrs. Williams was unable to communicate with respondent for six to eight months, she retained other counsel to complete the separation. Although Mrs. Williams requested that respondent return the fee, he has not yet returned any portion of it.

The Commissioner concluded that respondent had violated DR 6-101(A)(3) by neglecting a legal matter entrusted to him and DR 7-101(A)(2) by failing to carry out a contract of employment.

Respondent contends that all that remained in his representation was a final hearing and that he had done substantial work toward completion of the litigation before he was discharged. He points out that the $450 fee was quoted for an uncontested separation and that he did not increase the fee when the husband filed responsive pleadings. He further contends that Mrs. Williams demanded the return of the entire fee and refused to accept an offer (made through the committee in October, 1978) of a partial refund.

After reviewing the record, we conclude that the Bar Association proved by clear and convincing evidence that respondent accepted employment and a retainer from Mrs. Williams, neglected the matter by failing to respond to her calls or correspondence, failed to complete the employment, forcing the client to employ another lawyer to obtain the separation, and failed to refund any portion of the fee (or even offer to do so until contacted by the Bar Association).

II.

In Specification No. 3, the commissioner found that respondent had been retained in February, 1977, by Mr. and Mrs. Larry Coleman to handle an appeal involving their suspension from participation in a federal food stamp program. Respondent had entered the case in the district court, after two previous lawyers had withdrawn and the government had filed a motion to dismiss on the grounds that the period of suspension had already elapsed and the matter was moot. After the trial court granted the motion to dismiss, the clients agreed to pay respondent a $2,000 fee for the appeal and paid half of it in March of 1977. They had earlier paid him a $450 fee, which (they contended in the hearing) was for services in opposing the dismissal in the trial court. In October, 1978, after respondent had repeatedly told them he was waiting for a hearing date, the clients learned that the appeal had been dismissed in June, 1977, because of respondent’s failure to file a brief.

The commissioner concluded that respondent violated DR 6-101(A)(3) by neglecting a legal matter entrusted to him, resulting in the dismissal of the appeal. The commissioner further concluded that respondent had violated DR 1 — 102(A)(1), (4) by attempting to deceive his clients when he knew or should have known that the appeal had been dismissed.

Respondent contends that the commissioner erred in believing the unreliable testimony of the clients. He testified that they instructed him to dismiss the appeal after he discussed the possibility that criminal charges might still be brought against one of them in connection with the food stamp suspension. He further contends that the $1,000 payment was for his representation in the district court on the food stamp matter and that the other $450 fee was for his services in obtaining a new trial and acquittal for Mrs. Coleman on criminal charges in municipal court. He also points out that the clients never requested a refund.

After reviewing the record, we conclude that the Bar Association proved that respondent not only accepted a fee for an appeal and never completed the matter or returned the fee, but also deceived his clients by telling them he was waiting for a hearing date, when the appeal had been dismissed because of his failure to file a brief. As a result, the clients lost their rights to an appeal. Additionally disturbing was respondent’s blaming the delay on the courts, a cover-up which brought undeserved disrepute upon the judicial system. Finally, the fact that the appeal was dismissed involuntarily for failure to file a brief, and not voluntarily on respondent’s motions, refutes respondent’s version that his clients instructed him to dismiss the appeal.

III.

In Specification No. 5, the commissioner found that respondent, in handling a personal injury claim for two clients, guaranteed payment to the St. Bernard Medical Center of certain medical bills. After receipt of settlement funds in late 1976, respondent in August, 1977 issued two checks in partial payment of the bills, but the checks were returned because of insufficient funds. On June 23, 1979, the medical center wrote to respondent demanding payment under threats of prosecution. On July 23, 1979, the medical center contacted the Bar Association and executed an affidavit in preparation^for the filing of criminal charges. Respondent finally paid the bill in full.

The commissioner concluded that respondent had violated DR 9-102 by converting to his own use funds derived from his clients’ settlement. Additionally, the commissioner found that respondent had violated DR 1-102(A)(1), (4) by engaging in dishonest and fraudulent conduct in the issuance of the NSF checks.

