(concurring in part and dissenting in part).
Thorn B. Himel, Cyril Geary and Timothy N. Kennedy were charged by bill of *967information with simple battery of Steven Brian. La.Crim.Code art. 35. Kennedy was granted a continuance, and, upon motion of the State, a severance was ordered; after which defendants Himel and Geary were jointly tried before the judge. They were found guilty; and a fine and jail sentence were imposed, the jail sentence being suspended and defendants were placed on probation for one year. Applications for writs were filed in this Court to review the conviction and sentence under Article VII, Section 10, of the Constitution. Writs were granted, 258 La. 546, 246 So.2d 858 (1971), and the case is before us under our supervisory jurisdiction.
Defendants and the victim of the battery were students at Louisiana State University in Baton Rouge. In the early morning hours of September 20, 1970 defendant Geary bumped into one Mike Harder, a visiting football player, in the hallway of the Kirby-Smith dormitory on the University campus. Harder was accompanied by a number of friends. Words were exchanged between Geary and Harder, and, from this slight provocation, Harder proceeded to strike Geary repeatedly with his fists, kicking him when he fell to the floor. All the while Harder’s friends looked on, not intervening or otherwise assisting Geary. When they withdrew from the encounter, Geary proceeded to his cousin Thorn Himel’s dormitory room. When Himel learned what had transpired, he called several of his friends for their help, and together they set off with Geary through the dormitory in search of Harder. Beginning at the site of the altercation between Harder and Geary, Himel and his companions looked into several rooms for Harder. Finally they entered the room where Steve Brian and his roommate were asleep. Mistaking Brian for Harder, they threw a sheet over his head and proceeded to beat him about the head and body, dragging him to the floor and kicking him as he lay there. Brian’s roommate was awakened by the melee and demanded that the attackers lay off. Himel and his accomplices then departed.
It was later ascertained by Himel and Geary, and the others involved with them, that they had mistaken Brian for Harder. Realizing the error, Himel, Geary and the others went to Brian the next day and extended their apologies, explaining that they believed him to be Harder at the time of the battery. Himel and Geary were later called to the campus security office and questioned by Security Officer Luke McCoy, at which time they made inculpatory statements.
I.
At the outset we are urged to grant a motion by the State to recall the writs as improvidently issued. The motion rests upon the assertion that the application for writs was not timely filed. Supporting al*969legations set forth that on April 2, 1971 when defendants declared their intention to apply to this Court, the trial judge granted fifteen days to lodge their application here. The application was not filed within the time fixed, and, it is further alleged, no extension of time was granted.
The allegation that no extension of time was granted is incorrect. A letter from the trial judge, filed in the record, recites that he did grant an extension of time at the request of defense counsel; however, through inadvertence no formal minute entry was made of this action. Thereafter, the application was timely filed within the extended return date.
Since an extension of time for filing the application was obtained by defense counsel, and the failure to enter this action of the court in the minutes has not been assigned to his fault, the motion to recall is without merit. La.Code Civ.P. art. 2201; Rule XII, Sec. 2, La. Supreme Court Rules.
I concur with the majority on this issue.
II.
During trial the State called the victim Brian to the stand to testify for the prose-. cution. He testified that Geary and Himel came to his room the day following the fracas and apologized, saying they were sorry about the beating. According to Brian, Himel admitted at the time that he ' had struck Brian.
Prior to this testimony, defense counsel objected that the State was attempting to elicit evidence of a confession or inculpatory statement without having made an opening statement and without furnishing defense counsel with written notice that a confession or inculpatory statement would be used as required by Articles 767 and 768 of the Code of Criminal Procedure.1
The objection was overruled and evidence of the inculpatory statements or confessions was admitted. Similar objection and ruling were made when the State questioned campus Security Officer McCoy concerning the admission made by Geary and Himel in his office. Bills of exceptions were reserved in each instance.
The articles upon which the objections are founded prohibit the State from adverting in the opening statement to a confession or inculpatory statement made by defendant; and require that defendant be advised in writing prior to the opening *971statement if a confession or inculpatorystatement will be used in evidence. La. Code Crim.Proc. arts. 767, 768. This much is clear. But the matter does not rest there, for an issue is raised by the State’s contention that these requirements pertain to jury trials and are inapplicable tc this bench trial of misdemeanors.
