author: DENNIS, Justice.

text:
    STATE of Louisiana v. Robert HOWARD.
    No. 56861.
    Supreme Court of Louisiana.
    Jan. 19, 1976.

      Wilson R. Ramshur, Willis & Ramshur, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., Cynthia Picou Bran-ton, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

The defendant Howard was convicted of murder, La.R.S. 14:30, and sentenced to life imprisonment. Upon appeal, eight assignments of error are urged.

The defendant was charged with the murder of James Davis at about 6:45 A. M. on April 20, 1971, at the Louisiana State Penitentiary at Angola. Both the defendant and the victim were inmates. The killing occurred during a series of fights which broke out after some seven hundred inmates finished breakfast and gathered outside a mess hall. The State’s case essentially consisted of the testimony of three correctional officers who stated they saw the defendant, Howard, chase and fatally stab the victim, Davis, after he had slipped and fallen to the ground. Howard admitted stabbing the victim but contended he had done so in self-defense before chasing him. According to the defendant’s version, which was corroborated to some extent by the testimony of other inmates, the stabbing occurred earlier during an attack upon Howard by Davis in which Howard had taken the knife from Davis. Howard contended that he chased Davis after the stabbing, and both stumbled and fell with the knife harmlessly striking the ground.

ASSIGNMENT OF ERROR NO. 1

Defendant urges in this assignment of error that the trial judge erred in failing to require the State to divulge the details of the State’s evidence regarding the commission of the crime. Defendant concedes that it is well settled that defendant is not entitled to the pre-trial discovery of the details of the State’s evidence. State v. Thomas, 310 So.2d 517 (La.1975); State v. Browning, 290 So.2d 322 (La.1974). However it is contended that an accused in a criminal prosecution is now entitled to discover such evidence under the provisions of Art. I, § 13 of the La.Constitution of 1974, which in pertinent part, provides:

“ * * * In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him * *

Art. I, § 10 of the La.Constitution of 1921, in pertinent part provided:

“In all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him * ‡ *»

Neither the slight change in language nor the debates at the convention evince an intention to overrule existing jurisprudence. See Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 44 (1974). There is no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, defendant contends that the trial court erred in rescinding its order for a preliminary examination. An indictment was found by the grand jury on September 14, 1973, and one judge of the district court on December 4, 1974, granted a preliminary examination to be held on January 9, 1975. However, the matter did not come up on that date, and on January 16, 1975, another judge of the same court rescinded the order for the preliminary examination as having been improvidently granted. Defendant argues that the court abused its discretion by depriving him of a procedural device designed to assist him in his defense and that, once ordered, the preliminary examination should not have been withdrawn from him.

When the motion for a preliminary examination is made before the finding of an indictment, the court is mandated to grant it in felony cases. Art. I, § 14 La. Const. (1974). However, when it is made after the finding of the indictment, the matter is discretionary. After the defendant has been indicted by a grand jury, the court may rescind its order for a preliminary examination. La.C.Cr.P. Art. 292 (amended by Acts 1974, ex.sess. No. 16, § 1, effective January 1, 1975). This rule is consistent with the due process requirements of the Fourteenth Amendment of the United States Constitution, in that a valid indictment returned by a properly constituted grand jury conclusively determines the existence of probable cause. See Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Therefore, the district court was justified in rescinding its order granting the preliminary examination.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

This assignment was made because of the denial of a motion to quash grounded on the undue length of time, approximately three and three-fourths years, between the commission of the offense on April 20, 1971, and the trial held January 16, 1975. In his per curiam the trial judge explained that the prosecution was originally instituted in 1971, but because of questions pertaining to the composition of the former grand jury, a new indictment was returned and filed on September 14, 1973. Defendant escaped from the penitentiary on December 3, 1972, was recaptured on November 20, 1973, escaped again on September 1, 1974 and was recaptured the same day. The trial was initially set for April 9, 1973 but was not held because of defendant’s absence.

The Code of Criminal Procedure provides that no trial shall be commenced in capital cases after three years from the date of institution of the prosecution. La.C.Cr.P. art. 578. The three year limitation period is applicable since defendant was prosecuted for murder, which has been classified as a capital offense for purposes other than the imposition and execution of the death penalty. State v. Holmes, 263 La. 685, 269 So.2d 207 (1972). However, the three-year period of limitation established by the article was interrupted and commenced to run anew from the end of each period of escape. La.C.Cr.P. art. 579. State v. Montgomery, 257 La. 461, 242 So.2d 818 (1970). Thus, regardless of whether the prosecution is considered to have been instituted in 1971 or in 1972, the case was brought to trial within the limitation set by statutory law, due to the interruptions of the period caused by defendant’s escapes.

Nevertheless, the statutory law does not provide the only criterion which must be met by the State in affording a defendant his constitutional right to a speedy trial. State v. Moore, 300 So.2d 492 (La.1974); State v. Gladden, 260 La. 735, 257 So.2d 388 (1972). Guidelines for determining whether a criminal defendant has been denied his federal constitutional right to a speedy trial were set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The factors to be considered are the length of the delay, the reasons for the delay, the resulting prejudice to the defendant, and the defendant’s assertion of his right to a speedy trial. State v. Moore, supra.

Although the length of the delay in the instant proceedings was considerable, much of it was due to defendant’s own actions, and the record is devoid of any attempt by defendant to assert his right to a speedy trial. Defendant argues that he was unable to produce some fifty witnesses because of the shift and change of the prison population during the long delay. However, he did not cause any subpoenas to issue which were not served, and he failed to identify any particular witness whose presence was unobtainable due to the delay. Under all of the circumstances we conclude that the defendant was not denied his constitutionally guaranteed right to a speedy trial.

We find no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 4

On the day of the trial defendant orally moved for inspection of the alleged murder weapon. The trial judge denied the motion for the reason that it came too late. The defendant candidly argues that we should extend our previous rulings and hold that a refusal to allow discovery and inspection of physical evidence constitutes a denial of due process.

As a general proposition the State is not required to produce the physical evidence it intends to use at the trial. State v. Collins, 308 So.2d 263 (La.1975). Exceptions to this rule have recognized the right of a defendant to view and copy his written confession in the possession of the prosecutor, State v. Dorsey, 207 La. 928, 22 So.2d 273 (1945); to obtain production of a taped confession, State v. Hall, 253 La. 425, 218 So.2d 320 (1969); or some of the confiscated narcotic- evidence in a narcotic prosecution. State v. Migliore, 261 La. 722, 260 So.2d 682 (1970).

In State v. Woodruff, 281 So.2d 95 (La.1973) another exception of uncertain dimensions was created. In that case the defendant, who relied solely on a claim of self-defense in a murder case, was denied information sought by bill of particulars concerning a gun, which was not the murder weapon, that may have been in the victim’s possession at the time of the slaying. Although the State in its opening statement and in its presentation of the State’s case disclosed the existence of the gun and its location in relation to the victim’s body, this Court held that the trial court’s refusal to order production of the information sought constituted a denial of due process in violation of the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). In those cases, the United States Supreme Court held that it is a denial of due process for the prosecution to suppress evidence, which was not introduced at trial, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Thus, the Woodruff case may represent an extension of these decisions since it held that later introduction of material physical evidence favorable to the accused could not cure the deprival of defendant’s rights effected by refusal of pre-trial discovery. The majority opinion reasoned that had the State complied with the bill of particulars defendant may have been able to develop additional evidence that would indicate the victim owned or had possession of the gun.

The circumstances of the instant proceeding do not present the same possibility of prejudice to the defendant’s rights. The prosecution evidence consisted of eyewitnesses who testified they saw the defendant chase the victim across the prison grounds and stab him. Defendant admitted these facts except he contends that he took the weapon away from the victim, stabbed him with it in self-defense, and then chased him in an unsuccessful attempt to stab him again.

On the morning of the trial the defendant first moved for production of all of the State’s evidence “to be used in the trial so defendant may have an expert inspect the evidence”. He later limited his request for an inspection to the knife without stating the nature of the inspection. The weapon was introduced at trial by the State and defendant was able to inspect and use it in presenting his case. Had defendant’s motion come earlier and specifically stated the necessity and purpose of a pre-trial inspection we might view his objection differently. Under the circumstances, however, it does not appear that the knife was evidence favorable to his case or that the delay of his inspection of it until later in the trial prejudiced his right to use it effectively in presenting his case.

The decision of the United States Fifth Circuit Court of Appeals in Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975) does not mandate a result different from the one we reach here. The holding of that case was that:

“[fjundamental fairness is violated when a criminal defendant on trial for his liberty is denied the opportunity to have an expert of his choosing, bound by appropriate safeguards imposed by the Court, examine a piece of critical evidence whose nature is subject to varying expert opinion.” 514 F.2d at 746.

In the instant case, the State did not introduce expert testimony regarding the knife. Furthermore, there was no showing that expert examination of the knife alleged to be the murder weapon conceivably could have supported the defendant’s theory of the case.

In Barnard, the evidence sought to be inspected by the defendant was the alleged murder weapon and bullet. As noted by the Court of Appeals, “this was not a frivolous request” since the bullet found in the body of the deceased was one of the most damaging pieces of evidence against the defendant. Seventy-five per cent of the bullet had been destroyed, and on the basis of the remaining twenty-five per cent the State’s expert testified that the slug had come from a gun in the possession of the defendant. The relevance of expert testimony that might have contradicted that conclusion is apparent. We see great dissimilarity between the facts of Barnard and those involved here.

