text:
    232 La. 577
    STATE of Louisiana v. Donald Rufus EDWARDS.
    No. 43315.
    Supreme Court of Louisiana.
    April 1, 1957.

      Noel L. Adams, Jr., Jack C. Wimbish, C. P. Brocato, Shreveport, for defendant-appellant.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Edwin L. Blewer, Dist. Atty., Shreveport, for plaintiff-appellee.
   HAMLIN, Justice ad hoc.

The defendant appeals to this Court from his conviction of the crime of aggravated rape denounced by LSA-R.S. 14:42 and his sentence to death by electrocution.

Defendant’s counsel reserved nine bills to the rulings of the trial judge, but only seven are presented for consideration on this appeal.

Bill of Exceptions No. Two was reserved to the trial court’s overruling defendant’s challenge of Juror Claude Hamel.

During the examination on voir dire, Mr. Hamel stated that at a social gathering he heard a Member of the Grand Jury which indicted the defendant make the casual statement that he felt he had done his duty. Mr. Hamel stated that he placed no importance upon this casual statement, and that it would have no effect upon his verdict in the case if he were selected as a juror. On further examination, Mr. Ham-el stated that he had read press accounts of the crime and had formed an opinion or impression on the basis of what he had heard and read; but that since he had had the benefit of the instructions from counsel on both sides of the case and from the court, he felt that he could and would state that his opinion or impression was not a fixed opinion or impression. He further said that if selected as a juror, he could and would decide the case solely on the evidence that might be introduced in open court and on the law as charged by the court.

It is the contention of counsel for the defendant that “where the juror can try the accused on the law and evidence only, without interference from his past -opinion or prejudice, then he is qualified,” and does not fall within the prohibitions of LSA-R.S. 15:351. However, they argue that where a juror states that he has had an opinion as to the guilt or innocence of the accused in a case such as this, he should be excused.

The note of evidence, containing the questions propounded to Juror Hamel and his answers thereto, was not made a part of this bill. Therefore, we must accept as true the following statement of the trial judge in his per curiam to Bill of Exceptions No. Two:

“Being known to the Court as a citizen of intelligence and high character, the Court was convinced that Mr. Hamel was a qualified juror.”

See State v. Wideman, 218 La. 859, 51 So.2d 96; State v. Delatte, 219 La. 715, 53 So.2d 906; State v. Hardy, 198 La. 1048, 5 So.2d 330; State v. Boudreaux, 137 La. 227, 68 So. 422.

Bill of Exceptions No. Two is, therefore, without merit.

Bill of Exceptions No. Three was reserved to the ruling' of the trial court on the challenge of Juror John R. Murphy.

Mr. Murphy, who had been in the jury box during the questioning of a number of persons as to whether they belonged to the Louisiana White Citizens’ Council, stated on voir dire that he did not belong to that organization, but that he believed in white supremacy.

It is the contention of counsel for the defendant that Mr. Murphy was prejudiced against the colored race and could not relieve himself of the prejudice. They argue that the defendant was denied the constitutional guarantee of a trial by his peers.

Since the testimony taken in connection with this bill was not transcribed, the same ruling applies as in Bill of Exceptions No. Two. The following per curiam of the trial judge, which must be accepted as true, ably explains the statement of this juror:

“* * * The juror, Mr. Murphy, had been in the box in the courtroom while these questions and answers were being given and received, and the last such case was just a few minutes before Mr. Murphy’s examination on voir dire was begun by defense counsel. Mr. Murphy was asked if he belonged to that organization and Mr. Murphy replied that he did not, hut that he believed in white supremacy. This was a voluntary statement on Mr. Murphy’s part and was obviously given by Mr. Murphy to be frank. It was at this point that defense counsel asked Mr. Murphy what he thought white supremacy meant and it was in answer to that question by defense counsel that Mr. Murphy stated he did not believe the negro was his equal. He immediately explained by saying that he was referring solely to the field of social relationships. It is stated in the bill of exception that Mr. Murphy in giving his answer showed his prejudice by using the word ‘nigger.’ The Court was listening very closely to this examination, and the Court did not understand Mr. Murphy to say ‘nigger,’ but understood him to use the word ‘negro,’ and the Court did not discern any implication of prejudice in the juror’s remark. It was also stated in the bill of exception that Mr. Murphy stated that he could not relieve himself of said prejudice. The juror made no such statement. Indeed, as will be shown by the Note of Evidence attached to this bill of exception, the Court dictated to the Court reporter at the time this incident occurred the explanation that Mr. Murphy gave of his statement. As indicated in the Court’s remarks at the time, Mr. Murphy answered further questions by counsel for defendant that it was his personal opinion that a member of the colored race was his complete equal under and before the law and entitled to all of the rights, privileges and immunities before the law to which any other citizen was entitled. He further answered that he had no prejudice whatever against a member of the colored race and that he could and would try this case, if selected as a juror, solely on the law and the evidence. He further stated that the fact that the defendant in this case was a colored man and that the victim was a white woman would not interfere with his impartial consideration of the law and the evidence.
“Believing this to be true, the Court is of the opinion that Mr. Murphy was a qualified juror and the challenge for cause was therefore overruled.”

We, therefore, find Bill of Exceptions No. Three to be without merit.

Bill of Exceptions No. Five was taken to the trial court’s admitting in evidence certain enlarged photographs and negatives of the accused’s fingerprints.

Defense counsel objected to their admission in evidence for the alleged reason that they had not been sufficiently identified, in that the witness (Captain Booth) was not present when the negatives were developed and the photographs made, and that the defense had the right to cross-examine the person who made the negatives from the film and transferred the negatives to the prints.

Since no evidence has been attached to this bill, we must take as true the trial judge’s recitation of facts. See authorities cited under Bill of Exceptions No. Two, supra. The trial judge has more' than fully complied with the requirements of Article 504 of the Louisiana Code of Criminal Law and Procedure, LSA-R.S. 15:504, and from his per curiam we find a complete explanation of defense counsel’s objections. It explains that after the accused was arrested, Sgt. King of the Shreveport Police Department lifted his fingerprints from several objects at the scene of the crime. These prints were delivered to Lt. Davis, Sgt. King’s superior, who testified that the prints were delivered to him in person. The prints were compared with prints taken of the accused after his arrest, and Lt. Davis and Captain Richard, Chief of the Shreveport Fingerprint Department, testified that the prints were identical. The prints were then taken to the office of the State Bureau of Identification in Baton Rouge, and Captain Booth of the Bureau, a qualified fingerprint expert, confirmed that the prints were identical, and he testified to that effect on the trial. After confirming the identification of the prints, Captain Booth took enlarged photographs of all prints. He gave the films to a technical assistant and went with him into the dark room for the development of negatives. Captain Booth then made enlarged prints of the negatives, compared the prints with the originals, and testified that they were identical. Captain Richards also testified in the same manner-The enlarged prints were used in evidence at the trial.

We find no merit in Bill of Exceptions No. Five, particularly because of the above statement and the following statement from the trial judge’s per curiam:

“When the State, after developing the facts as hereinabove stated, offered in evidence the enlarged photographs, the originals of the latent and known prints having previously been introduced in evidence without objection, the defense counsel made the objection which is the basis of this Bill of Exception No. 5. As will be shown by the bill of exception itself and the Note of Evidence attached, the objection of defendant’s counsel was that the person who developed the film in the darkroom in Baton Rouge was not.present to testify that he had so developed it, and that the defense did not have the opportunity to cross-examine that person.
“The Court overruled the objection because, as stated hereinabove, Captain Booth had testified that he personally took the photograph with his own camera and that he went with his assistant or technician into the darkroom and remained there while the film was developed in his presence and under his supervision, and that he, himself, personally took charge of the developed negative upon its completion. In the Court’s opinion the photographs were sufficiently identified and were competent evidence.”

Bill of Exceptions No. Six was reserved when the trial judge permitted the introduction in evidence of the oral confession of the defendant over the objection of defense counsel.

The defendant’s counsel contended that the necessary and proper foundation had not been laid 'by the' District Attorney; and that the confession was not voluntarily made, because the accused was subjected to mental and physical duress. It was further argued that such alleged mental and physical duress was the means employed to secure the oral confession.

Whether a confession is given freely and voluntarily is a question of fact, which addresses itself to the discretion of the trial judge. State v. Cook, 215 La. 163, 39 So.2d 898; State v. Palmer, 227 La. 691, 80 So.2d 374; State v. Hilliard, 227 La. 208, 78 So.2d 835; State v. Michel, 225 La. 1040, 74 So.2d 207; State of Louisiana v. Isaac Peart, La., 93 So.2d 920.