Respondent contends that the commissioner improperly excluded evidence that he issued the checks to the St. Bernard Medical Center pursuant to an agreement with Dr. Emile Bertucci that the checks would be held until respondent approved their deposit, when his financial position improved. The agreement to hold the checks, according to respondent, was not misuse of a client’s funds, but was the equivalent of his payment of the medical bills and Dr. Ber-tucci’s making a personal loan to respondent. In respondent’s view, the agreement went awry when Dr. Bertucci’s son, the center’s financial manager, deposited the checks without knowing of the agreement. Respondent points out that the medical center (and not his clients) filed the complaint against him and that his clients were never contacted for payment. Respondent further argues that the letter agreement from Dr. Bertucci (which he attempted to introduce, but which was excluded as hearsay) supports his version of the facts and proves that he neither issued the checks with intent to defraud nor converted to his own use his clients’ funds.

Upon reviewing the record, we have examined Dr. Bertucci’s letters, which were proffered after being excluded from evidence. In October, 1976, Dr. Bertucci agreed to extend the time for settling the account. In September, 1977, Dr. Bertucci verified his agreement to hold the checks and explained that the checks had been deposited inadvertently. And in a December, 1981 letter addressed “To Whom It May Concern”, Dr. Bertucci indicated that he was not anxious to pursue the matter further and that he was not aware of any action for collection that had been taken beyond his personal authority.

Under the totality of evidence, we conclude that the Bar Association did not prove by clear and convincing evidence that the respondent issued the two checks with intent to defraud. However, while respondent’s temporary use of the funds and his delay (with Dr. Bertucci’s permission) in paying the medical bills did not truly constitute a conversion of his clients’ funds to his own use, the questionable procedure at least constituted a violation of DR 9-102(B)(4) by failing to promptly pay to the client (or to third parties as directed by the clients) funds which the clients were entitled to receive.

IV.

In Specification No. 7, the respondent agreed in April, 1977, to represent 31 men in a labor dispute at a charge of $200 per man (or a total fee of $6,200) as a nonrefundable retainer to be credited against a one-third contingency fee. Respondent was to appeal a district court decision and then seek further review, if necessary. Respondent received only $3,200 because some of the men decided not to participate in the appeal. The commissioner found that respondent did not file the appeal or any other pleadings on behalf of the remaining clients, nor did he respond to their attempts to communicate with him after April of 1977 or refund any of the fee.

The commissioner concluded that respondent had violated DR 7-101(A)(2) by failing to carry out a contract of employment and DR 1-102(A)(1), (4), (6) by engaging in conduct involving misrepresentation.

Respondent testified that he had quoted the clients a fee of $6,000 and had only been paid about $3,000. He asserted that he earned the partial fee by reviewing the voluminous file while awaiting payment of the balance of the fee, and he further testified that he notified the clients that their appeal lacked merit, offering to meet with them and explain further. He admitted, however, that he never directed a letter to the clients advising that he was not proceeding with the appeal.

After reviewing the record, we conclude the respondent collected a fee in excess of $3,000, but did not file the appeal or give appropriate notice to his clients that he was not going to pursue the matter, thereby causing them to lose their appeal rights. We further conclude that respondent failed to communicate and discuss the matter with his clients or to return the fee.

V.

In overall mitigation, respondent argues that all four complaints were lodged within a short period of time and were the first against him since he began the practice of law in 1971. He further points out that he gave up his private practice in 1979. Finally, he argues that his professional conduct did not fall below the minimum standard required by the disciplinary rules and that suspension is unwarranted by the facts..

The purpose of attorney disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain appropriate standards of professional conduct in order to safeguard the public, preserve the integrity of the legal profession, and to deter other lawyers from engaging in violations of the Code of Professional Responsibility. Louisiana State Bar Ass’n. v. Causey, 393 So.2d 88 (La.1980). We agree with the commissioner’s findings that respondent violated DR 6-101(A)(3) by neglecting legal matters entrusted to him, DR 7-101(A)(2) by failing to carry out contracts of employment, and DR 1-102(A)(4) by engaging in misconduct involving misrepresentation. Failing to perform legal services for which an attorney has been paid, allowing a client to lose his right of appeal because of inaction, and misrepresenting the status of litigation by blaming the judicial system for delays are serious violations which warrant suspension from practice.

Accordingly, it is ordered that Hilliard J. Fazande, II be suspended from the practice of law in the State of Louisiana for a period of thirty months, effective upon the date of the finality of this decree. All costs of this proceeding shall be paid by the respondent.