The Opening Statement
Under Title 15, Section 333 of the Revised Statutes, in effect prior to the enactment of Article 765 of the present code, which became effective January 1, 1967, it was understood that it was only in cases where the trial was before a jury that the district attorney was required to make an opening statement. State v. Florane, 179 La. 453, 154 So. 417 (1934). See also State v. Jones, 230 La. 356, 88 So.2d 655 (1956), and State v. Smith, 212 La. 863, 33 So.2d 664 (1948). This result was reached because Title 15, Section 333 of the Revised Statutes setting forth the “Steps in trial” was limited to jury trials and no codal direction existed relating to non-jury trials. The procedure for bench trials was, then, left largely to the trial judge influenced by local practices and customs.
Article 765 of the new code, however, which states the “normal order of trial,” is not limited to jury trials for the reason, as Professor Bennett states, “orderly and predictable proceedings are” now considered “desirable in all trials.” He also observes, “At a time when all members of the bar are faced with the responsibility of defending indigent defendants, it is particularly important that the rules governing the trial of criminal cases he stated as fully and clearly as possible.” Bennett, The 1966 Code of Criminal Procedure, 27 La.L.Rev. 175, 215 (1966).
Thus when Article 765 provides for “The opening statements of the state and the defendant” and provides that “A defendant may waive his opening statement” without according a like option to the State, and without a special reference to whether these requirements relate to jury or non-jury trials, the clear meaning which emerges from this article is that an opening statement is required by the State in all cases — jury and nonjury alike. The article (765 [8]) makes special reference to the verdict in jury cases and the judgment in nonjury cases, clearly establishing an intent that the article shall apply to jury and nonjury cases. Otherwise the generality of the words of Article 765 denies any attempt to restrict their application to jury trials alone.
In support of this position it is relevant to note that variations in trial procedure authorized in Article 1632 of the Code of Civil Procedure are not permitted in criminal cases. It has been said that to allow trial procedure variations in criminal trials would be “dangerous”. Nevertheless, the comments to Article 765 of the Code of *973Criminal Procedure point out that “Variations can occur, of course, if defendant does not object, but the court should not have the power to order variations over the defendant’s objections.”
Some views expressed in our cases indicate that the opening statement is principally designed to benefit the defendant, for it enables him to prepare his defense. State v. Jones, 230 La. 356, 88 So.2d 655 (1956); State v. Silsby, 176 La. 727, 146 So. 684 (1933); State v. Ducre, 173 La. 438, 137 So. 745 (1931). Article 766 of the Code of Criminal Procedure directs that “The opening statement of the state shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge.” Following is the prohibition in Article 769 against adverting in any way to a confession or inculpatory statement made by the defendant. The opening statement serves to fix the time for furnishing written advice that a confession or inculpatory statement will be used against the defendant, otherwise it cannot be used in evidence. La.Code Crim.Proc. art. 768. By the terms of Article 768 the opening statement serves to fix the scope of the evidence the State will be permitted to introduce. These requirements are of vital importance to the defense in any trial, jury or nonjury. The function of the opening statement, therefore, is not confined to informing the jury and it serves a definite essential purpose in all trials. Note, 3 La.L.Rev. 238 (1940).
From these codal articles and our former jurisprudence it follows in reason and logic that defendant may demand that an opening statement be made in any trial. The right, however, like others, may be waived. In this State it is waived by failing to timely object when it is not given. State v. Shearer, 174 La. 142, 140 So. 4 (1932), and State v. Brown, 180 La. 299, 156 So. 359 (1934). Here defendants made no objection to the failure to make an opening statement, and it may be considered waived.
I am aware of the fact that in State v. Didier, 259 La. 967, 254 So.2d 262, we recently expressed a different view concerning the requirement of an opening statement in a bench trial. However, the result in that case on this issue could be considered correct, for defendant did not timely object to the failure to make the opening statement, waiting to voice objection after the first witness was sworn. Thus a waiver took place. State Shearer, 174 La. 142, 140 So. 4 (1932). Although I subscribed to the Didier opinion, after further reflection, I cannot reconcile the expressions in the Didier Case on the requirement for an opening statement in a bench trial with my present view.