There is no evidence attached to this bill, and, as stated in the bills discussed supra, the per curiam of the trial judge is controlling. Because of the gravity of the crime of which the defendant has been convicted and the serious nature of the sentence imposed, we quote in full the per curiam attached to this bill:

“When the District Attorney began to question Lieutenant Cecil L. Payne of the Shreveport Police Department leading up to the offering of an oral confession of the defendant to said witness and Detective M. U. James, counsel for defendant requested that the jury be removed, in order that the admissibility of such confession should be determined by the judge out of the presence of the jury. The jury was retired and for four or five hours testimony was presented for the purpose of laying the foundation for the admissibility of the confession. This evidence was not taken by the court reporter at that time and counsel for the defendant did not request that it be taken. At the conclusion of the evidence the Court ruled that the proper foundation had been laid to show the free and voluntary character of the confession and that the same would be admitted in evidence before the jury. During the time that this legal foundation was being laid by the State all police officers who had any contact with the defendant from the time of his arrest shortly after midnight of the day following the date of the crime were called to the stand and examined by the District Attorney and cross-examined by counsel for defendant. The testimony given by these officers was substantially the same as that given by the same witnesses later on after the jury was recalled (which testimony was transcribed by the court reporter and is attached to Bill of Exception No. 7), with a few exceptions, which we here note. Without rehashing here the testimony of the officers, the Court now states that the testimony of these officers conclusively established that the defendant' was not at any time put under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. Every officer who testified, testified positively that the defendant was not abused in any way, that he was not struck by any person at any time, that he was not threatened by anyone, and that he was not promised anything or offered any inducements to make a confession. It will be observed from the transcribed testimony attached to Bill of Exception No. 7 that after the defendant’s arrest at the house of his girl friend, shortly after midnight, he was brought straight to the police station and taken into the office of Chief of Detectives Wayne Bateman. As will be seen from the per curiam to Bill of Exception No. 9, the arresting officers had found on the defendant and in the room in which he was in bed at the time of the arrest, the victim’s diamond wedding ring and other items which had been taken from the victim’s home. The officers began questioning the defendant, probably around two o’clock in the morning, and the same continued at intervals until after daylight, or somewhere around 6:30 or 7:00 o’clock. Most of the questioning was by Lieutenant Payne and Detective James. From the time defendant was brought into the police station until the questioning ceased and he was carried upstairs to the jail and put into a cell, Public Safety Commissioner Earl Downs and Chief of Police Harvey Teasley, or one of them, was present at all times supervising the interrogation.
“The office in which the defendant was being questioned was a small office opening onto the main hall of the Municipal Court Building. In it was a desk, a swivel chair and two straight-backed chairs. The evidence indicates that after the defendant had been questioned for some time while standing with his hands handcuffed behind his back, one of the officers brought up a coca-cola box to permit the defendant to sit down. Defense counsel on cross-examination emphasized that this was a form of duress and abuse, but we cannot agree. The testimony shows that when first arrested the defendant was sullen and uncommunicative and Commissioner Downs stated in his testimony to the Court that they felt they were dealing with a desperate criminal and the handcuffs were kept on him as a precaution against escape or any other untoward incident.
“We pause at this point to observe that the opinion of the Commissioner and the officers on this point was a wise one. The defendant in this case is a young, powerful, athletic negro, approximately twenty-two years of age. His desperation was later demonstrated to this Court when, after the jury returned into court with a verdict of Guilty as Charged and the Court ordered the verdict of the'jury to be recorded and the prisoner remanded into the custody of the sheriff to await sentence, three deputy sheriffs led him without handcuffs out of the courtroom to the jail elevator situated immediately outside of a rear door of the courtroom. Between this door and the elevator is a narrow stairway, leading up to the jail floor in one direction and down into the open basement of the courthouse in the other direction. Just after the deputies passed outside the courtroom door to approach the elevator door, this defendant suddenly and without any warning attacked two deputies walking in the rear of him, shoved them into each other, and bolted up the stairs. Before the deputies could recover from this sudden assault the defendant successfully made his way up the stairs to between the third and fourth floor elevations, pulled himself up above some iron bars on the lower part of a window and dived headfirst thrortgh the upper part of a glass window out onto the roof of a wing of the courthouse probably fifty feet above ground level. Two shots from one of the pursuing deputies were fired at defendant as he was crashing through the window, but missed. The defendant then ran to the edge of the roof and, with the deputy in pursuit, defendant either fell or jumped the fifty feet to the ground, got up and ran across the courthouse square, up an adjoining street, and again dived headfirst through a ground level window in a nearby church. He made his way to the top of a tower of the church some six to eight stories high and was seen from the street hanging by his hands outside the top window, apparently with the idea of dropping to an adjoining 'building roof. For some reason he was seen to pull himself back into the building where he was a few minutes later cornered by pursuing officers who had followed him by a trail of blood resulting from a cut on his hand, rearrested, and returned to jail.
“During the morning hours during which the officers were questioning the defendant he was permitted to smoke and was given refreshment, and food along about 6:30 or 7:00 o’clock. During all of this questioning the defendant had never made any confession but was making answers to questions propounded to him by the officers concerning his movements on the night of the crime, the items mentioned above which had been taken from the house, and questions of that nature. The evidence shows that the handcuffs were removed from the defendant some time around 4:30 or 5:00 o’clock in the morning, and some time later he was removed to Commissioner Downs’ office where he was seated. The testimony also shows that some time after seven o’clock the District Attorney was ■called by the Commissioner, and the District Attorney called his First Assistant, and together they went to the police station and went to Commissioner Downs’ office, which also is located on the main hall of the building, where they found the defendant seated in perfect comfort. The District Attorney and his assistant questioned the defendant for some time, and both testified he was perfectly calm ,and cool and mentally alert. They saw no evidence of any abuse and both testified that the defendant did not even appear to be weary. Their testimony given to the judge is in substance the same as that they gave after the jury was recalled, and which is in the Note of Evidence attached to Bill of Exception No. 7.
“When the State had concluded with all of the officers who had had any contact with the defendant between the time of his arrest and the time he made his confession, counsel for the defense requested permission to put the defendant on the witness stand for the limited purpose of controverting the evidence of the officers pertaining to the voluntary character of the confession. This .was permitted and the defendant was sworn and he testified for that restricted purpose. The defendant did testify that Lieutenant Payne slapped him one time while the interrogation was in progress, that one of the officers whom he could not identify hit him over the head with a rubber hose pipe, and one kicked him on his leg. No other evidence was offered by the defendant. Lieutenant Payne and the other officers were recalled. Lieutenant Payne flatly denied that he had slapped the defendant, and all the officers testified that no one struck the defendant with a hose pipe or kicked him on the leg.
“Counsel for defendant emphasized on their cross-examination and argued to the Court against the admissibility of the confession that the defendant was promised that if he would make a confession he would be permitted to see his mother. The officers denied this and, when the defendant was on the stand, he was asked by his counsel if anybody at any time promised him that if he would make a confession he would be permitted to see his mother. The defendant answered that no one at any time promised him that if he would make a confession or any statement he would be permitted to see his mother. And the defendant himself did not testify that the oral confession which he made later on was not his own free and voluntary act and statement.
“Now the evidence showed that after the District Attorney and the Assistant District Attorney questioned the defendant in the Commissioner’s office around eight o’clock that morning, all questioning ceased and the defendant was carried upstairs and put in a cell by himself. This cell is described in the testimony of Captain Regions, the City Jailer, which testimony is attached to Bill of Exception No. 7. It is a cell of adequate size, having two beds (a double-decker), a commode, a wash basin and running water, and a larg:e window almost the width of the cell. The defendant remained in that cell, alone, until some time after twelve-o’clock when, as Captain Regions was either making the rounds to pick up the breakfast plates or in the act of distributing the noon meal, the defendant asked Captain Regions if he would call Detective M. U. James. The evidence shows that Detective James knew the defendant and had known his family for a long time. Captain Regions communicated defendant’s request to Detective James who, in turn, called Lieutenant Payne, and the two went to defendant’s cell and asked him what he wanted. Defendant stated that he wanted to tell them the truth about what had occurred. These two officers took the defendant into an adjoining room, known as the Fingerprint Room, and the three sat down at a table and the defendant proceeded to make the oral confession which the two officers recited to the judge while the jury was retired, and which they repeated after the jury had been returned. It was to the recitation of this oral confession before the judge while the jury was retired that this Bill of Exception No. 6 was reserved. And to the same recitation after the jury had returned, Bills of Exception Nos. 7 and 8 were taken.
“Lieutenant Payne made written notes in a little pocket notebook which he had on his person of what defendant said. The substance of the confession was as follows:
“ ‘Defendant left his mother’s house during the early part of the night and after detailing the route he followed, came to the home of the victim in this case. He walked up the driveway and went to a side door which opened onto a patio porch. This door was locked and he went around on the other side of the house and tried another door near the garage. This door was unlocked. He opened the door and went into the' house. When he got into the house he then went to the door opening onto the patio which he had first found locked, opened it and propped it open with a flower pot sitting nearby. Defendant stated that he then took off his shoes and put them on top of a barbecue pit at the edge of the patio in the back yard, and then went back into the house through the patio door. The defendant stated that there were about three dim lights on in the house and that he began searching through some dresser drawers looking for money; that he went into three bedrooms in the east end of the house and in one he found three silver dollars and three $1.00 bills. He said the three silver dollars were in a drawer and the three $1.00 bills were in a pocketbook. He then came out of the room and walked down the hall toward the sitting room. He looked into another bedroom and there were two beds in the room and he saw that someone was in one of the beds. He walked into the room and over to the bed. He woke the person by a shake on the shoulder and discovered it was a lady. When the lady woke up he asked her where was her money and for her not to holler. He stated that at this time he took his knife out of his pocket and opened it and she told him she did not have any money. The lady raised up in the bed to see who he was, and defendant stated that he told her to take her pajamas off. He said the knife was in his hand. He said that the lady took her pajamas off and he got in the bed, unbuttoned his pants and had an intercourse with her. He said he then got up and the lady got up out of the bed and he asked her again if she had any money and she again said that she did not. He then asked her ‘if the kid had any bank around here,’ and she answered ‘no.’ He said the lady then walked over the house showing him that she did not have any money and he was walking close by her with his knife open in his hand. Defendant stated that they walked through the sitting room into the dining room where he made the lady lie down on the floor and while he still had the knife in his hand he got down on top of the lady on the floor to have another intercourse with her but that something came over him and he did not complete the act. He said that he then went back to the bedroom in the east end of the house where the lady asked him ‘if he wanted her ring.’ He said he told her ‘yes’ and she took it off her finger and gave it to him. He asked her if she had any money in the bank and she replied ‘A little, about $500.’ He then told her to write him a check and she wrote him a check for $300. Defendant stated that the light from the bathroom made it fairly light in that bedroom and he saw that a tatoo on his left arm was noticeable, since he was wearing a short-sleeve sport shirt. He then opened a closet door and got a green jacket and put in on to cover up the tatoo. He was then looking through some jewelry boxes. The lady had not had on any clothes whatever from the time she had gotten up off the bed. The knife he was carrying had a yellow handle and a wide blade. At this time while he was looking through the jewelry boxes the lady broke and ran out of the house. She ran out of the front door and he ran out of the back door, grabbed his shoes from off the barbecue where he had left them, and ran towards the bayou bridge leading into Broadmoor. He said that near a schoolhouse he took off the green jacket and threw it away. He said he also threw the check away: He said he also threw away a manicure kit. He said he did not throw away the lady’s ring, the $6.00, a cigaret lighter, and some costume jewelry. He said that while he was running he threw away his knife and came on up through Broadmoor into Valencia,, the lattér being a negro subdivision. He said he took off the sport shirt he was wearing and rolled it around some rocks and threw it into a bayou near Stoner Hill School, and that he then went on to his mother’s house at 1647 Royal Street. He also stated that all the time he was in the lady’s house he had a white handkerchief over his face.
‘Defendant stated that when he arrived at his mother’s house there was no one there. He changed clothes and after a time cooked himself some eggs and ate them. He then went back over to his girl friend’s house and she was mad at him for having stayed out all night and he went to bed and the girl friend left the house. She later returned and got in bed with him and they slept until about three o’clock in the afternoon. They got up and then went back over to his mother’s house and there was still no one there. They then went to his girl friend’s mother’s house and stayed there for some time. After that they went to the grocery store, got some groceries and then went back home to his girl friend’s house and cooked themselves something to eat and then went to bed again and were in bed asleep when the officers knocked on the door shortly after midnight when he was arrested.’
“The court is of the opinion that the evidence clearly establishes that at no time after the defendant’s arrest and while he was being interrogated was he subjected to anything of a character to force or induce a confession. Moreover the oral confession which he did make was made some four or five hours after this questioning had ended and when he was in complete ease and comfort. The Court is convinced that the defendant decided of his own volition to send for Officers James and Payne and make a complete statement of the entire affair. We think the confession was free and voluntary, admissible in evidence, and that this bill of exception is without merit.”