      . The text of the disciplinary rules are as follows:
      “DR 1-102. Misconduct.
      “(A) A lawyer shall not:
      “(1) Violate a Disciplinary Rule.
      “(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

      “(6) Engage in any other conduct that adversely reflects on his fitness to practice law. “DR 6-101. Failing to Act Competently.
      “(A) A lawyer shall not:
      “(3) Neglect a legal matter entrusted to him.
      “DR7-101. Representing a Client Zealously.
      “(A) A lawyer shall not intentionally:

      “(2) Fail to carry out a contract of employment entered into for professional services, but he may withdraw as permitted under DR2-110, DR5-102, and DR5-105.
      “DR 9-102. Preserving Identity of Funds and Property of a Client.
      “(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
      “(1) Funds reasonably sufficient to pay bank charges may be deposited therein.
      “(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
      “(B) A lawyer shall:
      “(1) Promptly notify a client of the receipt of his funds, securities, or other properties.
      “(2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
      “(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
      “(4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.”

      . The Bar Association initially excepted to the commission’s findings that Specification No. 8 had not been proved, but abandoned that exception in argument before this court.

      . The clients were apparently mistaken about the amount they paid respondent for his services in the district court on the food stamp matter. The clients introduced two checks, one dated October 18, 1976 in the amount of $250 and the other dated August 26, 1977 in the amount of $200. The first check corresponds with the date of respondent’s entry into the food stamp litigation in the district court in September, 1976, and the second corresponds exactly with the date of Mrs. Coleman’s acquittal in municipal court. Nevertheless, the fact remains that respondent’s own letter, showing that the $1,000 was a partial payment on his fee for the appeal, was not refuted by respondent’s evidence of other uncompensated services.

      . Because of the nature of the hearing, and because the complaining witness (Dr. Bertuc-ci’s son) testified that he did not personally conduct the discussions of payment of the bills with respondent or his wife, we have considered Dr. Bertucci’s letters, in the interest of justice, as supplemental to his son’s testimony.


text:
    STATE of Louisiana v. Robert Lee WILLIE.
    No. 81-KA-0242.
    Supreme Court of Louisiana.
    June 27, 1983.
    Rehearing Denied Sept. 1, 1983.

      William J. Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion Farmer, Dist. Atty., William R. Alford, Jr., Abbott Reeves, Margaret A. Coon, Asst. Dist. At-tys., for plaintiff-appellee.
    S. Austin McElroy, Covington, Thomas Ford, Franklinton, for defendant-appellant.
   WATSON, Justice.

Defendant, Robert Lee Willie, was convicted of first degree murder and sentenced to death. On initial appeal his conviction was conditionally affirmed; the sentence vacated; and the case remanded: (1) to determine whether a printed note found near the murder scene created a reasonable doubt about his guilt; and, if not, (2) to hold a new penalty hearing by a jury, as provided by LSA-C.Cr.P. art. 905.1(B). State v. Willie, 410 So.2d 1019 (La.1982).

The facts of the crime are set out in the original opinion as follows:

“On May 28, 1980, at approximately 4:30 a.m., Robert Lee Willie and Joseph Vac-caro offered a ride to the victim, Faith Hathaway, outside of the Lakefront The-atre, a disco in Mandeville, Louisiana. Miss Hathaway, an 18 year old woman, had been celebrating her last night as a civilian before entering the United States Army. Instead of taking the victim to her home in St. Tammany Parish, as she had requested, Willie and Vaccaro took Hathaway to Fricke’s Cave, a heavily wooded, secluded gorge south of Frank-linton in Washington Parish. Willie or Vaccaro, or both, raped the young woman there. Afterwards, one of the men repeatedly stabbed the victim in the throat while the other held her hands. Hathaway’s clothes and purse were found approximately one hundred fifty yards from her body on June 1st, 1980. Her body was discovered on June 4, 1980. “On June 3, 1980, Willie and Vaccaro were arrested in Hope, Arkansas for unrelated crimes of aggravated rape, aggravated kidnapping and attempted murder committed against persons other than Hathaway. On June 10, 1980, both defendants admitted to police officers that they seized Hathaway but each accused the other of raping her and slashing her throat.” 410 So.2d at 1023.