For these reasons, we find no merit in this assignment.

ASSIGNMENTS OF ERROR NOS. 5 and 7

In these assignments defendant contends the trial court erred in refusing to grant first a directed verdict and then a new trial because the State failed to introduce any evidence to support a jury determination that the alleged killing was not committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Accordingly, defendant asserts that a verdict of manslaughter but not murder was justifiable under the evidence.

It is true that defendant and other inmates testified the victim had attacked defendant before the slaying and caused him to act in heat of blood at the time. However, the jury was entitled to reject their testimony as being untrue. Furthermore, the Code specifically provides that provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled at the time the offense was committed. La.R.S. 14:31(1). A trial judge’s denial of a motion for a directed verdict will not be overturned in the presence of any evidence of the elements of the crime charged. State v. Douglas, 278 So.2d 485 (La.1973). Similarly, for appellate purposes, a motion for a new trial based on the lack of evidence to support a conviction does not raise a reviewable question of law unless there is a total lack of evidence to prove the crime or an essential element of it. State v. Collins, 306 So.2d 662 (La.1975). Assuming the victim did provoke defendant’s attack, three correctional officers testified that the defendant, who was a larger man than the victim, pursued him across the prison ground a substantial distance before the victim fell and the defendant crouched over him to stab him several times. This constituted evidence from which it could have been inferred that defendant’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed. Therefore, we conclude the trial judge’s actions in denying the motions for directed verdict and a new trial were adequately supported by the evidence, and that these assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 6

The defendant assigns as error the trial court’s denial of a motion for a new trial on the ground that the verdict was contrary to the law and the evidence without a review of the sufficiency of the evidence. The trial judge’s per curiam states that:

“The court heard the evidence given in this case and did not need to review the evidence to deny the motion for a new trial on the ground that the verdict was contrary to the law and the evidence. The evidence amply supports the jury’s verdict.”

The transcript of the hearing on the motion for a new trial, which is some 23 pages long, reflects that the trial judge, in fact, did review thoroughly the evidence and the arguments of the defendant. The trial was held on January 16, 1975 and the hearing upon the motion for new trial occurred on January 30, 1975. In view of the short period of time between the trial and the hearing date, as well as the material found in the transcript of the hearing, we are convinced that the trial judge in his per curiam merely intended to indicate that he did not need a transcript of the trial testimony in order to rule upon the motion for a new trial because he had presided at the trial itself.

Accordingly, we conclude that the trial judge did weigh and re-assess the evidence properly before ruling on the motion for a new trial.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 8

Defendant assigns as error the failure of the trial court to grant a new trial on the ground that insufficient time was afforded defense counsel for an adequate preparation of his case. Defense counsel was initially appointed in 1971 and the trial was not held until January 16, 1975. Although defendant was absent on escape for approximately one year during this period, and was in the parish prison in New Orleans from November 13 or 14, 1974 until January 8 or 9, 1975, the trial judge determined that there had been ample time for the preparation of a defense.

When the trial court is of the opinion that the ends of justice would be better served by the granting of a new trial although the defendant may not be entitled to a new trial as a matter of strict legal right, it should grant the defendant a new trial. La.C.Cr.P. art. 851(5). Neither the appellate nor the supervisory jurisdiction of the Supreme Court may be invoked to review the granting of or the refusal to grant a new trial, except for error of law. C.Cr.P. art. 858. Although abuse of the trial court’s discretion in refusing to grant a new trial is a question of law, great weight must be attached to the exercise of the trial court’s discretion which will not be disturbed in the absence of manifest error. State v. Randolph, 275 So.2d 174 (La. 1973).

Under the circumstances presented here we find no error of law or abuse of discretion on the part of the trial judge in denying the motion for a new trial, especially in view of the defendant’s failure to move for a continuance or raise this objection before commencing trial.

This assignment of error is without merit.

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


source: Caselaw Access Project

author: DENNIS, J.,

license: Public Domain

text:
    Reverend Louis M. COPPAGE v. Dr. D. E. GAMBLE et al.
    No. 57435.
    Supreme Court of Louisiana.
    Feb. 11, 1976.
   In re: Rev. Louis M. Coppage applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo.

Writ denied. The result is correct.

DENNIS, J.,

recused because he per- . , . ’,... , formed a judicial act m the case m another court.


author: TATE, J., DIXON, J.,

text:
    Buford and Mateline DAUZAT v. KROGER COMPANY and Insurance Company of North America.
    No. 57413.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: Buford and Mateline Dauzat, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides, 323 So.2d 170.

Writ denied. The result is correct on the facts found by the Court of Appeal.

TATE, J.,

respectfully dissents. The ruling is contrary to Gonzales v. Winn-Dixie, 326 So.2d 486 (La.1976). The fall of a stack in a grocery store, in the absence of intervening superseding cause, is itself the result of store negligence, whether the hazard is visually apparent or not.

DIXON, J.,

dissents; when two cases of soft drinks fall on a customer’s head in a store, the store cannot escape liability merely by showing an inspection system.

CALOGERO, J., dissents.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Elbert STEWART.
    No. 56931.
    Supreme Court of Louisiana.
    Jan. 19, 1976.

      Quintín T. Hardtner, III, Shreveport, for defendant-appellant.
    William J. Guste, Jr., .Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., for plaintiff-appel-lee.
   CALOGERO, Justice.

Defendant Elbert Stewart was convicted of attempted second degree murder in violation of La.R.S. 14:27 and 14:30.1(1) and was sentenced to twenty years at hard labor. Approximately one month before his trial for attempted second degree murder, defendant was convicted of armed robbery arising out of the same incident. That earlier conviction is also before this Court and is the subject of our companion opinion, State v. Stewart, 325 So.2d 828 (La. 1976), No. 56,932 on docket of this Court, decided this date.

On the morning of January 17, 1974, a man exhibiting a loaded pistol robbed a branch of the Louisiana Bank and Trust Company in Shreveport, Louisiana. In the course of the armed robbery, five people, including Charles Schillinger, the victim in the present case, were shot and injured by the robber, and $822.00, including $100 in currency which contained a tracking device, was taken. After getting descriptions of the robber and of the blue Volkswagon in which he left the bank, a police officer, driving a car equipped with a receiver, picked up the signal of the tracking device. The officer drove in the direction of the signal, observed a blue Volkswagon with two occupants coming from the opposite direction down Jackson Street, and noticed a zero reading on the visiual equipment as the two cars passed each other. Looking in his rear view mirror, the officer saw the Volkswagon turn into the driveway of a house. The officer called for assistance, the house was surrounded, defendant and one Thomas Randolph were called out, arrested in front of the house and taken to the police station. About noon that same day a lineup was conducted during which the defendant was positively identified as the armed robber by two bank tellers and by a woman who was at her beauty parlor across the street from the bank and who saw the defendant leave the bank and proceed to his blue Volkswagon in the parking area. The tracking device, the bills assigned to the teller who had been robbed, and a pistol were found in a deep freezer underneath some groceries in the same house about 12:30 or 1:00 p. m. that same day. In the middle of the afternoon, the defendant signed a confession which was later introduced at the two trials, one on the attempted second degree murder charge which we review here and the other on the companion armed robbery charge.

Defendant appeals his conviction and sentence, relying on four assignments of error.

ASSIGNMENT OF ERROR NO. 1.

Defendant argues that the trial court erred in denying his motion to suppress all evidence seized during a purportedly illegal search of the defendant’s house and automobile. Q

When the police officers arrived at the home of the defendant shortly after the armed robbery, they called for thcfee inside to come out, after which the defendant and the companion Randolph came out of the house, were handcuffed and placed under arrest. The defendant’s wife and several children also vacated the house and police officers made a sweep of the inside to make sure it was empty. The house was then secured by placing guards at both the inside and outside of the front and back doors. At this point, approximately 9:30 a. m., the police officers and FBI agents involved had a discussion as to whether they should conduct a search incident to the arrest or obtain search warrants. It was decided that warrants should be sought from both state and federal authorities before the search was conducted. For the next three hours, from approximately 9:30 a. m. to 12:30 p. m., the guards remained at the doors and no one was allowed to enter except a few designated law enforcement officials. At approximately 12:30 p. m., the search warrants arrived, an official search was made, and a pistol, currency, and a money pouch containing the tracking device were found under some groceries in the deep freezer and were later used as evidence against the defendant at his trials.

During the three hours between the arrest and the arrival of the search warrants, several persons did enter the defendant’s house. Police officers, FBI agents and others testified for the state that the only persons who entered the house during that time were the guards and persons using the telephone to obtain and verify information relative to probable cause and to transmit that information to the district attorney’s office and the United States Attorney’s Office for use in the separate applications for search warrants. The state argued that the use of the phones in the defendant’s house was the most practical way to relay the information because the radios in the police cars were not equipped to contact either the state or federal prosecuting attorneys’ offices. The fact that no one was allowed to enter the house except the guards and those authorized persons who used the telephone, and that no search was made either inside the house or of the car parked in the driveway before the search warrants arrived, was borne out by the testimony of sixteen police officers, FBI agents and others. The only testimony to the contrary was that of the defendant’s brother who arrived at the house at about 10:15 a. m. Although he was not allowed to enter the house, he testified that he saw through windows and through the front door that drawers had been pulled out in the bedroom and that on at least one occasion the lid of the deep freezer was raised.

