The opinion
SANDERS, Justice
(dissenting).
Bill of Exceptions No. 9 raises a serious question concerning the admission into evidence of defendant’s inculpatory statement.
Article 768 of the Louisiana Code of Criminal Procedure provides:
“If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.”
*743 The Article is explicit. To make an inculpatory statement admissible at the trial, the State is required to give written notice to the defendant before its opening statement. See State v. Rodgers, 251 La. 953 , 207 So.2d 755 .
In the present case, the State gave no written notice to the defendant before its opening statement. The reason for the omission need not be explored. We can accept the State’s testimony that it was an oversight. During the course of the trial, after several witnesses had been examined, the State was permitted to then give written notice and introduce the inculpatory statement.
The majority holds that the trial judge is vested with discretion as to the admission of the inculpatory statement and .properly admitted it. Alternatively, the majority holds that, if the statement were improperly admitted, it was not reversible error, because the defendant suffered no loss of “constitutional rights.” I disagree.
As is evident from the use of the word shall, Article 768 is mandatory. See LSA-C.Cr.P. Art. 5. In the absence of proper notice, no discretion is given the trial judge as to the admission of an inculpatory statement.
Article 769 does contain a provision for discretion. The majority, in my opinion, erroneously transposes this discretion to Article 768.
I conclude the trial judge erroneously admitted the inculpatory statement. Hence, the only question remaining is whether or not the erroneous admission constitutes reversible error.
Article 921 of the Louisiana Code of Criminal Procedure provides:
“A judgment or ruling shall not be reversed by an appellate court on any ground unless in the opinion of the court after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.”
Under this article, the conclusion of the majority that the ruling deprived defendant of no constitutional rights does not end the inquiry. Reversal is also warranted when there is a substantial violation of a statutory right. In my opinion, Article 768 sets forth a significant statutory right: the right to advance written notice of an inculpatory statement. The reason for notice is to permit the defendant to properly prepare to meet the issues that may arise from an attempt to use the statement against the defendant at the trial.
In the contested statement, the defendant used language that the jury could well con *745 strue as an admission of the robbery. I conclude, therefore, that the statement prejudiced the defendant in the jury’s consideration of the case. See State v. Silsby, 176 La. 727 , 146 So. 684 ; State v. Jones, 230 La. 356 , 88 So.2d 655 ; State v. Murphy, 154 La. 190 , 97 So. 397 ; Hebert, Reversible Error in Louisiana, 6 Tul.L.Rev. 169, 189.
The charge against the defendant, armed robbery, is one that is especially abhorrent. Yet, it is highly important that the Louisiana Code of Criminal Procedure be faithfully applied. A substantial violation of defendant’s rights has occurred. Hence, I would order a new trial.
For the reasons assigned, I respectfully dissent.