No. 95-KA-2307 Precedential Processed

State v. Powdrill

Louisiana Supreme Court · Filed December 30, 1996 · 694 So. 2d 892

Also decided on this docket: La., November 25, 1996 684 So. 2d 350

Cited by

Nancy Anderson; Joy Manguno; Jayme Songy, as Curator for Malvina Songy; And Janice Verdin, … La. Ct. App. 5th Cir. 2022
Tamekia Capers v. NorthPro Properties Management, LLC La. Ct. App. 2d Cir. 2021
Winkle v. Relay Administration Board 91 So. 3d 300 La. 2012
Daigle v. City of Shreveport 78 So. 3d 753 La. Ct. App. 2d Cir. 2011
Covington v. McNEESE STATE UNIVERSITY 32 So. 3d 223 La. 2010
In Re Benge 24 So. 3d 822 La. 2009
In Re Miller 949 So. 2d 379 La. 2007
State v. Loyden 899 So. 2d 166 La. Ct. App. 3d Cir. 2005
State of Louisiana v. Booker Earl Loyden La. Ct. App. 3d Cir. 2005
Younce v. Pacific Gulf Marine, Inc. 817 So. 2d 255 La. Ct. App. 5th Cir. 2002
Guidry v. First Nat. Bank of Commerce 755 So. 2d 1033 La. Ct. App. 4th Cir. 2000
State v. Marcantel 756 So. 2d 366 La. Ct. App. 3d Cir. 1999

Opinion text

CALOGERO, Chief Justice, concurring in rehearing denial. The State concedes the unconstitutional feature of RS 51:712(A)(2) in the criminal context, in that it puts the burden on the defendant to prove that he did not know of material misstatements or omissions surrounding the offer or sale of a security. The State wants us to strike that unconstitutional portion and allow the statute to stand. Coupled with their argument is their suggestion that there is some ambiguous language within the opinion concerning whether the statute requires a “willful” intent. The State indicates that in one place in the opinion “willfulness” is recognized as an essential element and that in another place in the opinion it is not. Whether or not the State is correct about this makes no difference. RS 51:712(A)(2) does not itself include “willfulness,” and whether or not a “willfulness” element is read into the statute does not save it. The statute makes sense in the criminal context only if one includes the mens rea element of knowledge. And this element is only expressed in the portion of RS 51:712(A)(2) that the relator would have us sever. Therefore, by severing the burden-shifting portion of RS 51:712(A)(2), we would be left without proper guidance regarding the mens rea element necessary for commission of guidance regarding the mens rea element necessary for commission of the crime. I therefore concur in the majority’s denying the rehearing application.