PROCEEDINGS ON REMAND

The trial court conducted an evidentiary hearing in regard to the note found near the scene of the crime. The crime occurred at Fricke’s Cave, a “big wash” filled with trees, brush and swamp. (Transcript on Remand, Vol. II, p. 125) After some of Faith Hathaway’s clothes were located on a Monday, three private individuals aiding in the search for her body found the note on Tuesday. The body was discovered on Wednesday “three or .four hundred feet south” of the clothes “down toward the swamp”. (Transcript on Remand, Vol. II, p. 126) The note is an unsigned and printed message on a scrap of paper which reads “you never find her”. Tests revealed no fingerprints. Willie denied, printing the note. Willie’s counsel did not engage a handwriting expert, because investigation indicated it would be futile. Vaccaro is illiterate. There was no evidence: (1) connecting the note with the crime or Willie; (2) showing who wrote the note; or (3) when it was left.

The trial court, after hearing the evidence, found that the note had no significance and did not create a reasonable doubt about Willie’s guilt.

Immediately thereafter, the trial court commenced a new sentencing hearing. A jury was impaneled and evidence was presented by both the state and the defense. Following arguments by counsel and instructions by the court, the jury retired to deliberate. The jury found two aggravating circumstances: (1) that the defendant was engaged in the perpetration or attempted perpetration of aggravated rape; and, (2) that the offense was committed in an especially heinous, atrocious or cruel manner. The recommendation of the jury was that the defendant be sentenced to death.

On appeal from the proceedings on remand, the defendant assigns eight errors by the trial court.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the court erred in not allowing him to call the original twelve jurors to establish what effect the note might have had on their decision.

The murder occurred in Fricke’s Cave, a large gorge. The wadded up note was discovered some distance from the actual murder scene at the bottom of a steep embankment leading to the cave area. The note was found the day before the victim’s body was located. Nothing was produced at the hearing which connected defendant or the crime with the note.

There is no authority for recalling jurors to examine them as to the effect some newly discovered article of evidence might have had upon them. On the contrary, the statutory law specifically prohibits impeachment of a verdict by a member of the jury.

“No juror, grand or petit, is competent to testify to his own or his fellow’s misconduct, or to give evidence to explain, qualify or impeach any indictment or any verdict found by the body of which he is or was a member; but every juror, grand or petit, is a competent witness to rebut any attack upon the regularity of the conduct or of the findings of the body of which he is or was a member.” LSA-R.S. 15:470.

The ruling of the trial court was correct. There is no merit to this assignment.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues that the court erred in not considering the possible effect the note might have had at the sentencing phase of the original trial. The ruling of the trial court was precise:

“From my understanding of the ruling of the Supreme Court in this particular case, it is up to this court to decide whether from the evidence presented a reasonable doubt would exist as to the guilt of the accused based upon its note and its effect that it might have on a jury. Based upon the evidence which the court has heard, based upon the evidence the court heard at the original hearing, the court does not think that the note adds anything significant one way or the other to the case of the defendant or, for that matter, to the case of the state. The court, therefore, deems it to be insignificant to not in any way create any reasonable doubt as to the guilt of the accused.” Transcript on Remand, Vol. II, pp. 36-37.

The trial court was correct in its appreciation of the remand order: the sentence was set aside for other reasons. There was no requirement that the trial court consider what impact the note might have had on the jury at original sentencing.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant contends that the trial court erred in not defining for the jury the phrase “in an especially heinous, atrocious or cruel manner”. LSA-C.Cr.P. art. 905.4.

In instructing the jury, the trial court noted that the state relied on two aggravating circumstances. The first, aggravated rape, was defined for the jury but the second, that the crime was committed “in an especially heinous, atrocious or cruel manner” was not defined.

Defendant relies principally on State v. Sonnier, 402 So.2d 650 (La.1981). While Sonnier indicates that it is desirable for the trial court to instruct the jury about what constitutes a heinous crime, the square holding of that case does not mandate such an instruction. When the evidence reflects that, in fact, there was torture, or the pitiless infliction of unnecessary pain on the victim, the jury has correctly interpreted the meaning of this aggravating circumstance.

