text:
    David WOOTEN, alias David Lee Wooten v. STATE.
    7 Div. 597.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 1978.

      William D. Hudson, Gadsden, for appellant.
    William J. Baxley, Atty. Gen. and Anthony McLain, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for rape. A jury fixed sentence at ten years’ imprisonment.

There was no motion to exclude the state’s evidence, no request for an affirmative charge or directed verdict, and no motion for new trial. All the requested charges were given and defense counsel announced “satisfied” with oral charge of the trial court. We are not called upon to review the sufficiency of the evidence to support the conviction. Without detailing the testimony of each witness we will simply state that there was sufficient evidence to support the charge of rape.

I

The day before trial the appellant made an oral motion to quash the entire jury venire on the grounds that it “was not constitutionally constituted to race and age.” In support of this motion, the clerk for the Etowah County Jury Commission had been ordered “to evaluate its system of selecting jurors for the jury roll as regards to race and age”. Exhibits were introduced to show the number of names added and deleted from the jury roll by the Jury Commission since that time. The appellant argues that since these figures show more deletions than additions they alone are “sufficient to show a total failure of the commission to attempt to comply with the Court order of 1976 and that Wooten was not given a properly constituted jury venire from which to select his jury”.

The clerk of the Jury Commission testified that she did not keep up with how many names were removed and added to the jury list. She denied any intentional discrimination and stated that she had made an effort to get more “young people” and blacks on the jury roll since 1976.

The exhibits introduced by the appellant list only the number of additions and deletions of names from the jury roll. They contain no indication of race or age. The only other evidence bearing on the issue of discrimination was statements of counsel of the facts that, of the ninety-four veniremen who were summoned and appeared for a week of jury trials, only three jurors were black and “a very small percentage — no one counted them specifically because no one had access specifically to their ages, but a very small number by appearance appeared to be under 30”. No attempt was made to prove the percent of the black population of Etowah County and what percent was present on the entire jury venire. Nor was there any effort to prove how many individuals under thirty were included on or excluded from the venire list. The only reference to this matter was the statement of an attorney for another defendant who was to be tried the same week as the appellant, made in the initial presentation of the motion to the court, that “only three blacks are upon the venire, which represents some less than two and one-half percent of the total jury venire as opposed to a population in Etowah County representative of some twenty to twenty-two percent”. The actual proof in this matter, without reference to surmise and speculation, is totally insufficient to support appellant’s contentions of constitutional violations of the jury selection process.

“Systematic exclusion means a purposeful non-inclusion based solely on race, and the burden of proving discrimination by systematic exclusion is on the defendant. Purposeful discrimination may not be assumed or merely asserted, it must be proved. Mere statistical disparity between the number of blacks presumed eligible for jury duty and the number actually included in the jury roll does not of itself establish a primary inference of invidious discrimination. Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692; Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759; Beecher v. State, 294 Ala. 674, 320 So.2d 727.”
Rainer v. State, 342 So.2d 1348, 1349 (Ala.Cr.App. 1977).

See also Butler v. State, 285 Ala. 387, 232 So.2d 631 (1970).

“(P)urposeful discrimination may not be assumed or merely asserted. Brownfield v. State of South Carolina, 189 U.S. 426, 23 S.Ct. 513, 47 L.Ed. 882; Tarrance v. State of Florida, 188 U.S. 519, 23 S.Ct. 402, 47 L.Ed. 572; Smith v. State of Mississippi, 162 U.S. 592, 16 S.Ct. 900, 40 L.Ed. 1082; Bush v. Com. of Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354. It must be proven, Tarrance v. State of Florida, supra; Martin v. State of Texas, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497, . But a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the venire of jury roll from which petit jurors are drawn. State of Virginia v. Rives, 100 U.S. 313, 322-323, 25 L.Ed. 667; Gibson v. State of Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075; Thomas v. State of Texas, 212 U.S. 278, 282, 29 S.Ct. 393, 394, 53 L.Ed. 512; Cassell v. State of Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839. Neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group . But an imperfect system is not equivalent to purposeful discrimination based on race.”
Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 827, 829, 830, 13 L.Ed.2d 759 (1965).

