
    STATE of Louisiana v. Andrew A. SAVOIE.
    No. 63295.
    Supreme Court of Louisiana.
    March 14, 1979.
    Alvis J. Roche, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard Knapp, Dist. Atty., Gregory D. Lyons, Alcide Gray, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

TATE, J., concurs.

There is some evidence of gross negligence. Insofar as the appellant urges that an unconstitutional presumption of negligence (by reason of statutory violation) was used against him, Hammontree v. Phelps, 462 F.Supp. 366 (W.D.La.1978), the issue is not before us because the judge was not required to instruct himself as to the law, and the record affords us no basis for review of this issue.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

Because the record does not reveal whether the basis for finding the defendant guilty of negligent homicide was independent of the statutory provision that the violation of a law “. . . shall be considered only as presumptive evidence of . ” the criminal negligence which is an essential element of the crime of negligent homicide I must dissent from this af-firmance of Savoie’s conviction and sentence. See my dissent in State v. Hammontree, 363 So.2d 1364 (La.1978) and the opinion of the federal district court expressing consonant views and granting Hammontree habeas relief on the basis of its finding the presumption created by R.S. 14:32 unconstitutional. Hammontree v. Phelps, 462 F.Supp. 366 (W.D.La.1978), appeal docketed, No. 79-1307 (5th Cir. Feb. 7, 1979).  