There are basically two issues before this Court. The first deals with the search itself, i. e., whether the search was conducted prior to the arrival of the search warrant and was thus a warrantless search, or whether the search took place only after the arrival and under the authority of the search warrants. The resolution of this issue involves the credibility of the witnesses. The second issue is, assuming the search took place after the warrants arrived, whether the fact that there were persons in the house before the warrants arrived tainted the search and seizure so as to require suppression of the evidence obtained.

The issue of credibility is easily resolved in favor of the state. A reading of the transcript of the hearing on the motion to suppress the physical evidence convinces us that the trial court was correct in disbelieving the testimony of the defendant’s brother and in believing the multiple officers who testified that there was no search prior to the arrival of the warrants. This was no ordinary case. A bank had been robbed, five people had been shot by the robber, the defendant was tracked from the scene, observed pulling into his driveway and arrested immediately thereafter. Police officers, FBI agents, the police commissioner, and the Chief of Police were on the scene at the defendant’s house and discussed whether or not a warrant should be obtained. Once these top level officials determined that a warrant should be secured, they took pains to see that the search was not conducted before its arrival by leaving guards on both the inside and outside of the front and rear doors and by restricting access to the house. The purpose of having guards on the inside was to prevent a premature search from taking place. To refute the statements of the defendant’s brother, there was testimony by an outside guard that a person could not see through the windows of the house, by the guard at the front door that from the front door there was no view into the bedrooms, and by the rear door guard who was standing near the deep freezer that no one raised the deep freezer lid until after the warrant arrived. The evidence adduced at the hearing on the motion to suppress the physical evidence more than amply supports the trial court’s finding that the search was not conducted until the warrants arrived.

The defendant here correctly states the rule that when a person is arrested outside his home, a warrantless search incident to an arrest is not justified by the belief that an article sought is concealed within the house. See Vale v. Louisiana, 399 U.S. 30, 33-34, 90 S.Ct. 1969, 1971-72, 26 L.Ed.2d 409 (1970). However, this rule is not relevant in the present case because the trial court correctly held that no warrantless search (incident to the arrest) took place. Rather the search was not conducted until the warrants were issued. It would be an unrealistic extension of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) to hold that in a case such as we have here, the placing of guards inside the doors of defendant’s house and the limited use of the telephone to transmit information concerning probable cause for the issuance of search warrants so tainted the subsequent warrant search and attendant seizure that the evidence obtained must be suppressed.

This case is clearly distinguishable from State v. DiBartolo, 276 So.2d 291 (La.1973), which involved an illegal entry into a locked apartment and a warrantless search. In that case, it was information obtained after the illegal entry which gave the officers probable cause to arrest and search the defendant. Thus the illegal entry tainted the subsequent arrest so as to render the arrest illegal and the evidence seized incident thereto inadmissible in the defendant’s prosecution. In the present case, the entry followed a lawful arrest and was merely to secure the house and to communicate information in order to obtain the search warrants. It was not alleged or shown that anything was found in the house which aided the police in establishing probable cause for the search warrant. Although in retrospect it might have been better to use a different telephone, perhaps that of a neighbor, we are not prepared to say that the limited occupation of the premises for the purposes stated here was unreasonable or has any legally damaging effect upon the subsequent search conducted pursuant to the warrant.

. ASSIGNMENT OF ERROR NO. 2.

The defendant assigns as error the trial court’s denial of his motion to suppress written confessions or inculpatory statements made on the day of his arrest. Defendant contends that the methods used in obtaining his signature were in violation of his privilege against self-incrimination as guaranteed by the Fifth Amendment to the United States Constitution and by Article I, Section 2, of the Louisiana Constitution of 1921 (which was in effect at the time the offense was committed).

It is undisputed that at the time of the defendant’s arrest he was advised of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant was then taken to the police station where he was given an advice of rights form which he read, but declined to sign. At this point, the defendant requested a lawyer who was immediately called by one of the police officers. That lawyer was not in his office but his law partner came to the station, talked with defendant for about ten minutes, then departed. The defendant testified at the hearing on the motion to suppress written confessions that the attorney said nothing to him about not representing him and, at the hearing on the motion to strike the lineup, that he thought the attorney was still at the police station representing him and that no one told him that the attorney had left. The police officer who called the attorney testified that the attorney had told him after the brief interview with defendant that he was not going to represent the defendant. At the hearing on the motion to suppress the physical evidence, this officer related that he told defendant what he had learned from the lawyer, but on cross examination he said that it was either defendant or the companion arrestee, Randolph, to whom he related the attorney’s stated decision not to represent them. However, at the hearing on the motion to strike the lineup, the same officer testified that it was the defendant to whom he gave the information.

Later in the afternoon, after defendant took part in a lineup procedure, an FBI agent and another police officer spoke to defendant and again notified him of his Miranda rights. This time the defendant signed a waiver of his rights. The agent and officer then interviewed the defendant for approximately two and one-half hours and put together a statement in which defendant admitted his part in the robbery. About an hour of this time was taken up by the defendant attempting to write out his own statement. After the statement was written by the agent, the defendant began his signature but did not complete it, asking to speak to his wife. After speaking to her in private, the defendant added a sentence in his own writing exonerating his companion, and affixed his signature in full.

At the hearing on the motion to suppress the written confession defendant testified that on the way to the police station the officer driving the car said he would shoot the defendant if he tried to escape and that when they arrived at the station he pushed the defendant up against the wall. Furthermore, the defendant testified that, after the lineup he said that he did not want to make a statement but that the officers repeatedly pressured him to make a statement; that the FBI agent promised to have the case tried in federal court and to get the defendant a doctor; and that the police officer pulled on his arm and shirt and made vague references to his family. The various officers and agents allegedly involved in these incidents affirmatively denied that these things took place.

In a motion to suppress a written confession or inculpatory statement, the state has the burden of proving that the confession was freely and voluntarily made and was not given under the influence of intimidation, threats or promises. La. Code of Criminal Procedure, Article 703. See State v. Bray, 292 So.2d 697 (La.1974); State v. Wood, 262 La. 259, 263 So.2d 28 (1972). The state has met this burden in the present case.

Despite the defendant’s testimony that he was subjected to physical abuse and was promised federal in lieu of state prosecution, and the assistance of a doctor the record abounds with testimony by police officers and FBI agents denying any such abuse or promises. Furthermore, the defendant was not injured during the commission of the robbery or subsequently. And, even assuming as true that he was offered a doctor, such could hardly be considered coercion in light of defendant’s testimony that he did not know why such offer was made. It is undisputed that prior to the interview which culminated in the signing of a statement, defendant was given his Miranda rights and signed a waiver of rights form. Both the police officer and the FBI agent who were present during the interview deny that defendant told them he did not want to make a statement.

It should be observed that when, shortly after his arrest, defendant requested an attorney, the officers involved ceased all questioning and called the attorney for defendant. It was several hours later that another officer and an FBI agent interviewed defendant and then only after he had been advised of his rights and signed a waiver form. The decision by the defendant to talk to the officer and agent came after he had spoken with an attorney and had taken part in a lineup. The actual signing of the statement followed a private conversation with his wife and the addition in his own handwriting, of a sentence exonerating his companion.

All of these facts indicate that there were no threats, promises or physical abuse and that the defendant voluntarily gave the statement. A factual determination by the trial court that the written confession was not the product of threats or promises and that it was freely and voluntarily made is given great weight and will not be disturbed upon appeal unless clearly erroneous. State v. Sims, 310 So.2d 587 (La.1975); State v. Cosey, 261 La. 550, 260 So.2d 620 (1972); State v. Lacoste, 256 La. 697, 237 So.2d 871 (1970).

There remains, however, the issue of what effect the defendant’s earlier request (that he talk with an attorney), and his asserted belief (that the attorney was representing him), have on the admissibility of the written confession. The guidelines for custodial interrogation established in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) state:

“If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.” 384 U.S. at 474, 86 S.Ct. at 1628.

Under the facts of this case, we conclude that defendant’s Miranda rights were not violated. Defendant was twenty-six years of age at the time the offense was committed and had at least one year of college. The police did not desist from honoring defendant’s decision to consult with an attorney. Instead, the police here respected that decision and immediately called the attorney. Although we do not know exactly what the attorney and defendant concluded with respect to legal representation, in light of the attorney’s statement to a police officer immediately after their conversation that he would not be representing defendant and in view of defendant’s later giving a statement without counsel present and on the heels of advice that he was entitled to have his lawyer present, we conclude that at the time of the interview which produced defendant’s confession, defendant was not represented by an attorney and that defendant was aware of this fact.

Nor are we impressed with defendant’s contention that after the interview in which he asked for a lawyer he should not thereafter have been questioned again. The two interrogation attempts were separated by the summoning of a requested attorney and the conducting of a lineup. Furthermore, we do not construe defendant’s request for a lawyer followed by the lawyer’s advising the police (as well as defendant, we have concluded) that he was not going to represent defendant, to be an expression that defendant did not choose to make a statement. Of course, any such expression that defendant did not choose to make a statement would have to be respected under Miranda.

There is nothing in this case to indicate that fully effective means to notify the defendant of his right to counsel or his right to remain silent were not followed by the police officers and FBI agents, or that these rights were not carefully honored.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3.