These same comments regarding discrimination based on race are equally applicable to discrimination based on age or any other factor. Giddens v. State, 333 So.2d 615 (Ala.Cr.App. 1976).

Disproportionate statistics, e. g. black population as against black jurors, may constitute a prima facie case of purposeful discrimination shifting the burden to the state to rebut the presumption of unconstitutional action. Black v. Curb, 464 F.2d 165, 168 (5th Cir. 1972). Here the appellant failed to sustain his burden of proof in supplying such disproportionate statistics. There is no legal evidence in this case to even find a statistical disparity between the number of blacks and youths presumed eligible for jury duty and the number actually included in the jury roll. Jackson v. Morrow, 404 F.2d 903 (5th Cir. 1968); Harris v. State, 352 So.2d 460 (Ala.Cr.App.), affirmed, 352 So.2d 479 (Ala.1976); Elliott v. State, 337 So.2d 158 (Ala.Cr.App. 1976); Giddens v. State, 333 So.2d 615 (Ala.Cr.App. 1976); Bowens v. State, 54 Ala.App. 491, 309 So.2d 844, cert. denied, 293 Ala. 746, 309 So.2d 850 (1974); Lipscomb v. State, 53 Ala.App. 647, 303 So.2d 148 (1974); Racine v. State, 51 Ala.App. 484, 286 So.2d 890, cert. denied, 291 Ala. 684, 286 So.2d 896 (1973). The evidence in this case only reveals the racial composition of the jury venire drawn for one week of trial. Since no proof was ever offered to show the age or racial composition of the master jury list and of the entire county, the motion to quash was insufficient and could have been denied without a hearing. Harris, supra. Here the motion was properly denied following a hearing.

II

After a jury was duly qualified but before it was impaneled, defense counsel challenged for cause the entire venire. The motion was made in the trial judge’s chambers.

“MR. HUDSON (Defense Counsel): Your Honor, the defendant would challenge for cause the entire venire on the grounds that in response to a question asked by Mr. Moore (Deputy District Attorney) did any of them believe the virginity of the prosecuting witness to have any bearing on the issue in the case or her consent, that no one answered that they thought that it had any such bearing, and, your Honor, I think that the virginity of the witness does have a bearing on the issue of her consent, and that the jury — the entire venire has shown its prejudice in this regard, and we would challenge the entire venire for cause.
“THE COURT: Overrule. Is that all?
“MR. HUDSON: Yes, that’s all.”

At trial no evidence was presented or comment made to show the previous chastity of the prosecutrix. We read the alleged question and jury response to mean that, even if the prosecutrix had been chaste, the jury would not allow it to bias or prejudice their verdict and overwhelm their assessment of the facts.

Additionally we note that evidence that the prosecutrix was a woman of chaste or unchaste character is perfectly competent evidence as bearing on the probability or improbability of her consent to the alleged act of intercourse with the accused. Griffin v. State, 155 Ala. 88, 46 So. 481 (1908). Though his rule is now limited by Section 12-21-203, Code of Alabama 1975, restricting evidence relating to the past sexual behavior of the complaining witness to that directly involving the participation of the accused, the jury has the right to consider any proper evidence on this subject, its weight and effect being solely within their determination.

We find no indication of probable bias or prejudice in the jury’s response to the district attorney’s question. The trial judge properly denied the motion.

We have searched the entire record for error and found none. Therefore the judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Phillip MATTHEWS v. STATE.
    8 Div. 61.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 1978.

      Phillip Matthews, pro se.
    William J. Baxley, Atty. Gen. and Elizabeth N. Petree, Asst. Atty. Gen. for the State, appellee.
   CLARK, Retired Circuit Judge.

A jury found appellant guilty of forgery of a check drawn on First Alabama Bank of Huntsville for the sum of Three Hundred Nine Dollars and Forty Cents, which constitutes forgery in the first degree. Code of Alabama, Recomp. 1958, Tit. 14, § 199. The court fixed his punishment at imprisonment for five years, which is within the limits prescribed by Tit. 14, § 207.