Faith Hathaway was taken in the early morning hours on a lengthy ride, held prisoner, disrobed, forced to walk naked and blindfolded down a steep gorge, raped with the use of sufficient force to damage the skin on the inside of her thighs and to tear her vaginal region, held with her legs in a spread eagle position and her throat slashed by repeated knife thrusts. The evidence in defendant’s own statement reflected that the killing took place as follows:

“.... Joe [Vaccaro] made her lay on the ground and then got his big old knife now, and he just cut her throat and he just started jugging her in the throat with it man ... Just jugging her, I mean jugging her.
“Qes: How many times do you think he stabbed her?
“Ans: I don’t know man ... She had her head lying in his lap ... He had her by the hair ... He kept saying... “Qes: What were you doing.
“Ans: Freaking out man ... He kept saying ‘this whore ain’t dead yet’. I kept telling him come on man come on. He just kept jugging her man ...” Original Hearing, Vol. Ill, p. 385.

The defendant’s description of the killing and repeated “jugging” does not comport with the evidence in one respect. The pathologist, Dr. Paul McGeary, testified that Faith Hathaway was found lying on her back with her legs spread as wide as possible and the arms extended over her head. The doctor stated that she must have been held in this position while dying and probably to the point of death. Otherwise, her legs would not have remained extended and her arms would not have been held over the head; there is a natural tendency to draw the limbs closer to the body and curl up in a fetal position. The pathologist confirmed that injuries to the inner thighs, the genital area and the vaginal opening indicated forceful rape prior to death. Faith Hathaway also had a defensive wound on the right hand. Dr. McGeary testified that the victim would have required some minutes to die as a result of the cut throat and said her death would have been a painful one. A chain and medallion were embedded in her neck.

The jury correctly concluded that the crime was a heinous one; it involved the pitiless infliction of unnecessary pain on the victim. Since the jury’s finding is supported by the evidence, failure to instruct the jury as to the definition of especially heinous, atrocious or cruel has no significance.

Further, since there was clear proof of one aggravating factor found by the jury, any error in charging the jury as to another factor is harmless. State v. Narcisse, 426 So.2d 118 (La.1983).

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant argues that the trial court erred in not giving a requested special charge as follows:

“If you find that the defendant did not actually murder the deceased but was merely a principal to the murder, then you cannot return a verdict of death.”

A requested special charge shall be given, if it is not included in the general charge, and if it is wholly correct and pertinent. LSA-C.Cr.P. art. 807.

The requested special charge is not wholly correct. A principal in Louisiana who aids and abets in the commission of a first degree murder may be sentenced to death provided he had specific intent to kill or to inflict great bodily harm on the victim. State v. Sonnier, supra; Enmund v. Florida, -U.S.-, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).

Therefore, the assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER FIVE

Defendant contends that the trial court erred in imposing an excessive sentence. This argument turns on the fact that co-defendant Yaccaro was also found guilty of first degree murder but received life imprisonment without benefit of parole, probation, or suspension of sentence.

Because a co-defendant received a less severe sentence, Willie’s sentence is not ipso facto excessive. Co-defendants do not have to receive identical sentences. State v. Jessie, 429 So.2d 859 (La.1983); State v. Labure, 427 So.2d 855 (La.1983); State v. Rogers, 405 So.2d 829 (La.1981). Before imposing the death penalty, a jury must consider both the crime and the particular offender. State v. Sawyer, 422 So.2d 95 (La.1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). A death sentence is not necessarily disproportionate because one defendant in a factually similar case received life imprisonment. State v. Taylor, 422 So.2d 109 (La.1982). While Willie may have been less culpable than his criminal partner, there is nothing to indicate that his role was a subsidiary one. Compare State v. Sonnier, 380 So.2d 1 (La. 1979).

This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER SIX

Defendant argues that the trial court erred in imposing a sentence that was cruel and unusual in violation of the Constitutions of the United States and the State of Louisiana.

Because defendant is presently serving three consecutive life sentences in federal prison and his date of discharge falls in the second half of the twenty-first century, it is argued that defendant could not face execution until the year 2030 and the inordinate length of time between sentence and execution make the sentence unconstitutionally cruel and unusual. However, there is nothing to bar the federal authorities from returning Willie to state custody at an earlier date. Causey v. Civiletti, 621 F.2d 691 (5 Cir., 1980).

This assignment lacks merit.