A careful study of the above per curiam discloses no manifest error in the trial judge’s ruling, and, therefore, we find no merit to Bill of Exceptions No. Six.

Bills of Exceptions Nos. Seven and Eight were reserved to the ruling of the trial judge that the oral confession of the defendant was freely and voluntarily made to Lt. Cecil L. Payne and Detective M. U.. James.

To these two bills is attached the testimony of an arresting officer (J. C. Broome), that of the police officials who questioned the defendant, and that of the District Attorney and his Assistant.. A thorough reading of this testimony convinces us that the findings of the trial judge in his per curiam to Bill of Exceptions No. Six are correct. We believe that the defendant’s oral confession was free and voluntary, and that it was not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. Article 451, Louisiana Code of Criminal Law and Procedure, LSA-R.S. 15:451.

It is further contended that the confession of the defendant was given at a time when he had not been booked, and that this constituted a violation of Article 77 of the Louisiana Code of Criminal Law and Procedure, LSA-R.S. 15:77.

Since we find that the 'confession was made voluntarily, we do not believe that the trial judge erred in permitting it to be introduced in evidence, even though the defendant was not hooked .at the time it was given. Police officers are amenable to law, but their failure to strictly comply with, its provisions would have no bearing on the present matter. In State v. Taylor, 173 La. 1010, 139 So. 463, 471, we said:

“They” (defendants) “contend that under Act No. 20 of 1928 and article 77 of the Code of Criminal Procedure they should have been taken immediately after their arrest to'the nearest police precinct station and not to police headquarters. They aver that when they arrived at police headquarters they were surrounded by a number of people, among whom were many police officers, and that the atmosphere of the place was heavy with hostility.
“Act No. 20 of 1928, according to its title, was adopted to define the authority of the district judges throughout the state and the recorders of the city of New Orleans to grant bail or to parole or release in such cases, and providing a penalty for the violation of the act. The statutory provision, as well as article 77 of the Code of Criminal Procedure, referred to by defendants providing for the carrying of a person under arrest to the nearest police station to be then and there booked, the record whereof is always to be kept open to public inspection, were apparently enacted to facilitate and to protect persons arrested in obtaining their release on bail or on parole. It may be that the officers who arrested the defendants were. amenable to the law, but we fail to see what bearing the statute or the codal article have on the present inquiry.
“The desperate manner in which the defendants had committed the series of crimes for which they were being sought justified the number of police engaged in their pursuit and the use of force and firearms in effecting their arrest. The statements of the defendants were not made in the presence of a mob composed of citizens and policemen, but were made in the private office of the chief of police in the presence only of the assistant district attorney, the chief of police, and three or four police officers.”

Counsel for the defendant rely on the recent case of Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 284, 1 L.Ed.2d 246, as authority for their contention that the conviction and sentence should be set aside because defendant’s oral confession was made under alleged mental and physical duress. The following statement of the United States Supreme Court, compared with the facts of the present case as found by the trial judge in his per curiam to Bills of Exceptions Nos. Six and Nine, shows that the case is not apposite:

“Here the prisoner was an uneducated Negro, certainly of low mentality, if not mentally ill. He was first arrested by civilians, lodged in jail, and then removed to a state prison far from his home. We do not criticize the decision to remove the prisoner before any possibility of violence might mature, but petitioner’s location and the conditions of his incarceration are facts to be weighed in connection with the issue before us. For a period of a week, he was kept in isolation, except for sessions of questioning. He saw no friend or relative. Both his father and a lawyer were barred in attempts to see him. The protections to be afforded to a prisoner upon preliminary hearing were denied him, contrary to the law of Alabama. He was questioned for several hours at a time over the course of five days preceding the first confession, and again interrogated at length before the written confession was secured.
“ * * * The totality of the circumstances that preceded the confessions in this case goes beyond the allowable limits. The use of the confessions secured in this setting was a denial of due process.
“Neither Stein v. People of State of New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522, nor any of the other cases relied on by respondent stands in the way of this conclusion. In Stein, the Court said:
“ ‘The limits in any case depend upon a weighing of the circumstances of pressure against the power of resistance of the person confessing. What would be overpowering to the weak of will or mind might be utterly ineffective against an experienced criminal.’ 346 U.S. at page 185, 73 S.Ct. at page 1093.
“That is the same standard that has been utilized in each case, according to its total facts. Cf., e. g., Watts v. State of Indiana, 338 U.S. 49, 53, 69 S.Ct. 1347, 1349 [1357], 93 L.Ed. 1801 [1804]; Lyons v. State of Oklahoma, 322 U.S. 596, 602-605, 64 S.Ct. 1208, 1212, 1213, 88 L.Ed. 1481 [1485-1487]. $ * * ft

We, therefore, find no merit in Bills of Exceptions Nos. Seven and Eight.

Bill of Exceptions No. Nine is based upon the ground that the verdict rendered by the jury is contrary to the law and the evidence, and it is also based in part on the matters covered by Bills of Exceptions Nos. Two through Eight. Bill No. Four was abandoned.

Since we have not had the advantage of having testimony attached to any of the bills taken — except to Bills Nos. Seven and Eight — we quote the per curiam of the trial judge to substantiate our holding that there is no merit to Bill of Exceptions No. Nine:

“This bill was reserved when the Court overruled defendant’s motion for a new trial. Although the bill states that it is based in part on the matters covered by Bills of Exception numbered 2 through 8 inclusive, Bill No. 4 has been abandoned. In so far as this bill of exception is based upon the errors alleged in the perfected bills of exception, the per curia to said perfected bills cover the instant bill.
“In so far as this Bill No. 9 is based upon the contention that the verdict of the jury was contrary to the law and the evidence, it is without merit. We reiterate here the statement which appears in the reporter’s note attached to the bill, which we made at the time the motion for a new trial was overruled.
“The evidence abundantly and overwhelmingly established the following facts:
“In the early morning hours before 3:00 A.M. on the date stated in the bill of indictment the victim of this aggravated rape was asleep alone in her home. Her husband and eleven year old daughter were in Washington, D. C. where her husband was combining a business trip with the pleasure of having his daughter with him. The lady testified that she was awakened when a man aroused her by shaking her. She made an outcry and he placed an open knife at her throat, threatening to kill her if she made any further noise. She testified that she received a cut on the side of her neck. This was confirmed by the doctor who attended her and by the presence of a splotch of blood on the pillow. She testified that the man was a young negro. This fact she deduced from his voice and appearance. He had a mask over the lower part of his face. He wore a dark blue cap which he never at any time removed. He wore bluejeans and a shirt and was in his sock feet. The man ordered her to remove her pajamas, which she did, and the man committed an act of sexual intercourse with her in bed under threat of death if she resisted. After her assailant had completed this rape he ordered her to precede him, she being completely nude, through other rooms in the house in search of money and valuables. She testified that in one bedroom from the contents of a dresser drawer which he removed he took two manicure sets, so-called, which are two small silver knives having a cutting blade, a finger nail file, fingernail clippers, etc. One of these had imprinted on its side ‘Gibbons Transport Company,’ the name of one of her husband’s businesses. This was one of several her husband had had made up as souvenirs to be distributed to his customers, and this one he had given to her. Another similar one bore a similar imprint of an oil company, another of her husband’s businesses, which had been given to him by a representative of a company with which her husband did business. Three silver dollars belonging to the daughter and which had been given to her as presents from time to time were also taken. While rifling some of the dressers or other articles of furniture in one of the rooms the assailant found some blank checks. She had already assured him repeatedly that she had no money in the house. He then asked her how much money she had in the bank and she replied about $500.00. He ordered her to write out a check for $300.00 to Cash, which she undertook to do, but in her agitated state she did not fill in the amount of the check in letters in the space provided for that purpose, inserting the amount of $300.00 only in figures. The man took this check and put it in his pocket. Seeing that she had on a white gold wedding ring set with small diamonds all around, he forced her to give that to him.
“While her attacker was marching her through the house at the point of a knife he forced her to lie down on the dining room floor and a second time committed a rape. At one point in these wanderings through the house, the lady testified that her assailant, while looking in a clothes closet, took therefrom a lady’s jacket and put it on himself. Finally, when her assailant was going through a number of items he had removed from some article of furniture, he moved a few feet away from her, and for the first time she observed that a bed was between them, and she broke and ran from the room, down the hall and out the front door, screaming for help, and ran to the back door of her neighbors, there being just a few feet separating the two houses. She pounded on the back door and her neighbors, having already been awakened by her screams, ran to the back door and opened it, and she fell into the back door, still completely nude and in an hysterical condition. These neighbors, a young married couple, testified in the case to these facts. She was immediately covered with a blank-: et and comforted by the lady in whose house she had fallen, and these neighbors immediately called the police and the family physician of the victim, who lived a short distance away.
“This doctor came immediately, and after administering some tranquilizing drugs, took the victim to his office and examined her. This doctor testified to the cut on the side of her neck and an additional small cut on one of her fingers, which she had previously testified to. The doctor testified that the vaginal examination he made disclosed an. abrasion or tear which had bled. The evidence showed that the victim, was. not menstruating at that time. At the very first contact the victim had with, her neighbors at their back door, as above stated, she stated that she had been raped twice by a young negro man. She testified that her assailant was in her home for quite a long time, which she estimated to be in excess of forty-five minutes or an hour.
“The accused in this case was arrested by the police shortly after midnight of the day on which this rape occurred. He was asleep in the house and bed of a negro' girl friend with 'whom it was shown that he lived at times. In the watch pocket of the pants he was wearing' in bed was found the diamond wedding ring of the victim, which she identified in open court and which was further identified by her husband. Also in the room were found the two manicure sets above described and a silver desk cigaret lighter which the victim also testified was another item that lie' had taken and put in his pocket while in her house. Two silver dollars were also found in his clothing. Later on the police went to the home of the accused’s mother, where he was supposed to live. In the room in which he stayed there, they found a pair of bluejeans, the bottoms of the legs of which were damp, a pair of shoes which were wet and covered with mud, and an. old blue cap. These articles of clothing were identified by the defendant’s mother, who testified for the State, as,belonging to the defendant and being the, ones he had worn the preceding evening. The evidence showed that on the night this rape occurred there was considerable dampness. All of the evidence recited above was placed before the jury before the defendant’s ora.1 confession (set forth in the per curiam to Bill of Exception No. 6 and further referred to in the per curia to Bills Nos. 7 and 8) was introduced in evidence.
“A few days after this rape Mr. D. C. Scarborough, III., a neighbor of the victim several houses removed, was working on his lawn and picked up a piece of paper which he found to be a $300.00 check signed by the victim. After consultation with his wife, they put this check in an envelope and sent it through the mail to the victim. Both Mr. and Mrs. Scarborough testified to these facts in the case, and this check was presented in evidence and identified by the victim as being the check which her assailant had compelled her to write and give to him on the night of the crime.
“When the police arrived at the scene of the crime a few minutes after the alarm was given, they found that a back door of the victim’s home opening out onto a patio was propped open with a flower pot, which was shown by the evidence to be customarily located nearby.
“The defendant’s oral confession introduced in evidence and set forth in the per curiam to Bill of Exception No. 6 and referred to in per curia to Bills Nos. 7 and 8, confirms in every essential respect the testimony of the victim in this case and the evidence heretofore enumerated.
“There can be no question but that the jury’s verdict was abundantly and overwhelmingly supported by the law and the evidence in this case.”

For the reasons assigned, the conviction and sentence are affirmed.

      . Bills of Exceptions Nos. Six, Seven, and Eight are related. The trial Judge’s per curiam to Bill of Exceptions No. Six is referred to in his per curiam to Bills of Exceptions Nos. Seven and Eight.

      . “Every peace officer making an arrest or who shall have turned over to Mm any person arrested by a private person and any person making an arrest of another person shall immediately conduct the person arrested to the nearest jail or police station and then and there cause him to be booked, that is to say, shall cause to be entered on the book to be kept for that purpose the name of the prisoner and the crime or violation of ordinance charged against him and for which he shall have been arrested. Said book shall always be kept open for the inspection of the public, and the officer in charge shall furnish without cost a certified copy of the entry thereon to any person desiring such copy.”


source: Caselaw Access Project

author: REGAN, Judge.

license: Public Domain

text:
    John BRYANT v. EMPLOYERS MUTUAL LIABILITY INSURANCE CO. OF WISCONSIN.
    No. 20860.
    Court of Appeal of Louisiana. Orleans.
    March 25, 1957.
    Rehearing Denied May 13, 1957.
    Frank S. Bruno, New Orleans, for plaintiff-appellant.

      James C. Murphy, Jr., New Orleans, for defendant-appellee.
   REGAN, Judge.

Plaintiff, John Bryant, who was employed as a laborer by the Lee Door Company, instituted this suit against its insurer, the defendant, Employers Mutual Liability Insurance Company of Wisconsin, endeavoring to recover workmen’s compensation at the rate of $30 per week for a period of four hundred weeks, $1,000 medical expenses, twelve percent penalties and attorney’s fees for total and permanent disability resulting from an alleged accident on April 11, 1955, at about 4:00 P.M. when he slipped and fell on his back while walking on wet boards which covered a portion of the floor of his employer’s plant.

Defendant answered and denied that an accident occurred or, if it did occur, that the plaintiff suffered any compensable disability as a result thereof.

From a judgment in favor of the defendant dismissing plaintiff’s suit, he has prosecuted this appeal.

The facts are unusually simple. Plaintiff was a permanent resident of Franlc-linton, Louisiana, temporarily residing in New Orleans while he was employed as a general laborer by the Lee Door Company, which is located in the Parish of Jefferson, Louisiana. Plaintiff testified that on April 11, 1955, at about 4:00 P.M. he was carrying lumber in his arms when he slipped and fell on his back while walking over wet boards which had been placed upon a portion of the floor of the plant after .a heavy rain. Pie arose unassisted and did not believe that he had suffered any injury; several minutes later his brother, a fellow employee, who was momentarily absent when the incident occurred, returned to the situs of the accident and he related to him the details thereof. Plaintiff asserted that he then visited the office and likewise informed Homer Lee Davis, the owner and manager of the plant, of the accident. He said Davis told him that he would be taken care of if he suffered any ill effects as a result of the accident; that night the injury became increasingly painful which motivated a visit to the Charity Hospital, where he received sedation, but was informed by a person of authority that the hospital would not continue treatment since his injuries were his employer’s responsibility. Plaintiff further testified that his employer subsequently referred him to the Fisher-Rabin Clinic in Jefferson Parish, where he was treated by Dr. Herman Rabin from April 14, until May 2, 1955, when he was discharged as being able to resume his former occupation.

The plaintiff has never been paid workmen’s compensation.

In order to verify the occurrence of an accident, the plaintiff produced only one witness, Junior Anthony Graham, likewise a permanent resident of Franldinton, Louisiana, and a lifelong friend of the plaintiff, who laboriously testified that on April 11, 1955, at about 4:00 P.M. he visited the Lee Door Company in an effort to secure employment and in connection therewith spoke directly to the plaintiff rather than his employer. After a brief discussion he was informed by the plaintiff that the plant “was not hiring any hands.” As he was leaving the plant he heard a noise and when he turned around he saw the plaintiff lying on the floor. He explained his indifference to the accident by asserting that since the plaintiff was able to arise by himself, he was of the opinion that he was not injured and, therefore, made no effort to render any assistance and continued walking away from the plant.

There were a number of people employed by the defendant who worked in proximity to the plaintiff, but Graham’s testimony is the only evidence which he introduced into the record in order to substantiate his contention that an accident occurred which resulted in his total disability.

On the other hand, in resisting the contention of the plaintiff that an accident occurred, Homer Lee Davis testified through the medium of interrogatories that he had spoken to the plaintiff about the time that the accident is alleged to have occurred and that he was not informed thereof, but that plaintiff’s only interest at that time, since he had been “laid off”, was when could he again resume his employment. Davis then more pertinently related that on Tuesday, April 12, he:

“ * * * went to his brother, whom he worked with all the time, and asked if there had been an accident and his brother said not to his knowledge had there been an accident. And I asked if he had been with his brother all day and he said, ‘yes.’ And I tried to find out from the other men and as far as I could determine, there had been no accident whatsoever. His brother mentioned at that time that that wasn’t the first time that he had faked an accident —or not faked, but, in his words, if I remember correctly, that he had pulled the same stunt.”

In order to further substantiate the defendant’s contention that the plaintiff was not involved in any accident during the course of his employment on Monday, April 11, 1955, a statement dated May 4, 1955, signed by Robert C. Bryant, plaintiff’s brother, was introduced in evidence which reads in part as follows:

“We always worked close around each other. * * * I do not know anything about my brother getting hurt here on the job. The first I heard about John getting hurt was on a Thursday or Friday following a Monday when he got laid off. He told me he got his back hurt but did not tell me when or how he got hurt. I do not know if anyone else here on the job knows anything about John getting hurt on the job. I worked with John the last day he worked here and he made no mention of getting hurt. He and several others were laid off that same day.