Defendant argues that the trial court erred in denying his motion to strike the lineup, and to suppress the testimony of any witness who viewed the lineup, on the grounds that the defendant was not advised of his rights to counsel prior to the lineup and was not advised by the investigating officers that the lawyer with whom he had talked prior to the lineup had declined to represent him. There is no allegation of any irregularity or unfairness in the formation or carrying out of the lineup procedure itself.

The lineup was conducted on January 17, 1974, several hours after the occurrence of the crime and the arrest of defendant. The bill of information charging defendant with attempted second degree murder was filed four days later. Although the defendant was read a lineup rights form and advised of his right to have an attorney present, such is not required by either federal or state jurisprudence. In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the United States Supreme Court held that the Sixth Amendment did not apply to prein-dictment lineups. Applying the Kirby decision, this Court has consistently held that the presence of an attorney is not required at lineups held prior to indictments or the filing of bills of information. State v. Nero, 319 So.2d 303, 308 (La.1975); State v. Bland, 310 So.2d 622, 626 (La.1975); State v. Lawrence, 294 So.2d 476, 478 (La.1974); State v. Edgecombe, 275 So.2d 740 (La.1973). Furthermore, as indicated in the discussion of the second assignment, defendant was not at the time represented by a lawyer and was aware of that fact.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 4.

The defendant assigned as error the trial court’s denial of his motion for change of venue or, in the alternative, for a continuance of not less than six months. Because the alternative argument for a continuance was not argued on appeal, it will not be considered by this Court. State v. Coleman, 322 So.2d 195 (La. decided Nov. 4, 1975); State v. Richmond, 284 So.2d 317 (La.1973).

The trial on the attempted murder charge began on March 31, 1975. Slightly more than one month earlier, on February 21, 1975, the defendant had been convicted of armed robbery arising out of the same incident. Defendant attached to his motion for change of venue copies of six newspaper articles reporting the trial on the armed robbery charge in the Shreveport Journal and the Shreveport Times. At the hearing on the motion, the defense did not attempt to introduce any other evidence, but chose to rest its case on the attached newspaper reports.

The grounds for change of venue are set forth in Article 622 of the Code of Criminal Procedure:

“Art. 622. Grounds for change of venue
A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.”

In a motion for change of venue, the defendant has the burden of showing that he cannot obtain a fair trial in the parish where the prosecution is pending. State v. Dillard, 320 So.2d 116 (La. decided October 1, 1975); State v. Bell, 315 So.2d 307 (La.1975); State v. Richmond, 284 So.2d 317 (La.1973). Article 622 of the Code of Criminal Procedure requires more than mere knowledge by the public of the facts surrounding the offense. It requires, in addition, proof of such prejudice in the public mind that a fair and impartial trial cannot be obtained in the parish. State v. Dillard, supra; State v. Flood, 301 So.2d 637 (La.1974); State v. Leichman, 286 So.2d 649 (La.1973). In the present case, the defendant failed to meet his burden of proof. An examination of the newspaper articles published at the time of the armed robbery trial shows that none were inflammatory. They were merely objective coverage of the trial reflecting the testimony of the witnesses and the ultimate guilty verdict.

The present case is distinguishable from State v. Bell, 315 So.2d 307 (La.1975) where the conviction was reversed because the trial judge refused to issue subpoenas to news media representatives as requested by .the defendant or to allow the introduction of evidence of the extensive publicity, thus precluding a fair determination of the community’s attitude toward the defendant. Here both sides submitted the question on the newspaper articles which were attached to their motions as exhibits. The defense was not precluded from introducing other evidence.

The granting or denial of change of venue rests within the sound discretion of the trial judge and his ruling denying the- motion will not be disturbed unless the evidence affirmatively shows that the ruling was erroneous and an abuse of judicial discretion. State v. Dillard, 320 So.2d 116 (decided October 1, 1975); State v. Richmond, supra. Under the evidence presented to support the defendant’s motion for change of venue, we do not conclude that the trial judge abused his discretion.

This assignment of error lacks merit.

For the reasons assigned the conviction and sentence are affirmed.

      . On the morning of the bank robbery, Thomas Randolph left his pre-school child at the defendant’s house and, because his car was broken down, was offered a ride to work by defendant. The two men left in the defendant’s blue Volks wagon, but defendant said he needed to run an errand first. Defendant parked the car in the parking area of a grocery, crossed the street and entered the bank. Randolph remained in the ear. After the robbery, Randolph returned to the defendant’s house with him, was arrested and placed in a lineup with the defendant. Later that day defendant added a sentence to his statement indicating that Randolph was not involved, but was simply a victim of circumstances. The charges against Randolph were dropped.

      . “INTERROGATION: ADVICE OF RIGHTS.
      Your rights. Place: Shreveport, Louisiana, dated January 17, 1974. Time: 12: 48 P.M. Before we ask you any questions you must understand your rights. You have the right to remain silent. Anything you say can be used against you in Court. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. If you cannot afford a lawyer one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present you will still have the right to stop answering at any time until you talk to a lawyer. Paragraph. Waiver of Rights: I have read this statement of my rights and I understood what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me, Signed Elbert Stuart. Witness: Itonald W. Bienner, Special Agent, FBI, Shreveport, Louisiana, January 17, 1974. Time: 12:50 P.M.” (Emphasis provided)

      . But see the recent United States Supreme Court case, Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313, where it was found that Miranda is not violated by an interrogation following an earlier refusal to give a statement where the interrogations related to separate and distinct crimes.

      . This bill was originally for attempted first degree murder, but was amended to read attempted second degree murder. There was a separate bill of information charging the defendant with the armed robbery.


text:
    STATE of Louisiana v. Elbert STEWART.
    No. 56932.
    Supreme Court of Louisiana.
    Jan. 19, 1976.
    Quintín T. Hardtner, III, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., for plaintiff-appel-lee.
   CALOGERO, Justice.

Defendant Elbert Stewart was convicted of armed robbery in violation of La.R.S. 14:64 and was sentenced to seventy-five years at hard labor without benefit of parole, probation or suspension of sentence. He appealed his conviction and sentence, relying on four assignments of error. This case arose from the same incident as State v. Stewart, 325 So.2d 819 (La.1976), decided this date, and the cases were consolidated for the purpose of the hearings on the motion to suppress physical evidence, the motion to suppress written confession or inculpatory statement and the motion to strike the lineup. The first three assignments of error relate to adverse rulings on these three motions. The assignments have been discussed in State v. Stewart, supra, and for the reasons therein stated found to be without merit.

For Assignment of Error No. 4, the defendant argues that La.R.S. 14:64, the Armed Robbery Statute, is unconstitutional in that the sentence provided therein constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article I, Section 20 of the Louisiana Constitution of 1974. The armed robbery statute provides for a penalty of imprisonment at hard labor for not less than five years and not more than 99 years, without benefit of parole, probation or suspension of sentence.

Defendant did not object to the sentence at the time it was imposed. Indeed, objection was not made until after the return date had been set for appeal, and then only by designation as a supplemental assignment of error. Article 841 of the Code of Criminal Procedure states that an error or irregularity in the proceeding cannot be availed of after verdict unless it was objected to at the .time of occurrence, and Article 844 of the Code of Criminal Procedure provides that assignments of error shall be filed within the time specified by the trial judge. However, the unconstitutionality of a statute on which a conviction is based is an error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence, which this Court is entitled to review, even though the defendant has not complied with the assignment of error procedure including the need to lodge timely objection. La.Code of Criminal Procedure art. 920, Official Revision Comment (d) (1966), as amended La.Acts 1974, No. 207, § 1. See State v. Dillard, 320 So.2d 116, fn. 4 (La.1975) (decided October 1, 1975); State v. Williams, 322 So.2d 177 fn. 2 (La.1975) (decided October 1, 1975). We therefore review the alleged error.

Louisiana jurisprudence interpreting the 1921 Constitution1 has consistently held that the armed robbery statute is not violative of the constitutional prohibition against cruel and unusual punishment. State v. Pierce, 321 So.2d 523 (La.1975) (decided November 4, 1975); State v. Bradford, 298 So.2d 781 (La.1974); State v. Howard, 262 La. 270, 263 So.2d 32 (1972).

This assignment of error lacks merit.

For the reasons assigned, defendant’s conviction and sentence are affirmed.

      . Actually the applicable provision is Article I, Section 12 of the Louisiana Constitution (1921), which was in effect at the time this offense was committed.


author: DIXON, J.,

text:
    STATE of Louisiana v. Robert A. BOND.
    No. 57403.
    Supreme Court of Louisiana.
    Feb. 13, 1976.
   In re: Robert A. Bond applying for Remedial or Supervisory Writs of Certiorari, Prohibition and Mandamus.

Writ denied. There is no showing of abuse of discretion in denying a continuance in this uncounseled conviction for driving while intoxicated.

DIXON, J.,

dissents from denial — continuance should have been granted.

CALOGERO, J., dissents.


author: BLANCHE, Judge.

text:
    Jeanise Collins BROWN v. Mack B. JOHNSON and Herman H. Stewart, Jr.
    No. 10528.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.