Defendant was at first represented by employed counsel. In the course of such representation a trial of defendant was commenced, but a mistrial was ordered and the case continued for trial at the request of defendant. Upon the call of the case for trial that resulted in the conviction from which this appeal was taken, defendant informed the court that he was dissatisfied with his employed counsel and requested the court to appoint him counsel, and not appoint the counsel whom he had employed. The court complied with the request and appointed counsel to represent defendant as an indigent and held the case in abeyance until the next day, in order for defendant and his appointed counsel to prepare together for the trial.

Upon call of the case for trial the next day, his appointed counsel informed the court that defendant had asked him “to ask the court if he would be allowed to represent himself without the benefit of an attorney.” After a lengthy colloquy between the court and defendant, in which defendant continued to insist that he be allowed to represent himself, and a warning from the court that he was making a mistake, the court allowed him to represent himself on the trial, with the understanding, which was agreeable to defendant, that his appointed counsel would sit with him and be with him to assist him in defending himself, which said counsel did.

Defendant made a preliminary motion for a psychiatric examination, but in the course of a discussion of it, he withdrew the motion and requested the court to “proceed with the trial.”

Donna Hopper testified that while she was employed by First Alabama Bank of Huntsville on August 4, 1977, she was presented a check by defendant that purported to be a check drawn on said bank by Sledge Upholstery, dated August 4, 1977, and payable to Reggie Hyder for the sum of Three Hundred Nine Dollars and Forty Cents. She positively identified defendant as the person who presented the check. She recalled that at the time the check was presented she took a nondriver’s I.D. card with the name Reggie Hyder thereon as identification. She said defendant presented the check to her for deposit, “less cash,” that only thirty dollars of the amount was actually deposited to the account of Reggie Hyder and the balance of two hundred seventy-nine dollars and forty cents was delivered to defendant.

James Sledge, owner of Sledge Upholstery, testified that defendant had worked for him about a month, but that the purported check of Sledge Upholstery for three hundred nine dollars and forty cents was not signed by him or by anyone authorized by him to sign such a check. He said the purported signature of James Sledge on the check was not the witness’ signature. He further said he did not know Reggie Hyder, whose name was on the check as the payee thereof. According to the witness, the check was on one of the printed forms of checks being used by Sledge Upholstery and that while defendant was working for the company defendant had access to the company checks, which were kept under the office desk. The particular check was similar in form to three cancelled paychecks of the previous month which were payable to defendant and which were admitted in evidence.

Defendant himself did not testify, but he presented evidence of the operations of the License Department of the Alabama Department of Public Safety showing that upon proper identification and the payment of a fee, a non-driver can obtain an I.D. card, that a Reggie Hyder had been issued a non-driver’s I.D. card, but no Reggie Hyder had been located.

When defendant stated he would take an appeal from the conviction, the court first appointed as his attorney on appeal the same attorney that represented him on the trial, but upon the request of appellant that he “be permitted to perfect and direct his own appeals,” the court relieved appellant’s former attorney “from further proceeding in this matter” and appointed another highly regarded attorney of the Huntsville Bar “to assist the defendant” on appeal. Appellant has made his appearance in a pro se brief in which he acknowledges the assistance of counsel appointed by the court to assist him.

In the first part of his brief, appellant argues for a reversal on account of alleged failure of his counsel to obtain a preliminary hearing and refusal to “present the probable cause question to the court, as well as the question of illegal arrest.” There is nothing in the record to support appellant’s assertion. Furthermore, as there is an indictment upon which the prosecution is based, the matters complained of furnish no cause for a reversal as they have no bearing on the validity of proceedings that are based upon a valid indictment. Queor v. State, 278 Ala. 10, 174 So.2d 687 (1965); Bowman v. State, 44 Ala.App. 331, 208 So.2d 241 (1968); Core v. State, 50 Ala.App. 533, 280 So.2d 794, cert. denied 291 Ala. 776, 280 So.2d 797 (1973); Jordan v. State, 56 Ala.App. 55, 318 So.2d 793, cert. denied, 294 Ala. 761, 318 So.2d 801 (1974); Scaife v. State, Ala.Cr.App., 337 So.2d 146 (1976).