During the course of the trial defendant’s counsel called Robert Bryant as a witness to verify the contents of the foregoing statement. He pleaded surprise when Robert Bryant endeavored to modify his written statement by orally asserting that on the day of the alleged accident his brother, the plaintiff “said something about it, but I didn’t pay it any mind. He said there was nothing to it.”

The fundamental question which the pleadings and the evidence has posed for our consideration is one of fact and that is whether an accident within the meaning of the Workmen’s Compensation Act, LSA-R.S. 23:1021 et seq., occurred on April 11, 1955.

We have carefully analyzed the record and we are convinced from the whole context thereof that the plaintiff was not involved in any accident on April 11, 1955.

The legal philosophy which has permeated our jurisprudence with liberal rules of evidence and procedure applicable to workmen’s compensation cases does not apply to proof that an accident actually occurred. Plaintiff must, therefore, establish his case by a preponderance of competent evidence as in any other civil suit. He must prove his case with that legal certainty which the law requires. This he has failed to do. It is our opinion that the evidence adduced on behalf of the defendant from Homer Lee Davis and particularly from the plaintiff’s brother, Robert Bryant, which was initially obtained through the medium of a written statement preponderates to the effect that no accident occurred. Robert Bryant’s subsequent effort to modify his written statement during the trial hereof was obviously motivated by a feeling of compassion for his brother.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.

      . Robert C. Bryant was employed as a “rip saw operator.” Plaintiff was his helper.

      . This was the same day that Davis was notified by the Charity Hospital of plaintiff’s effort to obtain treatment there on the night of the alleged accident, April 11, 1955.

      . April 11, 1955, the day of the accident.


author: JANVIER, Judge.

text:
    John P. MURRAY v. ROYAL INDEMNITY CO. et al.
    No. 20847.
    Court of Appeal of Louisiana. Orleans.
    Jan. 2, 1957.
    Rehearing Denied Jan. 14, 1957.
    Writ of Certiorari Denied March 1, 1957.
    M. C. Scharff and A. J. Murciante, New Orleans, for plaintiff-appellant.
    Bienvenu & Culver, New Orleans, for defendants-appellees.
   JANVIER, Judge.

This matter is before us on appeal by John P. Murray, plaintiff, from a judgment of the Civil District Court for the Parish of Orleans dismissing, on a plea of prescription of one year, his suit for workmen’s compensation in which he prayed for solidary judgment of $30 a week for 400 weeks against his employer, Alexander Shipyard, Inc., and its insurance carrier, Royal Indemnity Company.

On May 24, 1952, plaintiff, while operating a large metal turning lathe, sustained accidental injury and admittedly was totally disabled until September 29, 1952, on which day he returned to work for the same employer and, on advice of the medical expert, was assigned to work on a smaller metal turning lathe.

From the time of the accident, in May, until he again commenced work in September, he was paid maximum compensation, and after his return to work in September, he was paid at the same rate at which he had previously been employed. Until the trial of this suit and, in fact at the time of the argument before us, he remained at work on the smaller lathe and his rate of pay continued as great as it had been previously and he received all the increases in pay which similar employees received.

On January 24, 1955, which was two years and eight months after the occurrence of the accident, he filed this suit.

The defendants admitted the occurrence of the accident and in fact all of the essential allegations on which the suit is based, except that they denied that any disability remained after plaintiff returned to work on September 29, 1952, and, in addition to this denial of present disability, they filed pleas of prescription of one year and of two years.

It is on the plea of prescription of one year that the suit was dismissed in the District Court.

In a very clear statement in a case, which we shall discuss at some length, the Supreme Court has explained the meaning of the prescription provisions of our compensation laws. In Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522, 525, appears the following:

“R.S. 23 :1209 provides for two periods of limitation. Initially, it prescribes a period of one year from the date of the accident within which suit must be brought. This prescription is interrupted by the making of compensation payments and it does not begin to run again until after the last compensation payment is made. The other limitation, which was provided by the amendatory Act 29 of 1934, is also a prescription of one year, coupled with a peremption of two years. It declares ‘Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.’ ”

In that case the Court was called upon to determine whether, under circumstances very 'similar to those found here, the pay which the employee had received after returning to work was actually earned and therefore should be looked upon as wages earned, or whether those payments had not been actually earned and therefore should be considered as mere gratuities given to the employee and received by him in lieu of compensation. The Court said that the money which had been paid to plaintiff under those circumstauces “was fully earned”. But the Court said that although no part of those wages could “be regarded as compensation or in lieu thereof * * * ”, nevertheless the one year prescription had not accrued for the reason that the disability did not manifest itself at the time of the accident, which had occurred on June 4, 1952, and had not become apparent until October 26, 1953, which was within one year of the time at which the suit had been filed.

There are a great many decisions in which the Supreme Court and the several courts of appeal, including this Court, have discussed the question of the effect on the accrual of prescription of the payment of wages to the same employee by the same employer after the occurrence of an accident, and this question has been recently discussed by Professor Wex S. Malone in the 1955 Pocket Part of his work entitled Louisiana Workmen’s Compensation Law and Practice, Chapter 19, section 402, page 88 of the said pocket part.

We think it unnecessary to quote from most of the numerous decisions touching on the subject but shall discuss what was said by the Supreme Court in the Wallace case, supra, and in Mottet v. Libbey-Owens-Ford Glass Co., 220 La. 653, 57 So.2d 218, 220, in which latter case the Supreme Court said that “the suit of an employee who is actually earning wages cannot be dismissed on a plea of prematurity because he is not receiving compensation.” The Court also said that “the wages paid * * * cannot be considered in the nature of compensation * * ”

In the case at bar there can be no question that the wages were fully earned by the employee. He himself so stated. We quote from his testimony:

“Q. Now, you have been earning your pay around there, haven’t you? A. I think so. I don’t think they would give it to me for nothing.
“The Court: Q. What counsel means is, you have been actually working. You are not a deadhead? A. No, sir. I’ve been working.
“Mr. Bienvenu: Q. And ever since you went back you have been working and earning your pay, is that correct? A. That is correct.
“Q. You don’t figure that Alexander Shipyard is giving you anything, do you ? A. No.”

He further said:

“Q. And you figure you give a full hour’s work for an hour’s pay, is that right? A. Yes, sir.
“Q. And you give a full day’s work for a full day’s pay? A. Yes, sir.
"Q. And you figure at the end of the week when you get your pay check you have earned every nickel of it, is that right? A. That’s right.
“Q. And you don’t — they aren’t adding anything to your pay check because they like you, or feel sorry for you? A. No, they haven’t.
“Q. They pay you what you earn and not a nickel more and not a nickel less, isn’t that right? A. That’s right; that’s right.”

He was asked: “Since September 29th, 1952, you have worked as about as regular as anybody else on the job?” and he answered “Yes, approximately.”

And it appears that the work which plaintiff did after returnnig was very similar to that which he had done previously. On the smaller lathe he was able without manual or mechanical assistance to put the lighter material into the lathe and to remove it after it had been processed. Prior to the accident, in his work on the larger lathe the material to be processed was sometimes so heavy that he required assistance in placing it and in removing it. Except for this, the work on the smaller lathe was very similar to the work on the larger lathe.

Thus there can be no doubt that plaintiff fully earned the wages which have been paid him since he returned to work on September 29, 1952, and which he is still receiving. The result is that there has been no interruption in the tolling of prescription by the payment of anything which could be considered as compensation, “or in lieu thereof.”.

Counsel for plaintiff, however, maintain that prescription did not commence to run at the time of the accident for the reason that it was not known at that time what would be the ultimate condition of plaintiff and that, as a matter of fact, that ultimate condition is not yet known and was not known when, under date of February 3, 1954, Doctor Simon, the medical expert, finally discharged plaintiff, saying:

“We are discharging him not as cured but as having reached the maximum rehabilitation. The possibility of recurrence of an acute sciatic syndrome is still present.”

Counsel say that since plaintiff, even at that time, did not know the full extent of his disability, the prescription did not commence to run at least until that time.

Even if it be true that the extent of plaintiff’s disability was not known at the time of the accident, nevertheless, because of the two year prescription which is provided as a result of the amendatory act, Act 29 of 1934, LSA-R.S. 23:1209, his claim was barred because proceedings were not begun within two years from the date of the accident.

It is true that, as is shown in Wallace v. Remington Rand, Inc., supra, the prescription of one year does not commence to run until the extent of the injury has manifested itself and that therefore, if it be conceded that the extent of plaintiff’s injury did not manifest itself until the ultimate discharge by the medical expert in 1954, nevertheless the two year prescription which is provided in all cases commenced to run at the time of the accident and had fully accrued long before the suit was filed.

Counsel for plaintiff stoutly maintain that the two year prescription has no application to such a case as this, that it does not apply except where the injury does not “develop immediately after the accident.” We find ourselves unable to accept or, in fact, to understand this argument. It is in this identical type of case, where manifestation of the injury is delayed, that the two year prescription is applicable.

In Wallace v. Remington Rand, Inc., supra [229 La. 651, 86 So.2d 526], the Court, referring to the necessity of some time limit within which all such litigation must be instituted, said:

“ * * * It is to be remembered that the statute does not countenance an unseasonable delay for filing compensation claims in any case as it provides a peremption of two years from the date of the accident within which all suits must be instituted.”

It necessarily follows that if the extent of the injury was known at the time of the accident the prescription of one year would bar this suit since the payment of earned wages did not interrupt the running of that prescription. It is equally true that if the extent of the injury did not manifest itself at once, the action would be barred by the prescription of two years for the reasons already set forth.