      Judith Atkinson Chevalier, Baton Rouge, for Jeanise Collins Brown.
    Charles Z. Ranel, Baton Rouge, for Herman Stewart.
    Fred H. Belcher, Jr., Baton Rouge, for Mack Johnson.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

This suit arises out of the sale of an automobile by the plaintiff, Jeanise Collins Brown, to defendant, Mack B. Johnson. The Nineteenth Judicial District Court granted judgment in favor of plaintiff and against defendant Johnson for the sum of $3,155.83, together with interest from date of judicial demand until paid. Plaintiff’s suit against defendant, Herman H. Stewart, Jr., was dismissed.

Johnson was granted judgment on his third party demand against third party defendant, Herman H. Stewart, Jr., in the amount of $3,155.83, together with interest from date of judicial demand until paid. All costs of the proceedings and an expert witness fee of $35 were to be paid by defendant Johnson and third party defendant Stewart.

All parties have appealed. We affirm.

The facts surrounding the aforesaid sale are as follows: Early in 1973, plaintiff and her father, John Collins, received title to a 1972 Delta 88 Oldsmobile sedan, bearing Serial No. 3L69 H2M574317, through the succession of plaintiff’s mother, Mrs. Olivia Brazier Collins. John Collins donated his interest in the car to the plaintiff, thereby giving her the complete ownership thereof.

The automobile was mortgaged to General Motors Acceptance Corporation (GMAC) and at Mrs. Collins’ death had an outstanding balance of $4,647.82. There was a credit life insurance policy issued by Standard Life Insurance Company covering said balance. On January 30, 1973, Standard acknowledged its obligation under the insurance policy but due to a discrepancy concerning the age of Mrs. Collins they paid only $500 thereon, leaving a balance of $4,147.82. The discrepancy was subsequently corrected and the entire balance was paid. Meanwhile, the plaintiff continued the monthly payments to GMAC.

On June 24, 1973, plaintiff’s husband, Louis Brown, Jr., traveled from their home in Colorado to Baton Rouge in order to settle some affairs pertaining to the estate of Mrs. Collins and to take possession of the Oldsmobile. At that time Brown paid $354.04 to GMAC to bring the account up to current status. Prior to that payment, the loan had a balance of $3,773. Brown also contacted realtor Mack B. Johnson, one of the defendants herein, with regard to selling a house which was included in the estate. During their conversation, Johnson expressed an interest in purchasing the Oldsmobile. The conversation culminated in the signing of an agreement to purchase on June 26, 1973, by Johnson, Collins and by Brown on behalf of his plaintiff wife.

The agreement drawn up by Brown and Johnson’s secretary stated that the automobile would be transferred for the following consideration:

“Assumption
“Assumption price of $3,773.00
“In Consideration
“(1) Upon execution of Not[a]rized Bill of sale by Mr. Collins & Mrs.
Brown, Mr. Mack B. Johnson will remit the sum of $345.04 to Mr. Brown. $345.04 is the amount previously paid to GMAC to bring account up to current status in order that an assumption could be made.
“(2) The amount of the G[MAC] Note to be assumed by Mr. Johnson in-eluding the $345.04 to be returned to the Brown[s] is not to exceed [$]3,773.38, with the exception of the amount of the taxes that Mr. Johnson must pay as a buyer.
“(3) Mr. Johnson further agrees to pay Mr. Brown’s Air Fare from Baton Rouge, La., to Denver, Colorado, the nearest airport to his home in Fort Collins, Colorado.” (Exhibit P-8)

After the confection of the agreement, Johnson’s attorney, Samuel Dickens, prepared bills of sale for the parties. Collins signed one form in blank and Brown was given a blank form for the plaintiff to sign and return to Dickens in Baton Rouge. Brown also received $85 for airplane fare back to Colorado as per the agreement. Johnson’s employee, Herman H. Stewart, Jr., drove Brown to the airport, and at that point Brown gave physical possession of the automobile in question and its keys to Stewart. Brown explained that he was under the impression that the car would be returned to Johnson, who had just signed the purchase agreement.

On Brown’s return to Colorado, the plaintiff signed the blank form and mailed it to Dickens. In compliance with their agreement, on August 4, 1973, Johnson sent plaintiff a check for $345.04.

On August 22, 1973, when Brown was again in Baton Rouge, he discovered that in spite of the agreement there had been no assumption and the loan was $291.68 in arrears. Brown contacted Johnson concerning the arrearage and Johnson gave him a check for $291.68, assuring Brown that the third stipulation of the agreement, the assumption, would, in fact, take place. Brown applied the check to the loan balance.

Thereafter, Standard’s credit life insurance policy paid the balance on the loan, which at the time of payment amounted to $3,155.83. Additionally, they remitted $617.17 to the plaintiff, representing payments that had been made on the note since the death of Mrs. Collins. Plaintiff also received the title marked “Paid in Full.”

Upon receipt of the title and $617.17, the plaintiff realized that no assumption had taken place since the policy proceeds were paid to GMAC rather than to her. Plaintiff’s husband then called Johnson long distance to inquire about the assumption. Johnson contended that since the mortgage had been paid off he should not have to pay the full price which they had agreed upon. As of this date, it is clear that Johnson was considering himself as the purchaser.

Thereafter, on November 21, 1973 (and unknown to the plaintiff), the blank sale form the plaintiff had signed in June was completed, transferring the ownership of the automobile to defendant Stewart rather than to Johnson. Also, the stated consideration on the form was $800 rather than the assumption balance and plane fare that was specified in the June agreement. On that same date Stewart signed a promissory note in favor of Johnson for $800.

Subsequently, the plaintiff realized that even though she had the title to the automobile she did not possess same and, furthermore, had never received the purchase price. She then sued both Johnson and Stewart for the $3,155.83 paid to GMAC by the credit life insurance policy. Alternatively, she sought rescission of the sale for nonpayment of the purchase price.

Stewart reconvened against her, seeking the $617.17 that was paid on the note subsequent to the death of Mrs. Collins.

Johnson filed a third party demand against Stewart, seeking indemnification for any loss he might suffer. However, Stewart was never served with that demand.

At the trial Mack Johnson contended that he originally intended to buy the automobile and resell it to one of his employees, Murphy Johnson, or alternatively to let Murphy Johnson buy it himself. However, Mack Johnson changed his mind, deciding that another employee, defendant Stewart, was more in need of an automobile than Murphy Johnson. Therefore, Mack Johnson finally negotiated the deal in favor of Stewart.

In spite of the clear wording of the agreement quoted above, Mack Johnson contended that he was not the real purchaser but was merely standing good for the debt since Stewart could not assume the GMAC loan due to his poor credit rating and financial condition. Johnson contended that he was merely advancing realtor’s commissions to Stewart when he made the aforementioned payments to plaintiff. Additionally, he pointed out that Stewart always had possession of the automobile and that plaintiff’s husband was present when Stewart executed the note to him to repay him for the advances he had made and, therefore, was aware that Stewart was the true purchaser.

After rejecting these arguments, the trial judge made the following finding:

“The Court is of the opinion, based on the testimony adduced at trial, that what actually took place was two sales. The first sale was from plaintiff to Mack Johnson. This sale was under the terms of the purchase agreement (P-8). There was an agreement between Mack Johnson and plaintiff, acting through her husband, in which plaintiff agreed to give a thing (the car) to Mack Johnson in return for Mack Johnson giving a price. The price to be • paid by Mr. Johnson was a cash payment in the sum of $345.04, payment of Mr. Brown’s airfare to Colorado, and assumption of the balance due GMAC, in the amount of $3,773.38. The sale was to take effect upon plaintiff furnishing a notarized bill of sale. The purchase agreement did not require that the bill of sale be to Mack Johnson. Plaintiff was furnished with a blank bill of sale which she signed and returned. Mack Johnson made the payment of $345.04, paid Mr. Brown’s airfare to Colorado, and made the next payment on the note to GMAC. Mack Johnson did not formally assume the note with GMAC and secure the release of plaintiff as was intended by the parties.
“The second sale was .from Mack Johnson to Herman Stewart. The price to be paid by Mr. Stewart was $800.00 and assumption of the note held by GMAC. Mr. Stewart signed a note payable to Mack Johnson for $800.00 but he never assumed the obligation on the note held by GMAC.”
“ * * * [l']t is evident that both Mr. Stewart and Mr. Johnson agreed to assume the note held by GMAC and that neither took any formal steps to bind themselves to GMAC or to secure plaintiff’s release from the obligation, as was contemplated in the agreement between plaintiff and Mack Johnson.” (Written Reasons for Judgment, Record, pp. 57, 58)

In view of the foregoing, judgment was rendered in favor of plaintiff and against defendant Johnson and further in favor of third party plaintiff Johnson and against third party defendant Stewart.

Plaintiff has appealed, contending that judgment should be rendered in her favor and against both defendants Johnson and Stewart, in solido. Defendant Johnson has appealed, alleging that the trial court erred in finding that he and Mrs. Brown entered into a valid sales agreement. Third party defendant Stewart has appealed the judgment against him and in favor of third party plaintiff Johnson, contending that the judgment is a nullity for lack of service.

The trial judge’s finding that two sales occurred is fully supported by the law and the evidence and will not be disturbed on appeal.