DEATH SENTENCE REVIEW

This court is required to review every sentence of death for excessiveness. LSA-C.Cr.P. art. 905.9 provides as follows:

“The Supreme Court of Louisiana shall review every sentence of death to determine if it is excessive. The court by rules shall establish such procedures as are necessary to satisfy constitutional criteria for review.”

Three determinations are mandated by Rule 905.9.1:

“Every sentence of death shall be reviewed by this court to determine if it is excessive. In determining whether the sentence is excessive the court shall determine:
“(a) whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors, and
“(b) whether the evidence supports the jury’s finding of a statutory aggravating circumstance, and
“(c) whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”

A Uniform Capital Sentence Report with an attached pre-sentence investigation report has been submitted by the trial court. According to these reports, Robert Lee Willie is a twenty-five year old white male who has never been married and has no children. He has a low, normal I.Q. of 81. Willie has a minimal employment record, but a substantial history of criminal activity including simple burglary, motor vehicle violations, criminal damage, aggravated escape, conspiracy to kidnap, kidnapping and second degree murder. At the present time, Willie is in the custody of the federal prison system serving a number of life sentences arising from the kidnapping charges. Defendant is also under indictment for killing a police officer in 1978.

The pre-sentence report correctly concludes that Willie constitutes a serious and clear threat to society.

PASSION, PREJUDICE OR ARBITRARY FACTORS '

There is no indication or contention that passion, prejudice or any arbitrary factor entered into the death sentence given defendant.

AGGRAVATING CIRCUMSTANCES

The two aggravating circumstances found by the jury were that the crime was committed during the perpetration or attempted perpetration of aggravated rape and that the crime was committed in an especially heinous, atrocious or cruel manner. The evidence presented at the sentencing hearing, particularly the statement of the defendant and the testimony of the pathologist, tend strongly to support both circumstances. The victim was unquestionably raped. She was taken, blindfolded and naked, to a remote area where, while spread-eagled on the ground, her throat was repeatedly slashed by one of the perpetrators while the other held her legs spread until she died.

While any taking of life may be described as heinous, the facts of this crime place it in the category contemplated by the legislature when it provided that especially heinous, atrocious or cruel homicides subject the offender to the possibility of capital punishment.

PROPORTIONALITY

The Twenty-Second Judicial District is comprised of two parishes, Washington and St. Tammany. Defendant’s trial was conducted in Washington Parish but the sentence review memorandum submitted by the state includes information concerning first degree murder cases in both parishes. The memorandum includes seventeen cases from St. Tammany Parish and fourteen from Washington Parish.

In only two other cases, State v. Kirkpatrick and State v. Clark and Mikell, have death sentences been imposed. Kirkpatrick was tried in St. Tammany Parish in 1983 and his case has not yet had appellate review. The death sentences of Roy Clark, Jr., and Brent Mikell were vacated and they were sentenced to life imprisonment because their death sentences were imposed under an unconstitutional statute. State v. Clark, 340 So.2d 208 (La.1976), cert. denied 430 U.S. 936, 97 S.Ct. 1563, 51 L.Ed.2d 782.

The only case with facts somewhat similar to those here is State v. Moran, 370 So.2d 532 (La.1979), a St. Tammany prosecution. Moran forced the victim into his vehicle, drove her from New Orleans to Slidell, raped, stabbed and choked her. The victim actually died of drowning. Moran was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. However, the defendant was a person with mental problems, and the jury may have concluded that his responsibility was diminished by that fact.

Considering the sentence review memo-randa submitted by both the state and the defendant, and the paucity of similar cases, the sentence imposed on the defendant, Robert Lee Willie, cannot be said to be disproportionate.

CONCLUSION

For the reasons assigned, the conviction and sentence of the defendant, Robert Lee Willie, are affirmed.

AFFIRMED.

      . Although assignments one, two and four were not argued, they will be considered because this case involves a death penalty. State v. Berry, 391 So.2d 406 (La.1980).

      . Additionally, the note could not have had any sentencing significance to the jury.

      . “Jugging” in street talk usually refers to an upward slashing motion with a knife.

      . According to Vaccaro, Willie was the one who raped and killed Faith Hathaway.

      . Although that offense, the murder of Dennis Hemly, was committed prior to the instant offense, Willie was not convicted until after the current proceedings.