The principle which we think is applicable here is well stated in the reasons given by the District Judge and quoted by the Court of Appeal for the First Circuit in Abshire v. Cities Service Refining Corp., 50 So.2d 307, 308:

“ ‘The jurisprudence of this State has been established to the effect that if an injured employee continued to work for and to receive regular wages from the same employer after the injury is sustained, the prescription of one or two years, as provided by Section 31 of Act 20 of 1914, as amended, LSA-R.S. 23:1209, will begin to run from the date of the accident unless it is established that the payment of wages after the accident was in lieu of or in the nature of compensation and therefore had the legal effect of interrupting prescription. Thornton v. E. I. Du Pont De Nemours & Co., 207 La. 239, 21 So.2d 46; D’Antoni v. Employers’ Liability Assur. Corp., 213 La. 67, 34 So.2d 378; Carlino v. United States Fidelity & Guaranty Co., 196 La. 400, 199 So. 228; Arnold v. Solvay Process Co., 207 La. 8, 20 So.2d 407; Michel v. Maryland Casualty Co., La.App., 33 So.2d 144; Walker v. Mansfield Hardwood Lumber Co., La.App., 35 So.2d 610.’”

We deem it advisable to mention the fact that, in his reasons for judgment, the District Judge said that if he had not maintained the plea of prescription he would have had to render judgment in favor of plaintiff since he felt that “the evidence would justify * * * holding” that plaintiff “was totally and permanently disabled.”

This holding does not change our views on the subject but merely serves to accentuate the rather remarkable fact that in innumerable cases within the past years it has been held that an employee may return to work very similar to that which he had been doing before sustaining injury and may earn and receive full pay for that work and yet, as a result of interpretations of our workmen’s compensation laws, be held to be totally permanently disabled.

The judgment appealed from is affirmed at the cost of appellant.

Affirmed.


text:
    Fernin J. FARRELL v. MIKE PERSIA CHEVROLET CO., Inc.
    No. 20885.
    Court of Appeal of Louisiana. Orleans.
    Jan. 2, 1957.
    Rehearing Denied Jan. 14, 1957.
    Writ of Certiorari Denied March 1, 1957.

      Adams & Reese, New Orleans, for defendant-appellant.
    Donald V. Organ, New Orleans, for plaintiff-appellee.
   JANVIER, Judge.

Plaintiff, an insurance solicitor, seeks recovery in tort from defendant, a corporation engaged in the sale and repair of automobiles for the alleged illegal retention of his 1953 Chevrolet automobile used in his business and, in an abortive attempt to negotiate for the purchase of a new car, left with defendant in order that its value as a “trade” might be agreed upon. He alleges that he executed a written offer for the purchase of a new car and that his offer was rejected.

Defendant admits that the car was left with it by plaintiff, but avers that this was the result of a written contract entered into between it and plaintiff in which all the terms of the trade and purchase were set forth; that it has always been ready, willing and able to complete the transaction by the delivery of the new car to plaintiff, but that he has refused to comply with the terms of the contract. Defendant prays that the suit be dismissed at the cost of plaintiff and that he be ordered to comply with the terms of the written contract.

In his petition plaintiff prayed for judgment for the alleged value of the 1953 automobile, which value he fixed at $1,500, for $1,500 for embarrassment, $1,500 for mental anguish, $2,000 for the loss of the use of the car and other personal property which he alleges was in it, and $88 as the value of the other items of personal property.

From a judgment for $1,859.76 in favor of plaintiff, defendant has appealed suspen-sively.

Plaintiff has answered the appeal praying that the amount awarded be increased.

Since the total claim as set forth in the petition is $6,588 and since no part of the claim represents physical injury, there might be some doubt as to whether there is jurisdiction in this Court since, unless there are physical injuries or claims for workmen’s compensation, our jurisdiction is limited to disputes which involve not more than $2,000. However, as a result of several very recent decisions of the Supreme Court, we think that the rule is now established that monetary jurisdiction on appeal depends upon the evidence in the record and cannot be determined as a result of a reading of the pleadings or of affidavits submitted. See Goins v. Gates, 229 La. 740, 86 So.2d 691; Castleberry v. Ethridge, 223 La. 466, 65 So.2d 138; Duplantis v. Locascio, 223 La. 11, 64 So.2d 624.

Since, as a result of our perusal of this record, we feel that under no circumstances may the judgment be increased to more than $2,000, we conclude that, under the cited decision, we have jurisdiction. Had the record indicated that liability might exceed $2,000, a very interesting jurisdictional problem might have been presented for then had we transferred the matter to the Supreme Court and had that Court not agreed with our appreciation of the amount in dispute, it might have retransferred the matter back to us.

When the matter came to trial in the District Court, it immediately became apparent that the all important issue was the question of whether the document relied on by defendant as a contract had in fact ever become a binding agreement as a result of the timely acceptance by defendant of the offer made by plaintiff and evidenced by the document in question.

Plaintiff conceded that he had actually signed the offer to buy the new car and that all of the terms of the offer except the total price of the new car were set forth in the document produced by defendant, but he contended that his said offer had been rejected by defendant and that he had left the document in defendant’s possession. That thus there had never come into existence any contract.

Defendant, on the other hand, producing the document, contended that it was a completed contract and that thus plaintiff should not be permitted to introduce any evidence tending to vary or contradict the terms of that contract, particularly since no plea of fraud was made by plaintiff, and, on this contention, counsel for defendant objected to any evidence tendered by plaintiff.

In answer to this objection counsel for plaintiff argues that there has been no effort to vary or contradict the terms of a written contract, but that the evidence was tendered to show that no contract had ever come into existence and counsel contends that no plea of fraud was necessary since he did not sue on the contract, which was offered by defendant in answer to the petition of plaintiff. The argument is that since, under our system of pleading, there is no opportunity for rebuttal pleading, plaintiff could not expressly plead fraud after the contract was produced and relied upon by defendant. Counsel for plaintiff further contends that, as a matter of fact, the petition of plaintiff should be interpreted as a plea of fraud.

It seems to us that the allegation of plaintiff that, though he had signed an offer, this offer was immediately rejected, when considered in connection with the averment of defendant that the offer was accepted, constitutes a charge that the acceptance which is relied on by defendant was placed on the document after it had first been rejected. Thus, we feel that the petition should be interpreted as charging fraud.

Then, too, the defense relied on here is not an attempt to vary or contradict the terms of a written contract, but is rather an effort to show that a contract never came into being. Surely if an offer is made and it is allowed to remain in the possession of the other party who later produces it and says that there was timely acceptance of it, evidence to show that the acceptance was affixed after it had first been rejected, does not tend to vary or contradict but rather tends to show that no contract ever came into being.

We considered this identical contention in Harvey v. Aaron, 2 La.App. 288. The facts found there cannot be distinguished from those appearing here. There the plaintiff executed a written offer to purchase real estate. He contended that the offer had been immediately rejected. Later the offer was produced and on it there appeared the acceptance of the owner of the property. When evidence was tendered to show that the offer had first been rejected, it was objected to on the ground that it would tend to contradict or vary the terms of a written contract. We held that the evidence was not tendered for the purpose of varying or contradicting the terms of the contract but to show that there had never been a contract, saying:

“On the trial of the case plaintiff’s counsel objected to parol evidence to prove a rejection of defendant’s offer upon the ground that it tended to alter or contradict the written offer of defendant which had been accepted by the owner of the property. The objection was not sustained and we do not think it should have been since we fail to see how it contradicts the terms of the offer which was to be irrevocable before November 12th so far as defendant was concerned but subject to rejection by the owner of the property at any time.”

For these reasons, first, because fraud seems to be pleaded in the allegations of the petition and, second, for the reason that the evidence offered was admissible as tending to show that no contract was ever entered into, the evidence tendered by plaintiff was properly admitted.

The evidence of plaintiff is not in any sense contradicted by anything offered by defendant. In fact, defendant produced no evidence at all except the document relied upon as a contract. Only one of the employees of defendant, who was mentioned by plaintiff in his version of the affair, appeared as a witness and he was called by plaintiff for cross-examination under LSA-R.S. 13:3662, Act 115 of 1934.

In the absence of any such contradictory evidence, we find that counsel for plaintiff in his brief has set forth with commendable accuracy just what plaintiff said had occurred, and we are convinced that not only is that the correct version of the affair but also that it is told in detail in counsel’s brief. We therefore quote the following from that brief:

“On January 20, 1956, the appellee Fernin J. Farrell, went to the premises of the appellant, Mike Persia Chevrolet Company, Inc., for the purpose of negotiating the purchase of a new automobile. Appellee owned and was driving a 1953 Chevrolet Belaire which he had purchased from the defendant previously. The salesman who sold ap-pellee the automobile was one Tom Conners. While at the defendant’s premises on January 20, 1956, the ap-pellee negotiated with Conners regarding the possible purchase of a new automobile and the trade-in of the car which he owned. The total sum of these negotiations amounted to the ap-pellee signing the document, which the defendant subsequently set up as a defense to this suit, and its immediate rejection by the appellant. This document on its face called for the delivery of a new 1956 model automobile and the trading in of the 1953 Chevrolet as partial payment leaving a cash balance of $1,420.00, plus three per cent (3%') sales tax on an unspecified sum of money. Across the face of the document in question appears these words: ‘This order is not binding until accepted by dealer.’ Underneath this wording is a place for the purchaser’s signature, and underneath that is a place for the dealer to note his acceptance. After the appellee signed this document, it was taken by Mr. Conners to a superior at the defendant’s premises, who informed the appellee that his proposition could not be accepted, and, at the same time, made to the plaintiff a counter-offer which called for an additional payment over and above the value of the trade-in, of some $1,535.00. The plaintiff rejected the counter-offer, left the defendant’s premises, taking with him his 1953 Chevrolet.
“Plaintiff later negotiated with another Chevrolet dealer and received an offer which was substantially better than the one which the defendant had made him.
“On January 23, 1956, the appellee, while driving his automobile by the premises of the defendant, saw Con-ners, with whom he was friendly, and stopped and informed him of the proposition made by the other dealer. Con-ners then requested that appellee discuss the matter with a sales manager for the defendant. Appellee did so, and this sales manager, whose name is Conti, requested that plaintiff leave his automobile for reappraisal in order that a possibly better offer could be made to the appellee. The appellee advised that he was in need of an automobile for his business, and the defendant allowed him to use one of its automobiles while his was being reappraised.
“The appellee returned to the defendant’s premises the same day, January 23, 19S6, bringing with him the automobile which had been loaned him by the defendant. He requested to see Tom Conners; after a wait of approximately ten minutes Conners made an appearance and immediately requested of the appellee the keys to the company automobile which appellee had been using. The appellee gave Conners the keys and was then advised that he would have to see a Mr. Oubre, still another sales manager for the defendant. Appellee went into Mr. Oubre’s office, and Oubre demanded of him why was he so hard to please.
“His words were offensive to appel-lee, who so advised Oubre, and further advised him that he wanted his keys to his automobile, as he was going elsewhere to do business. Oubre then took the keys to appellee’s automobile, which had been on top of his desk, placed them in the desk drawer, and advised appellee that he, appellee, had bought another automobile and that ‘that was business.’
“The appellee demanded his keys and they were refused him. The appellee sought an audience with Mike Persia, Sr., and was told that he was out of the city.
“The appellee then reported the matter to the police, to the District Attorney’s office, and consulted counsel.
“From the time that plaintiff signed the document, which the defendant pleads as a defense, on January 20, 19S6, until the same document was shown him during the trial, he had not seen it. He was never advised by the defendant or any of its agents that they desired to accept any offer which he had made. Any offer which was made in the written document had been rejected by the defendant at the time the document was signed by appellee.”

We would add only the rather remarkable fact that defendant did not even produce the employee who is supposed to have executed the acceptance of the document to show that the acceptance was affixed when the offer was made and was not placed on the document after the offer had first been rejected.

Because of the conclusions which we have reached it is not necessary that we discuss the other contentions of plaintiff.

We think the evidence justifies the amount awarded. However, since plaintiff states that there is a chattel mortgage on the automobile which defendant now has, it will be necessary that he clear the title to that car for, since he is claiming that defendant, by retaining his car owes him the-full value, it follows that he must deliver a clear title.

Since, by the unlawful detention of his car, plaintiff has been deprived of its use for almost a year, it would not be proper to order that the car be returned to him. Justice will best be served by requiring that defendant retain the car and pay plaintiff the value which it had when it first came into its possession.

The judgment appealed from is affirmed at the cost of appellant, this decree to become executory upon delivery by plaintiff to defendant of a clear unencumbered title to the 1953 automobile in question.

Affirmed.


author: HARDY, Judge.

text:
    Ray CARPENTER, Plaintiff-Appellant, v. S. D. MADDEN et al., Defendants-Appellees.
    No. 8650.
    Court of Appeal of Louisiana. Second Circuit.
    March 27, 1957.
    Rehearing Denied April 26, 1957.
    Writ of Certiorari Granted May 10, 1957.
    John G. Gibbs, Natchitoches, for appellant.
    Arthur C. Watson, Julian E. Bailes, Natchitoches, for appellees.
   HARDY, Judge.

This action was instituted by plaintiff as a rule to show cause why compensation payments at the rate of $30.00 per week for a period of 400 weeks should not be decreed to be due and exigible. Named as defendants were the commercial partnership of Madden & DeWitt, and the individual members thereof, S. D. Madden and Doyle DeWitt, judgment debtors of plaintiff. After hearing on the rule there was judgment in favor of defendants and against the plaintiff in rule, from which the latter has appealed.

In this court defendants have filed a motion to dismiss the appeal, the pertinent recitals of which are as follows:

“1.
“That since the dismissal of this matter by the Tenth Judicial District Court in and for the Parish of Natchi-toches, Louisiana, that the defendants have paid to the plaintiff herein the total sum of $3,404.06, which amount is the total due the plaintiff bringing his compensation up through this date, together with all costs, interest and attorney’s fees, as is shown by writ of fi fa attached hereto.
“2.
“That this sum was accepted by the plaintiff and his attorneys without reservation, and the plaintiff has likewise agreed to accept the future compensation payments as they fall due.
“3.
“That, therefore, this appeal should be dismissed at the cost of appellant.”

No objection to the motion has been filed in this court, nor has any effort been made on behalf of plaintiff to controvert the recitals made in the motion as above quoted. An appellate court is at liberty to assume that the facts set out in a motion to dismiss are admitted if the motion has been submitted without dissent by opposing counsel as to the state of facts alleged therein. State ex rel. Payne v. Irion, 163 La. 1019, 113 So. 360; Attaway v. Melton, La.App., 88 So.2d 417.

Accordingly, the motion is allowed and plaintiff’s appeal is dismissed at his cost.


author:
      REGAN, Judge. JANVIER, Judge
      McBRIDE, Justice

text:
    STATE of Louisiana ex rel. Augustus G. WILLIAMS v. RECORDER OF MORTGAGES FOR THE PARISH OF ORLEANS et al.
    No. 20856.
    Court of Appeal of Louisiana. Orleans.
    April 15, 1957.
    Rehearing Denied May 13, 1957.
    Writ of Certiorari Denied June 28, 1957.
    Frank P. Krieger, New Orleans, for plaintiff-appellant.
    Jorda S. Derbes, New Orleans, for Recorder of Mortgages for the Parish of Orleans, defendant-appellee.
    Floyd J. Reed, New Orleans, for Collector of Revenue, State of Louisiana, defendant-appellee.
   REGAN, Judge.

The plaintiff, Augustus G. Williams, the vendee of the real estate which provoked this litigation, prays for a writ of mandamus to compel the defendants, Rufus W. Fontenot, Collector of Revenue for the State of Louisiana, and Francis J. Dem-arest, Sr., the Recorder of Mortgages for the Parish of Orleans to cancel and erase from the records of the Mortgage Office the inscription of a judgment for corporation franchise taxes in favor of the State of Louisiana and against the W. E. T. Realty Company, Inc., the vendor from whom plaintiff individually acquired the property.

Defendants answered and, in substance, asserted that the plaintiff is not entitled to a cancellation of the inscription of the judgment for the reason that he had intimate knowledge of the suit by the State against the W. E. T. Realty Company, Inc., since the record in that suit discloses that the plaintiff was attorney for and Vice President of that Corporation and, as an officer thereof was personally served with citation, therefore, he was thoroughly acquainted in both capacities with the pleadings and the full effect of the judgment rendered therein; that the act of sale from the W. E. T. Realty Company, Inc., to him individually purportedly passed on January 3, 1949, but not registered in the Conveyance Office until February 14, 1949, the same date as the judgment resulting from the above suit was recorded in the mortgage office was simply a simulated sale, — a surreptitious attempt to place this property beyond the reach of the judicial mortgage which had been legally acquired by the State, and, therefore, the registration of the sale should be treated as though it had never existed.

From a judgment in favor of the defendants dismissing plaintiff’s suit he has prosecuted this appeal.

The general chronological facts are relatively undisputed and the details thereof are significant to emphasize the character of the case. The record reveals that on December 8, 1948, the Collector of Revenue for the State of Louisiana, brought suit against the W. E. T. Realty Company, Inc. for corporation franchise taxes for the years 1945 and 1946 in the amount of $758.03 and the suit was served on the Vice President of that corporation, Augustus G. Williams; the corporation filed four distinct pleadings to this suit and, in each instance, the names of Augustus G. Williams and Delvaille H. Theard appeared as co-counsel of record. The case was tried and, on February 11, 1949, judgment was rendered and signed in favor of the Collector of Revenue as prayed for and no appeal was perfected therefrom. On February 14, 1949 at 11:30 a. m. the Collector of Revenue for the State of Louisiana recorded its judgment of February 11, 1949 in the Mortgage Office. In the process of recordation the clerk omitted the amount of the judgment and simply inscribed therein “that there be judgment * * * in favor of W. A. Cooper, Collector of Revenue of the State of Louisiana condemning * * * W. E. T. Realty Company, Inc., to pay to (Collector of Revenue) corporation franchise tax, penalty and interest on attorney’s fees and all costs, and that the lien and privilege of the State be recognized and enforced according to law.”

The record further reveals that on January 3, 1949, by act before Frank P. Krieger, Notary Public, the real estate which is the subject of this mandamus suit was allegedly sold by the W. E. T. Realty Company, Inc. to Augustus G. Williams, its attorney and Vice President, but it was not until February 14, 1949, or forty-two days thereafter that this act of sale was registered in the Conveyance Office, which was the same day that the Collector of Revenue recorded the State’s judgment in the Mortgage Office.

The fundamental question posed for our consideration is whether the sale from the W. E. T. Realty Company, Inc. to Williams was simulated?

The whole tenor of the record leads us to the inevitable conclusion that the sale from the W. E. T. corporation to Williams was simulated — a surreptitious attempt to place this property beyond the reach of the judicial mortgage which had been legally acquired by the State. The record establishes beyond a shadow of a doubt that when the State sued the W. E. T. corporation for corporate franchise taxes Williams was its attorney and Vice President and throughout those proceedings he was intimately acquainted with both the pleadings and the full effect of the judgment which was rendered therein on February 11, 1949; he knew that it would subsequently be recorded and, thereafter operate as a judicial mortgage against the property of the W. E. T. corporation; it was shortly thereafter, or on February 14, 1949, that his notary registered a purported sale, dated January 3, 1949, which was forty-two days after Williams had acquired the property from the W. E. T. Realty Company, Inc. Williams, in endeavoring to explain the unusual delay of forty-two days in registering the act or until the very day on which the Collector of Revenue recorded his judgment, asserted “I think it was just an oversight on (Frank P.) Krieger’s part.”