Johnson contends the trial judge’s holding that he was the real purchaser is clearly refuted by the bill of sale as it lists Stewart as the purchaser. While we acknowledge that Stewart’s name does appear as the purchaser therein, the evidence establishes that the bill of sale was not completed until November 21, 1973, when the sale from Johnson to Stewart took place. We surmise that Johnson, not yet having completed the form by inserting his own name as purchaser, simply entered Stewart’s name therein for his own purpose when he made the sale to Stewart.

Johnson also contends that the agreement between him and the plaintiff was an aleatory contract, citing LSA-C.C. Art. 2982 in support thereof. As such, he argues that the payment of the total indebtedness by the credit life insurance policy constituted the fulfillment of an uncertain event, the occurrence of which relieved him of any further indebtedness to the plaintiff. However, there is absolutely nothing in the record to indicate that this was the intention of the parties when they entered into the agreement, and this contention is without merit.

Stewart was not a joint purchaser .with Johnson in this first sale and, therefore, plaintiff’s contention that she is enti-tied to a judgment against both defendants, in solido, is without merit.

In view of the foregoing, we affirm the judgment of the trial court in favor of plaintiff, Jeanise Collins Brown, and against the defendant, Mack B. Johnson. We also affirm the judgment in favor of Herman H. Stewart, Jr., dismissing the principal demand of plaintiff, Jeanise Collins Brown.

Having affirmed the trial judge’s finding that there was a sale from third party plaintiff Johnson to Stewart, we now consider Stewart’s contention that the judgment is a nullity since he was never served with the third party petition and never waived service.

LSA-C.C.P. Art. 1201 provides that without citation and service all proceedings are absolutely null (except for summary and executory proceedings), and we find here that Stewart was never served and did not waive service. However, a litigant may subject himself to the jurisdiction of the court and waive all objections thereto by making a general appearance. LSA-C. C.P. Art. 7.

Notwithstanding the fact that Stewart never answered Johnson’s third party demand against him and appeared at the trial only to defend against the original plaintiff in this suit, we are of the opinion that he did make a general appearance in the third party demand by timely filing a motion for new trial.

Said motion alleged that (1) the judgment rendered in fhvor of third party plaintiff Johnson was contrary to the law and evidence, and (2) the judgment was erroneous in that parol evidence was permitted to alter the terms of the bills of sale between the parties to the prejudice of Stewart. The motion called for plaintiff Brown and third party plaintiff Johnson to be duly served with a copy thereof and to be commanded to show cause why the judgment should not be set aside and annulled and a new trial granted for the purpose of reargument only. It contained no mention of lack of jurisdiction or an absence of citation and service.

Under the above-quoted provisions of LSA-C.C.P. Art. 7, a defendant making a general appearance waives the right to object to the insufficiency or lack of citation and service when he affirmatively invokes the jurisdiction of the court for the purpose of seeking any relief other than that enumerated in the article.

Here the defendant sought a new trial solely on the grounds that the judgment was contrary to the law and evidence and that the defendant was prejudiced by the introduction of parol evidence concerning the subject sales. In so doing he affirmatively invoked the jurisdiction of the court and thereby waived all objections thereto. Cook v. Deshautreaux & Klein Pediatric Clinic, 294 So.2d 591 (La.App. 4th Cir. 1974), writ refused, La., 296 So.2d 834 (1974).

Accordingly, the judgment of the trial court in favor of third party plaintiff, Mack B. Johnson, and against the third party defendant, Herman H. Stewart, Jr., is also affirmed.

All costs of this appeal are to be paid by defendant, Mack B. Johnson, and by third party defendant, Herman H. Stewart, Jr.

Affirmed.

      . It appears from the record that it was unnecessary for Collins to execute the sale since he had previously donated his interest in the automobile to plaintiff.

      . LSA-C.C. Art. 2982 provides:
      “The aleatory contract is a mutual agreement, of which the effects, with respect both to the advantages and losses, whether to all the parties or to one or more of them, depend on an uncertain event.”

      . In pertinent part, LSA-C.C.P. Art. 7 provides :
      “Except as otherwise provided in this article, a party makes a general appearance which subjects him to the jurisdiction of the court and impliedly waives all objections thereto when, either personally or through counsel, he seeks therein any relief other than:
      “(1) Entry or removal of the name of an attorney as counsel of record;
      “(2) Extension of time within which to plead;
      “(3) Security for costs;
      “(4) Dissolution of an attachment issued on the ground of the non-residence of the defendant; or
      “ (5) Dismissal • of the action on the ground that the court has no jurisdiction over the defendant. * * * ”


author: ' BLANCHE, Judge.

text:
    Wilburn L. LUNA v. ATCHAFALAYA REALTY, INC. and Herbert H. Estave.
    No. 10581.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Dale Martin, Morgan City, for appellant.
    Peter P. Guarisco, Morgan City, for At-chafalaya Realty, Inc.
    C. E. Bourg, II, Morgan City, for Herbert H. Estave.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ' BLANCHE, Judge.

Plaintiff-appellant, Wilburn L. Luna, appeals a judgment of the Sixteenth Judicial District Court, which dismissed his suit for the return of a real estate sale deposit and for damages. He further appeals the granting of the defendants’ reconventional demands which ordered the forfeiture of said deposit to defendant-appellee, Herbert H. Estave, and granted judgment in favor of defendant-appellee, Atchafalaya Realty, Inc., against plaintiff for a real estate commission and attorney’s fees, with legal interest on both sums from the date of judicial demand. We affirm.

On March 20, 1973, Luna submitted a written offer to purchase real estate located at 1800 Filmore Street, Morgan City, Louisiana, from Estave for the sum of $27,-300. The offer was on a form furnished by Atchafalaya Realty and was accepted on March 20 by its President, H. W. Bergeron, Jr., as listing agent on behalf of the owner. Additionally, Luna gave a $500 deposit by check payable to the order of At-chafalaya Realty.

With regard to said deposit, the agreement contained the following provisions:

“In the event the purchaser fails to comply with this agreement within the time specified, the seller shall have the right to declare- the deposit, ipso facto, forfeited, without formality beyond tender of title to purchaser; or the seller may demand specific performance.
“In the event the seller does not comply with this agreement within the time specified, the purchaser shall have the right either to demand the return of his deposit in full plus an equal amount to be paid as penalty by the seller; or the purchaser may demand specific performance, at his option.” (Exhibit Luna No. 1)

The agreement' provided that the act of sale was to be passed “on or prior to April 7, 1973,” and that occupancy of the premises would also be delivered no later than April 7.

The sale was conditioned upon the ability of the plaintiff-purchaser to obtain a $21,800 mortgage loan at a rate of interest not to exceed 7 and percent per an-num, payable in monthly installments over a period of twenty-five years. Said loan was to be obtained within twenty-one days of acceptance of the offer.

The same day on which the agreement to purchase was signed, Bergeron introduced Luna to officials at Atchafalaya Savings and Loan Association for the purpose of obtaining the desired loan on the property. The loan was approved on March 30, and Luna signed the truth-in-lending disclosure statement on that same day. However, due to the requirement of a title examination and preparation of the closing documents, no commitment was made to advance the required money to the plaintiff until April 13. Thereafter, the closing and sale were set for April 16 at the office of Atchafa-laya Savings and Loan.

Present at the closing meeting of April 16 were the closing attorney, Herbert H. Duncan; the vendors, Herbert Estave and his wife; the realtor, Howard Bergeron; Lee J. Guarisco and his staff on behalf of the savings and loan; and the vendee, Luna. Prior to closing the sale, Luna was requested by the officer of the savings and loan to obtain the presence of his wife so that her signature, too, could be obtained. He then left to search for her but could not find her and thereafter did not return.

At that point, because of other business commitments, Estave and his wife signed the blank sale form and departed.

Bergeron requested Luna to return to Atchafalaya Savings and Loan on the next day, April 17, to close the loan, but Mrs. Luna was ill and the appointment was can-celled. Another appointment for Luna to sign the sale also resulted in his failure to attend.

After the failure of this last attempt to close the sale, Bergeron notified Luna by letter that he should either take title to the property or forfeit his $500 deposit. At that point Luna decided he would not purchase the property. Subsequently, he brought suit against Atchafalaya Realty for return of the $500 deposit, for $500 stipulated as a penalty in accordance with the terms of the contract, and for legal expenses of $139.20 incurred by Luna for preparing the proposed act of sale, or a total of $1,139.20.

The main thrust of plaintiff’s suit is that Estave failed to pass title to the subject property on or before April 7, 1973, therefore entitling plaintiff to a return of his deposit plus additional damages.

Pursuant to an exception of nonjoinder of necessary and/or indispensable party filed by Atchafalaya Realty, the court ordered that defendant Estave be joined as a co-defendant.

Atchafalaya Realty reconvened against Luna for a realtor’s commission of $1,638, plus all fees and costs incurred in enforcing collection of the commission, including reasonable attorney’s fees, and general damages in the sum of $3,000.

Estave reconvened for the $500 deposit as per the agreement; for $1,676 representing money allegedly lost when he was subsequently forced to sell the property for less money to another purchaser; for $26 representing the premium for insurance coverage upon the property which he was forced to continue due to failure to pass the sale; for $750 rental expenses which he incurred incidental to vacating the property in preparation for the sale to plaintiff, and for $150 as moving expenses in connection with the move to the rented quarters.

The trial judge held that since neither party put the other in default as of April 7 the contract was still viable until such time as either of the parties demanded performance and that performance was rejected.