The majority asserts that Article 761 of the Code of Criminal Procedure fixes the *975commencement of the trial when the first witness is sworn in a bench trial and because of this the opening statement which precedes the presentation of evidence under Article 765 is not part of the “normal order of trial.” This conclusion is not warranted from a reading of the articles on trial procedure. Article 761 is an enactment designed to fix definitely the point of beginning of the trial in order that it may be ascertained when jeopardy begins (La. Code Crim.Proc. art. 592), when a motion to quash must be filed (La.Code Crim.Proc. art. 535) and to measure limitations for the prosecution (La.Code Crim.Proc. art. 578).
Because the specific provision of Article 761 fixed a point at which jeopardy begins, or the point from which the time for filing a motion to quash must be calculated, or the time from which the limitation for the prosecution is measured, does not mean that the Code could not, as it does in Article 765, provide, as part of required procedure, for an opening statement by the prosecution prior to the commencement of the trial. To refer to ouch an opening statement as part of the “normal order of ■trial” in the broad sense in which the word “trial” c.an be used does not render the •requirement unenforceable.
What the majority has done by its strained interpretation, is to eliminate from the requirements of a bench trial the reading of the indictment, the reading of defendant’s plea on arraignment and the opening statement. This leaves in effect only the requirement of Article 765 setting forth the order for presentation of the evidence, the order of argument and the announcement of the judgment applicable to bench trials, for I suppose the reasoning of the majority would also eliminate the Court’s charge as applicable to jury trials only. Of course, the discharge of the jury in jury cases is inapplicable to bench trials. This emasculation of Article 765 leaves one to wonder what was accomplished by the codal article, except a statement of the obvious.
Undoubtedly the majority has rewritten the law on the basis of a footnote finding, not supported by the record, that requiring an opening statement in bench trials “would unduly burden the courts” with an “unnecessary and time-consuming procedural device to further clogg their already clogged dockets.” Even if this finding were supported by the record, which it is not, and leaving aside the merits or demerits of such a conclusion, the fact remains that the resolution of such a question is a legislative prerogative and not a judicial function.
In my view, the purpose of requiring an opening statement in bench trials where they were not required before, was, among other considerations, to afford defendant in those trials the same safeguards for limiting the scope of the evidence the State may properly introduce which is afforded *977in a jury trial and assured by Articles 766 and 769 of the Code of Criminal Procedure. Thus, when the Court writes out the requirement of an opening statement it takes from defendant a valuable right the legislature saw fit to confer.
Written Notice of Intent to Use Confession or Inculpatory Statement
Not only is there a failure to make an opening statement in this case, but there is also a failure by the State to furnish written advice that a confession would be used. Under these circumstances, when the conclusion is reached that defendant waived the opening statement by failing to object, the question arises whether this waiver also has the effect of curing the State’s failure to furnish written advice that confessions and inculpatory statements would be used.
Though the requirement that an opening statement must be made before the introduction of evidence is presumed to be waived by a failure to timely object, the result is otherwise with respect to the failure to give written advice that a confession will be used. The penalty for the failure to furnish this advice timely is to render the confession inadmissible. Therefore, it is sufficient for defendant' to object to its admissibility when it is offered as was done in this case. No objection when the opening statement is due under Article 768 is required. There is nothing in this record which would lead us to even suppose that defendants were aware that these confessions or inculpatory statements would be used against them; nor does the record support a finding that defendants waived the right to receive written notice that they would be used.
It follows, therefore, that defendant must be advised in writing prior to the opening statement if a confession or inculpatory statement is to be used against him, and waiver of the opening statement does not relieve the State of the necessity for furnishing the written advice. This written advice should be furnished just prior to the time when the opening statement is due, even if the opening statement is waived. Although by Article 768 the opening statement and the written notice are mentioned together, these two are not necessarily altogether interdependent. The opening statement in this context serves only to fix the order in which the written advice must be furnished. The requirement for written advice that a confession will be used can therefore stand alone when an opening statement is waived.
In State v. Lacoste, 256 La. 697, 237 So.2d 871 (1970), the State, in good faith, failed to advise defense counsel prior to the opening statement that an inculpatory statement made by defendant would be used against him. Later, however, defendant was furnished the written advice twelve hours before the inculpatory statement was *979introduced. Moreover, the record in 'the Lacoste Case did not reflect prejudice by the delay. La.Code Crim.Proc. art. 921. We found the failure to comply with Article 768 to be harmless error.