The record further reveals that this property was purportedly acquired by Williams from the W. E. T. corporation in the year of 1949 without the payment of any consideration other than the assumption of the existing mortgage, which significantly was approximately $800 less than the original mortgage given by the W. E. T. corporation to the Union Savings & Loan Association in the year of 1944 on this piece of property.

We are fully cognizant of the fact that sales are often consummated in this manner and they are legal and valid provided, of course, the environmental characteristics of the transaction reflects good faith, however, even though we figuratively used the lighted lantern of Diogenes, we have failed to find any evidence thereof in this transaction; on the contrary, we recognize an abortive effort to defeat the state’s judgment for corporate franchise taxes.

In Reeves v. Felder, La.App.1942, 6 So. 2d 688, 691, the court in holding that the sale was simulated observed:

“Another circumstance which, in our opinion, reflects on the integrity of the sale, arises from the fact that it was more than six months after it had been executed that the deed was filed for record in the Conveyance Office of the Parish. That, to say the least, was a bit unusual and the defendant has not given a very satisfactory explanation of that long delay.”

In Rogers v. Brown, La.App.1943, 12 So.2d 68, 70, the court in passing on a similar situation asserted:

“It appears to us that the purported sale to him was not confected in good faith. The written act of sale of October 27th, 1941, was executed with knowledge that a writ of provisional seizure had been ordered and executed, save on the automobile in question. It appears to us that the parties in interest expected the said automobile to be provisionally seized, and to circumvent seizure, the cash deed was executed.”

In Houghton v. Houghton, 1928, 165 La. 1019, 116 So. 493, 495, the court said:

“A simulation is a feigned, pretended act; one which assumes the appearance without the reality. Being entirely without effect, it is held not to have existed, and, for that reason, it may be disregarded or attacked collaterally by any interested person.”

Assuming arguendo that the sale was not simulated, a view which plaintiff believes to be most favorable to his case, we are then of the opinion that the judgment of the State, which was recorded in the Mortgage Office at 11:30 a. m. February 14, 1949, was prior to the registration of the act of sale in the Conveyance Office, although they both occurred on the same day, for the reason that plaintiff, in alleging prior registration on the same day, caused time to become the essence of the conflict and, therefore, the burden was upon him, or his notary, who possessed that knowledge, to prove time of registration of the act and although they were offered the opportunity they failed to do so.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.

JANVIER, Judge

(concurring).

I concur in the opinion and in the decree although I have some doubt on the question of whether the charge that the sale was a simulation is properly before us.

It is true that the Recorder of Mortgages expressly raised that issue and charged that the said sale was a simulation.

As I have already stated, I have some slight doubt as to whether the Recorder of Mortgages could be heard to challenge the reality of the transaction. His only interest was to establish the fact that the judgment, which was left with him for recordation, was recorded promptly and that the error which he made in omitting the amount of the judgment should not have the effect of nullifying the entire recordation.

If the reference by the Collector of Revenue to the sale as being “purported” may be construed as a charge that that sale was a simulation, then I thoroughly concur in the view that it was a simulation. However, whether or not it was a simulation I am well convinced that the decree which affirms the judgment against the relator is correct, for the reason that I believe that the record justifies the conclusion that the sale to Williams was not shown to have been registered in the Conveyance Office prior to the time at which the judgment in favor of the Collector of Revenue was recorded in the Mortgage Office.

It must be remembered that the sale, whether real or purported from the W. E. T. Realty Company, Inc., was passed forty-two days "before it was filed for registration in the Conveyance Office, and it must also be remembered that Williams well knew that the judgment in favor of the Collector of Revenue had been rendered and signed and that if recorded before the registration of the purported sale to him, it would be effective against the property purportedly transferred to him. Thus the question of whether his sale was registered first was of vital importance and he should have produced evidence to the effect that it was registered before the judgment was recorded.

For these reasons I concur in the opinion and decree.

McBRIDE, Justice

(dissenting).

The prevailing opinion states that the fundamental question posed for the court’s consideration is whether the sale was simulated. I do not believe that simulation vel non should be considered for the reason that the Collector of Revenue, the creditor, has not raised the question and the other defendant in the mandamus proceeding, the Recorder of Mortgages for the Parish of Orleans, had not the right to> do so, for the simple reason he has no interest in the matter. I concede that a simulated or pretended act is entirely without effect and may be disregarded or collaterally attacked by any interested person. No interested person has attacked the verity of the sale involved in this case.

The fundamental question involved, to my mind, is whether a judicial mortgage recorded at 11:30 a. m., February 14, 1949, affected property which was sold by the judgment creditor on February 14, 1949. In other words, which of the transactions is to be given priority by the court. The good or bad faiih of relator is immaterial.

Prior to the advent of Act No. 215 of 1910 (now LSA-R.S. 9:5141), by the terms of LSA-C.C. art. 3358, the creditors, whose mortgage inscriptions have been made on the same day, possessed a concurrent mortgage, and no distinction was made between an inscription made in the morning and that made in the evening even though the recording officer may have noted the difference.

However, Act 215 of 1910, LSA-R.S. 9:5141, had the effect of repealing LSA-C.C. art. 3358, and said section provides thus:

“All acts or instruments of writing which import mortgage or privilege, when filed for record with the recorder of mortgages, shall be immediately indorsed by him with the date, hour, and minute of filing which indorsement shall be recorded with the registry of the instrument.
“All such instruments shall be effective against all persons from the time of their filing.”

I can find no statutory law or jurisprudence as to the priority which should be given acts of conveyance which may have been registered in the Conveyance Books in the Parish of Orleans on the one day or as between a mortgage and a conveyance which were recorded on the same date.

LSA-C.C. arts. 2254, 2262, 2264, and 2266 found in that section of the Code entitled “Of registry” provide when the registry of a deed is effective as to third persons.

LSA-C.C. art. 2254:

“It shall be the duty of the recorder to indorse on the back of each act deposited with him the time it was received by him, and to record the same without delay in the order in which they were received; and such acts shall have effect against third persons only from the date of their being deposited in the office of the parish recorders.”

LSA-C.C. art. 2262:

“In the parish of Orleans, acts, whether they are passed before a notary public or otherwise, shall have no effect against third persons, but from the date of their being deposited in the office of the register of conveyances.”

LSA-C.C. art. 2264:

“No notarial act concerning immovable property shall have any effect against third persons, until the same shall have been deposited in the office of the parish recorder, or register of conveyances of the parish where such immovable property is situated.”

LSA-C.C. art. 2266:

“All sales, contracts and judgments affecting immovable property, which shall not he so recorded, shall be utterly null and void, except between the parties thereto. The recording may be made at any time, but shall only affect third persons from the time of the recording.

“The recording shall have effect from the time when the act is deposited in the proper office, and indorsed by the proper officer.”

The use of the words “to register,” “to record,” and “to deposit” were used indifferently by the Legislature as if those words were synonymous. It also seems to be clear that the provisions of LSA-C.C. arts. 2254 and 2264 apply to- the parishes outside of Orleans; arts. 2262 and 2266 apply to registry in the Parish of Orleans. See Schneidau v. New Orleans Land Co., 132 La. 264, 61 So. 225.

LSA-C.C. art. 2266 explicitly provides that the recording may be made at any time but shall only affect third persons from the time of recording.

I do not believe that hours or parts of days are to be considered when computing the effectiveness of the registry of a conveyance in Orleans Parish, and that when the act of sale involved in this suit was recorded on February 14, 1949, it had effect as to third persons from that date, that is to say from the beginning of February 14, 1949. On the other hand, we know that the judicial mortgage was recorded at 11:30 a. m., on February 14, 1949, and was therefore effective only for a portion of that day. Under the statutory law as it now stands the sale made by the W. E. T. Realty Co., Inc., which was recorded on February 14, 1949, regardless of the time the act was recorded on that particular day, should be considered as having been made free and clear of the judicial mortgage. True my position is arbitrary, but the question must be decided solely from an arbitrary standpoint.

I do not agree that it was incumbent upon the relator to make proof that the act of sale was deposited in the Conveyance Office before 11:30 a. m. of the day in question, as that would have entailed the reception of testimonial proof because the Register of Conveyances did not stamp upon the act the exact hour and minute at which it was deposited in his office for registry, and even if he had done so such notation would have been of no effect as the law does not require this be done. The rule is that parol evidence is inadmissible to prove or affect title to real estate. To admit such evidence to show when the act became effective as to third persons would' do violence to that rule.

I believe that the relator is entitled to the relief he seeks and therefore respectfully dissent.

      . No. 286937 of the docket of the Civil District Court for the Parish of Orleans.

      . Forty-two days after the purported acquisition of the property.

      . Recorded in Mortgage Office February 14, 1949 at 11:30 a. m.

      . LSA-R.S. 13:5033 provides in part that “all judgments sustaining any such claim shall be rendered and signed on the same day, and shall become final and executory on the fifth calendar day after renditiou.”

      .Plaintiff’s counsel insists that this omission of the amount invalidated the judicial mortgage, and cites principally in support thereof Lirette v. Carrane, 1865, 27 La.Ann. 298.

      . Plaintiff contends that even if the State’s judgment was properly recorded it cannot operate as a judicial mortgage upon the property of plaintiff for the reason that the Stale's judgment became a judicial mortgage on February 14, 1949 at 11:30 a. m., LSA-C.O. art. 3322, whereas plaintiff’s act of purchase was effective for the whole day of February 14; 1949, LSA-C.C. art. 2262.