He found that under Section 2 of Civil Code Article 1911 the person demanding performance can do so even though it is beyond the date specified for performance in the contract, as long as he is not himself in default. He then found that Estave’s execution of the blank sale form on April 16 amounted to a tender of title to plaintiff and that plaintiff’s failure to take title put him in violation of the agreement.

After finding that the plaintiff was already in default prior to bringing the instant suit, the Court held that the terms of the contract required forfeiture of the deposit to defendant Estave but rejected Es-tave’s other reconventional demand, being of the opinion that the agreement controlled the measure of damages between the parties.

Although no reasons were given therefor, the trial court obviously allowed At-chafalaya Realty to recover its fees and expenses from plaintiff based upon the following language in the agreement to purchase :

“If this offer is accepted, seller agrees to pay the agent’s commission of 3% which commission is earned by agent when this agreement is signed by both parties and when the mortgage loan, if any, has been secured.
“Either party hereto who fails to comply with the terms of this offer, if accepted, is obligated and agrees to pay the agent’s commission and all fees and costs incurred in enforcing collection and damages.” (Exhibit Luna No. 1)

Based upon the foregoing, the trial judge dismissed plaintiff’s suit, granted Es-tave’s reconventional demand for the $500 deposit held by Atchafalaya Realty, and granted judgment against the plaintiff and in favor of Atchafalaya Realty for the commission of $819, plus $300 attorney’s fees, with legal interest on both sums from the date of judicial demand until paid.

The sole question for determination is whether the contract expired in accordance with its terms when title was not passed on April 7, 1973, so as to relieve all parties of any further obligation thereunder. If it did, then the parties should have been restored to the status quo and plaintiff’s deposit should have been returned. If not, then the defendants would have been entitled to enforce the penalty provisions of the contract provided they placed the plaintiff in default. In this connection plaintiff counters that the date upon which title was to pass was of the essence of the contract and could not be extended beyond that time except in writing. He further contends that the contract’s having expired by its own terms, plaintiff could not legally place him in default thereafter because there was no contract to enforce.

Time could be of the essence in a contract to buy and sell real estate if the contract so provided, LSA-C.C. Art. 1911(1), but we have found no such provision in the contract before us. In fact, to the contrary, we find that as to the seller, before he can declare the deposit forfeited, he must comply with the formality of tendering title to the purchaser.

Neither do we find that the contract was of such a nature that it could only be given or done within a certain time, thus relieving the creditor of the necessity of placing the debtor in default, LSA-C.C. Art. 1933(1).

We are inclined to agree with the remarks of Litvinoff in his Treatise on Obligations wherein he states:

“ * * * There is no reason to assert that a transaction falls within article 1933(1) for the mere reason that the contractual object is immovable property. There is no reason, thus, to assert that ‘time is of the essence’ in transactions of that sort. * * * Therefore, if the parties are intent on default taking place by the mere arrival of the time, they have to stipulate to that effect, according to article 1911(1) of the Louisiana Civil Code. * * * In the absence of such a stipulation, when the time for execution of the act of sale has passed without the parties having appeared for that purpose, they are not yet in default unless they are placed in default according to articles 1911 and 1933. In such a situation, either party may put the other in default and then sue. * * * ”
(Litvinoff’s Treatise; Obligations, Book 2, Section 250)

Neither is there a showing outside of the four corners of the instrument that time was of the essence. Lamar v. Young, 211 La. 837, 30 So.2d 853 (1947).

When plaintiff continued to display his consent to the passage of the act of sale by presenting himself at the appointed place on April 16, he conclusively proved by his own actions that time was really not of the essence in this contract. There was also no showing that time was of such significance that the parties would not have contracted had they known the sale would not be passed by April 7. Additionally, we note that although title was to be transferred on April 7, the plaintiff was allowed twenty-one days, or until April 10, to secure a mortgage loan on the property. In view of the foregoing, there is no evidence outside of the contract from which we could conclude that the parties considered time to be of the essence.

The result here is in harmony with Everhardt v. Sighinolfi, 232 La. 996, 95 So.2d 632 (1957), which case was relied upon by the trial judge herein. There, language identical to that contained in the instant contract (quoted above) was involved, and the Louisiana Supreme Court impliedly .held that time was not of the essence in a real estate sales agreement to purchase “on or prior to March 1, 1956.” With regard to defendant-seller’s contention that plaintiff-purchaser was automatically in default for failing to demand title on March 1, the Court stated:

“This [contract] language clearly negatives the idea of the purchaser’s being in automatic default for mere failure to perform, it requiring that before the deposit is forfeited the vendor must tender title. And it follows that, since the defendant herein did not tender a title, this plaintiff * * * was not in legal default. Accordingly, he could place defendant in default and demand specific performance. * * * ”
(Everhardt v. Sighinolfi, 95 So.2d at 634, 635)

Inasmuch as the purchaser is not in default until the title has been tendered by the seller, this case falls under subpara-graph (2) of Article 1911 of the Civil Co.de which provides:

“The debtor may be put in default in three different ways: by the term [terms] of the contract, by the act of the creditor, or by the operation of law:
“2. By the act of the party, when at or after the time stipulated for the performance, he demands that it shall be carried into effect, which demand may be made, either by the commencement of a suit, by a demand in writing, by a protest made by a notary public, or by a verbal requisition made in the presence of two witnesses.”

Time not being of the essence of their agreement and title never having been tendered by the defendants nor demanded by the plaintiff on or prior to April 7, 1973, neither was in default and defendant had a right to put plaintiff in default under the contract in spite of his failure to do so prior to April 7, 1973. Fortenberry v. Decay, 279 So.2d 725 (La.App. 1st Cir. 1973), writ refused, 282 So.2d 140 (La.1973).

Having found that the contract remained viable after the time for taking title on April 7, 1973, had expired, we now enforce the contract in accordance with its terms.

Under the terms thereof the defendant Estave, upon the failure of the plaintiff to take title, had the right to declare the instant deposit of $500, ipso facto, forfeited “without formality beyond tender of title to purchaser.” The tender of title to plaintiff took place on April 16, 1973, and on at least two other occasions prior to plaintiff’s suit, thus entitling defendant to retain the $500 deposit.

The agreement further provides that At-chafalaya Realty’s commission was due upon Estave’s acceptance of plaintiff’s offer and approval of the mortgage loan. Therefore, plaintiff is obligated for said commission and attorney’s fees in view of the fact that it was he who failed to comply with the terms of the agreement.

Atchafalaya Realty’s contention that they should be awarded an increase of attorney’s fees for the defense of the instant appeal is not considered since they did not appeal nor answer the appeal of the plaintiff as required by LSA-C.C.P. Art. 2133, Audubon Coin and Stamp Company v. Alford Safe and Lock Company, 230 So.2d. 278 (La.App. 1st Cir. 1969). See, also, American Security Bank of Ville Platte v. Estate of Joseph, 284 So.2d 94 (La.App. 3rd Cir. 1973), where, as in the instant case, the Court was confronted with a contractual obligation to pay attorney’s fees. Citing Code of Civil Procedure Article 2133, the Court refused to increase attorney’s fees from 25 percent to 30 percent (the percentage specified in the promissory note sued upon) since the appellee neither appealed nor answered the appeal of the appellant.

For the above and foregoing reasons, the judgment of the trial court is affirmed, at the cost of plaintiff-appellant.

Affirmed.

      . LSA-C.C. Art. 1911(1) provides:
      “The debtor may be put in default in three different ways: by the term [terms] of the contract, by the act of the creditor, or by the operation of law:
      “1. By the terms of the contract, when it specially provides that the party, failing to comply, shall be deemed to be in default by the mere act of his failure.”

      . LSA-C.C. Art. 1933(1) provides:
      “When the breach has been passive only, damages are due from the time that the debtor has been put in default, in the manner directed in this chapter.
      ^ ^ sfc ^
      “1. When the thing to be given or done by the contract was of such a nature, that it could only be given or done within a certain time, which has elapsed, or under certain circumstances, which no longer exist, the debtor need not be put in legal delay to entitle the creditor to damages.”

      . LSA-C.C.P. Art. 2133, in pertinent part, provides:
      “An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. * * * ”


author: SCHOTT, Judge.

text:
    Howard LINDSAY, d/b/a L & L Auto Clinic v. Herbie MILLS, d/b/a Crown Roofing & Coating Co. or Crown Roof Coating Co.
    No. 7169.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.
    Rehearing Denied Feb. 10, 1976.
    Stuart A. McClendon, and Mark Tro-seth, Metairie, for plaintiff-appellant.
    Edwards, Porteous & Lee, George T. Mustakas, II, Gretna, for defendant-ap-pellee.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff’s suit for $856.62 was based upon a number of invoices for automotive and air-conditioning repairs and wrecker and storage charges. Defendant answered with a general denial, raising no affirmative defenses. The trial consisted only of the testimony of the parties and plaintiff’s invoices, after which the trial judge dismissed plaintiff’s suit giving the following reasons for judgment:

“There was diametrically opposed testimony on each and every item of repair. As these proceedings will reveal, only two witnesses testified; the Plaintiff and the Defendant, both of whom testified with equal sincerity.
“Accordingly, the Court concludes that the Plaintiff failed to carry the burden of proof, as required by law. Therefore, Plaintiff’s suit will be dismissed at Plaintiff’s costs.”