Here, however, my study of the record makes it quite clear that the inculpatory statements were the heart of the prosecution’s case against these defendants; thus the prejudice is patent.
The right thus accorded to receive written advice that a confession or inculpatory statement will be used against the defendant is not made ineffective because defendant has the right to pretrial inspection of written confessions or inculpatory statements recognized by Article 703 of the Code of Criminal Procedure. But, assuming that the rights conferred by Article 703 did make the written advice unnecessary, this would not solve the defendant’s need to be advised of oral confessions or inculpatory statements’ in order that he might properly prepare his defense. For no statute or decision grants a defendant the right to pretrial discovery of oral confessions or inculpatory statements. As the comment to Article 769 declares, “The defendant cannot properly prepare to meet the issue unless he is apprised that the state intends to use the confession.” Even so, this advice to defendant comes at a very late time.
Here no advice that the inculpatory statements were to be used was given to defendants until the testimony concerning them was introduced over defendants’ objections. This ruling of the trial court and the majority opinion fails to come to grips with the positive statement in Article 768 that “If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise 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.”
I dissent from the majority opinion on this issue.
III.
Another complaint is that the inculpatory statements made by Geary and Himel to the campus security officer were not free and voluntary. A reading of the transcript of testimony recorded at the trial satisfies the requirement that inculpatory statements, like confessions, be freely and voluntarily made. Geary and Himel were requested by McCoy to call at the campus security office. They responded to the call and appeared at his office of their own free will and accord. No persuasion, intimidation, promise of reward or other improper influence was exerted by McCoy or others to bring about their appearance or the giving of information after arrival.
Despite these circumstances, the defense contends the latent threat of expulsion or other disciplinary action by school ‘authori*981ties if they failed to cooperate with McCoy was an undue influence which compelled Geary and Himel to comply. The compulsion to obey school regulations and cooperate with its authority, like the moral suasion to do right, is only an admirable trait of character influencing a student’s behavior. It is not a compulsion to which the odium of a forceful threat should be attributed.
I concur on this issue.
IV.
The final assignment of error relates to the contention that Geary and Himel were not given the Miranda warnings prior to questioning by McCoy, the campus security officer.
Aside from the fact that the record does not establish any official status of McCoy as a law enforcement officer, except as an employee of the University, I am satisfied that the Miranda requirements are not applicable here. As I read that case its guidelines apply to statements “stemming- from custodial interrogation”, and that “by custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action . . . . ” 384 U.S. 436, 86 S.Ct. 1602 (1966).
None of the drama which sets the scene for the Miranda warnings is present in this case. Geary and Himel were not in custody; they were in the campus security office of their own volition; they were not questioned by law enforcement officers; and they were not deprived of their freedom in any rqanner.
Furthermore, the offense charged here is a misdemeanor. La.Crim.Code art. 35. In these cases we have not required the Miranda warnings and there is no intimatiori in the Miranda decision that courts should do so. In State v. Angelo, 251 La. 250, 203 So.2d 710 (1967), the reason for not requiring the Miranda warnings in misdemeanor cases is stated. In Louisiana, as in all other states, innumerable acts considered relatively trivial are made misdemeanors. The great number of these lesser offenses and the limited number of law enforcement officers were felt to be factors militating against the necessity for strict, highly formalized procedural safeguards where misdemeanors are involved. It was noted in State v. Angelo that in Miranda and its related cases the United States Supreme Court was considering felony prosecutions. Thus we concluded, “We cannot construe the holding in that case (Miranda) to mean that statements of an accused in a misdemeanor case cannot be used unless the officers have informed him prior to questioning that he has the right to the presence of an attorney, and that if he cannot afford one, counsel will be appointed for him before questioning if he so desires.”
*983For the reasons assigned under Part II of this opinion, the conviction and sentence should be set aside and the case should be remanded for a new trial. I dissent from the Court’s refusal to so order.
. La.Code Crim.Proc. Art. 767:
“The state shall not, in the opening statement, advert in any way to a confession or inculpatory statement made by the defendant.”
La.Code Crim.Proc. Art. 768:
“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.”