¶1(dissenting).
¶2The Court rules that in a nonjury trial, the State was not required to give advance notice under Article 768 of the Code of Criminal Procedure of its intent to use a confession and inculpatory statements of the defendants.
¶3Article 768 provides:
If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant *543in 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.
¶4By its clear, unambiguous terms Article 768 is not limited to nonjury trials. It is a general provision applicable to all trials, jury and non jury alike. The reason which supports the requirement for early advice in writing in a jury trial is equally pertinent in nonjury trial,s the reason being that the defendant cannot properly prepare to meet the issue unless he is apprised in advance that the State intends to use the confession or inculpatory statement. Failure to furnish the early advice makes the confession or inculpatory statement inadmissible. There is no qualification to this requirement.
¶5I am unaware of any like rule, statutory or otherwise, concerning admissibility of evidence which is applicable to a jury trial and inapplicable to a nonjury trial.
¶6State v. Himel, 260 La. 949, 257 So.2d 670 (1972), upon which this decision rests was.rendered by a divided court and should be reconsidered. The decision has the effect, in. nonjury triáis, of doing away with both. the opening statement and the early advice in writing that a confession or inculpatory statement will be used. The effect is to permit the State to surprise the defendant in a nonjury trial but not in a jury trial.
¶7The logic of this result escapes me for a defendant convicted and imprisoned as a result of a nonjury trial is as surely deprived of his liberty as one convicted and imprisoned as a result of a jury trial. The difference is only a question of degree. See dissents in State v. Himel, supra, and State v. Lacoste, 256 La. 697, 237 So.2d 871 (1970).
¶8My criticism of the decision in State v. Himel centers upon the proposition that the major premise upon which it is grounded is fallacious. That opinion asserts that Article 768 was enacted to avoid the prejudicial effect of mentioning a confession or inculpatory statement in the opening statement to the jury as was formerly required. I suggest that this reason is simply a side effect of the right to receive advice that a confession or inculpatory statement will be used. The basic, fundamental right to the early advice has not been abrogated by Article 768. To the contrary, the right to early advice has been strengthened and broadened. The effect of Article 768 is to require that defendant receive written advice at an earlier stage of the trial than formerly when it was necessary to mention in the opening statement that a confession or inculpatory statement would be used.
¶9Insofar as nonjury trials are concerned, this important right of early notice has *545been abolished by the decision in State v. Himel and the decision in the instant case.
¶10I respectfully dissent.
¶11PER CURIAM.
¶12As noted in the petition for rehearing, this Court erroneously described the motion to suppress as oral. The characterization arose from the circumstance that the motion did not appear in the appellate record. Actually, defense counsel moved orally for the Court to hear a written motion to suppress tendered on the morning of the trial. Nonetheless, our holding that the trial judge did not abuse his discretion in declining to entertain the belated motion is correct. See LSA-C.Cr.P. Art. 703.
¶13The petition for rehearing is denied.