A review of the record does not support these reasons for judgment in their entirety. Except with respect to the bill for wrecker service and storage, which will he discussed below, plaintiff made out a prima facie case against defendant by virtue of his invoices and his own testimony that the work done on the eight invoices involved was authorized by defendant and was properly performed by him or his employees under his supervision. Olympic Electric Service, Inc. v. Mills, 320 So.2d 274 (La.App. 4th Cir. 1975).

In support of his defense defendant testified that he had no recollection with respect to two invoices for repairs to an air-conditioning unit for a motor home totaling $446.91. He offered no testimony with respect to repairs to a Nova for $7.88, but he acknowledged that he had authorized the work. Regarding certain repairs on an International Harvester truck, he had no recollection relative to an invoice for $126.38 and he said only that he thought he had paid another invoice on that truck for $52.62.

Thus, as to the foregoing items totaling $633.79 the record does not show that the testimony of the parties was “diametrically opposed.” Defendant’s testimony that he did not remember, or that he thought he had paid was insufficient to rebut plaintiff’s prima facie case with respect to these items.

Plaintiff is likewise entitled to recover the sum of $128.25 represented by two invoices for work performed on a Thunderbird automobile. Defendant testified that the work was done poorly but plaintiff testified that the only problem was that the wrong type springs were presented to him by defendant with instructions for him to install those springs. Plaintiff maintains that he does not stand behind parts when they are supplied by the customer. The work of the installation was authorized and defendant did not prove that the installation was improperly or poorly performed. Plaintiff is entitled to recover for this item.

As to an invoice for $105.38, on September 1, 1972, plaintiff testified that this work was authorized by defendant but defendant denied the authorization. The work order and invoice are not signed by defendant but by someone who was not identified by either of the parties. Under these circumstances plaintiff is not entitled to recover this item.

As to the wrecker and storage bill, after defendant’s truck broke down he did order wrecker services from plaintiff, for which plaintiff is entitled to recover in the amount of $35.00. The truck was brought to plaintiff’s shop for repairs. According to plaintiff, after he made an estimate and presented it to defendant the latter refused to have the repairs done, plaintiff then demanded that the truck be removed and informed defendant that he was going to charge for storage, and after a considerable amount of time had passed defendant removed the vehicle without plaintiff’s knowledge. Plaintiff testified further that he based his charges on 50% of the $3.00 daily charge he understood another storage facility was charging. Defendant’s version was that the reason for the truck’s breakdown in the first instance was poor workmanship on the truck previously performed by plaintiff, and that the only reason why the truck was left on plaintiff’s property for such a long period of time was plaintiff’s refusal to repair the truck at his expense or release the truck to defendant. No contract for storage was established between the parties and we agree with the trial judge that the evidence does not support an award to plaintiff for this item.

Summing up, plaintiff is entitled to the sum of $762.04 for the repair items and $35.00 for wrecker service, subject to a credit of $426.80 which plaintiff acknowledged was due defendant, or a balance of $370.24.

Accordingly, the judgment of the trial court is annulled and set aside and it is now ordered that there be judgment in favor of plaintiff, Howard Lindsay, d/b/a L & L Auto Clinic, and against defendant, Herbie Mills, d/b/a Crown Roofing & Coating Co. or Crown Roof Coating Co., in the full and true sum of $370.24, with legal interest from date of judicial demand until paid, and for all costs of these proceedings.

Affirmed in part, reversed in part.


author: GULOTTA, Judge.

text:
    Murray J. STEWART v. Alfred J. ZELLER and Sentry Insurance Company.
    No. 7085.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.
    Rehearing Denied Feb. 10, 1976.
    Writ Refused March 19, 1976.
    Wayne Douglas Mancuso, Metairie, for plaintiff-appellant.
    Hammett, Leake, Hammett, Hayne & Hulse, Robert E. Leake, Jr., Michael E. Wanek, New Orleans, for defendants-ap-pellees.
    Before GULOTTA, BOUTALL and MORIAL, JJ.
   GULOTTA, Judge.

Plaintiff, a motorcycle driver, appeals from a judgment dismissing his suit for damages and injuries sustained as a result of a collision with an automobile at the intersection of S. Rocheblave Street and Napoleon Avenue on August 7, 1971, at approximately 12:00 noon. The day was clear and the street was dry.

Defendant, Alfred J. Zeller, was driving his automobile in an easterly direction on S. Rocheblave Street. He stopped at the intersection of S. Rocheblave and Napoleon Avenue, and observed three motorcycles, traveling abreast of each other on Napoleon Avenue and going in the direction of the river (southerly). According to Zeller, the motorcycles were approaching from his left, at an approximate speed of 30 or 35 miles per hour, and a distance of slightly more than one block, when he started to cross Napoleon Avenue. Zeller stated that as he was crossing the intersection, the motorcycles increased their speed when they reached the middle of the block. Upon reaching the middle of the traffic lane closest to the neutral ground, the left rear panel and left rear wheel of the Zeller automobile were struck by the Stewart motorcycle. The two remaining motorcycle drivers, traveling to the right of plaintiff, successfully passed behind the Zeller automobile and were not involved in the accident.

Plaintiff complains that the trial judge erred in concluding that he was contributo-rily negligent by traveling at an excessive rate of speed and in not concluding defendant had the last clear chance to avoid the accident. We do not agree. Accordingly, we affirm.

The record contains testimony supporting the trial judge’s written reasons for judgment in which he concluded that plaintiff “was contributorily negligent in that he was traveling at an excessive rate of speed and, therefore, is precluded from recovery”. Two witnesses, i. e., now Judge Patrick Schott and Mayo K. Emory, in addition to plaintiff, testified that plaintiff’s motorcycle left from 100 to 106 feet of skid marks in a straight, unbroken line in the left traffic lane nearest the neutral ground. These witnesses further indicated that the skid marks ended approximately seven to nine feet from the point of impact, corroborating plaintiff’s testimony that the motorcycle turned on its side approximately that distance from the point of impact and slid into the defendant’s automobile.

Judge Schott and Mr. Emory estimated the speed of plaintiff’s motorcycle at between 40 to 45 miles per hour. Also, Dr. William Tonn, Jr., an expert in accident reconstruction, stated that, in his opinion, plaintiff’s motorcycle was traveling in the range of 45 miles per hour. His conclusion was based upon the hypothet that the motorcycle skidded approximately 100 feet in a straight, unbroken line and on actual tests made by a similar motorcycle under similar circumstances at speeds of 30, 35, 40 and 45 miles per hour.

The trial judge chose to place reliance on the testimony of plaintiff’s witnesses who testified as to the speed of plaintiff’s motorcycle and the length of the skid marks. He chose further to reject plaintiff’s version of the accident, i. e., that the defendant’s automobile suddenly came out from S. Rocheblave Street, approximately .20 to 30 feet in front of the oncoming motorcycle, and that plaintiff, though traveling within the 35 mile per hour speed limit, could not avoid the accident.

Well engrained in our jurisprudence, not requiring citation, is the rule that questions of fact based on credibility will not be disturbed absent a finding of manifest error. We find no such error in the determination made by the trial judge that plaintiff was guilty of contributory negligence.

We reject also plaintiff’s contention that Zeller did not avail himself of the last clear chance to avoid the accident when he failed to accelerate his vehicle, thereby removing it from the path of the oncoming motorcycle. We cannot say that Zeller’s actions, after he realized plaintiff’s plight, were unreasonable. As stated in Conley v. Continental Insurance Company, 270 So.2d 342 (La.App., 1st Cir. 1972), writ refused, 273.So.2d 42 (La.1973):

“The law is clear that one who suddenly finds himself in a position of peril, without sufficient time to consider and weigh all circumstances or best means which may be adopted to avoid an impending danger, is not required to exercise such control or degree of care and caution as required of a motorist who has ample time and opportunity for the full exercise of judgment and reason. * * Jj{

It is necessary, in applying the rule, that the test of reasonableness be considered under the circumstances and the conditions existing at the time of the accident. Zeller testified that when he first saw the approaching motorcycles, they were traveling well within the speed limit, a block away, and that he had sufficient time to cross the southbound Napoleon Avenue traffic lane. According to eyewitness Judge Schott, the motorcycles revved up, and increased their speed to between 45 and 50 miles per hour after Zeller commenced to cross the intersection. Zeller testified that he did not accelerate' his automobile because everything happened so quickly. There exists no evidence in the record to dispute Zeller’s testimony in this respect. Furthermore, no convincing evidence is contained in the record, as claimed by plaintiff, that acceleration of the Zeller automobile would have taken defendant’s vehicle from the oncoming path of the Stewart motorcycle in time to avoid the accident.

Under the circumstances, we cannot say that Zeller, after finding himself in a position of peril, had an opportunity to avoid the accident or that his actions were unreasonable. The doctrine of last clear chance is inapplicable. The judgment is affirmed.

Affirmed.

      . Napoleon Avenue is a neutral ground thoroughfare with two traffic lanes and one parking lane for traffic traveling in the direction of the river (southerly direction) and two traffic lanes and one parking lane for traffic heading in the direction of the lake (northerly direction). S. Rocheblave is a two way street. Napoleon is described in the record as a major thoroughfare and S. Rocheblave is described as a minor residential street.

      . A Honda CB 350.

      . See Bazile v. Figueroa, 274 So.2d 837 (La.App., 4th Cir. 1973).