It appears that while Donna Hopper was testifying, she was shown a photograph which she testified had been exhibited to her by Howard Bolling, a parole officer, a short time after August 4, 1977. She testified that the photograph was the likeness of defendant. The photograph was never admitted or offered in evidence, although defendant at one time while holding the photograph in his hand exhibited it to the jury and stated that he would “like to exhibit it to the jury.” Reference was made in her testimony to other photographs of defendant that Mr. Bolling had shown her after August 4, 1977. It appears that no photographs of persons other than defendant were shown her by Mr. Bolling.

Appellant contends that the fact that the witness was shown photographs of defendant by Mr. Bolling, and of nobody else, constituted such impermissibly suggestive identification procedure as to taint and thereby vitiate her in-court identification of defendant.

Whether an in-court identification has been so tainted by an extrajudicial identification as to vitiate the in-court identification is not to be determined solely by the circumstances of the extrajudicial identification, but all of the circumstances relative to the identification of defendant by the witness are to be taken into consideration, and if it is determinable therefrom that an in-court identification was independent of the extrajudicial identification, evidence of the in-court identification is admissible. Spears v. State, 57 Ala.App. 525, 329 So.2d 579, cert. denied 295 Ala. 420, 329 So.2d 582 (1976); Impson v. State, Ala.Cr.App., 331 So.2d 837, (1976); Cross v. State, Ala.Cr.App., 351 So.2d 698 (1977); Brown v. State, Ala.Cr.App., 342 So.2d 1367 (1977); Donilson v. State, Ala.Cr.App., 350 So.2d 738 (1977).

Obviously cognizant of the principle of law just stated, the trial court questioned the witness on the particular point in a hearing out of the presence of the jury, as shown by the following:

“. . . Let me ask you this, please M’am; are you testifying in court as to identification of this witness based on the appearance of the photograph or from your own personal knowledge?
“A My own personal knowledge.
“THE COURT: And your recollection of him at that time?
“A Yes, sir.”

We are convinced that the record supports the quoted statement of the witness to the effect that no photographs shown her by Mr. Bolling had any influence upon her in-court identification of defendant, and, therefore, did not taint the in-court identification. She was positive as to her recollection of defendant as he presented the allegedly forged check to her for a “less cash” deposit. It was a part of her duty to the bank at that time to identify the one presenting the cheek as the person named in it as payee and as the person whose photograph on the non-driver’s identification card was exhibited to her for comparison. In addition, the witness said that prior to the date of the alleged forgery she had had occasion to see the defendant when she was working out at the drive-in area of the same bank.

Appellant asserts as error the action of the court in allowing the State to present testimony by another witness, Connie Tucker, of another forgery by appellant of another purported check of Sledge Upholstery on August 4, 1977. That check was also payable to Reggie Hyder and was for three hundred nine dollars and sixty cents. It appears that a separate indictment was returned against appellant for the forgery of that check, that he has been tried and convicted as to that indictment and has appealed his conviction. Notwithstanding the general rule that evidence of another crime is not usually admissible in a particular case, the evidence here considered is admissible under at least two exceptions (criminal intent and identity) to the general rule of exclusion.

“The crime of forgery in Alabama has, as its crucial element, a requisite intent on the part of the defendant to defraud. As tending to prove this intent, the State is allowed to introduce evidence that the accused forged other paper of a similar kind at or about the time of the commission of the charged offense, which purported to have been executed by the same person.” Gamble, McElroy’s Alabama Evidence, 3d Ed. (1977), § 70.01(11).

Included among the authorities cited by the author are Christison v. State, 41 Ala.App. 192, 142 So.2d 666 (1916), aff’d, 273 Ala. 564, 142 So.2d 676 (1962); Hall v. State, 21 Ala.App. 476, 109 So. 847, cert. denied 215 Ala. 148, 109 So. 849 (1926); Kirby v. State, 17 Ala.App. 151, 82 So. 641, cert. denied 203 Ala. 473, 83 So. 416 (1919).

Appellant states in his brief that the State “presented a witness posing under the disguise of defense witness” and says that the record incorrectly lists him as a defense witness and incorrectly indicates that he was called as a witness for the defense. The record shows that the witness was first interrogated by defendant and thereafter was cross-examined by the State. We do not find that the record is inaccurate in referring to the witness as defense witness. At any rate, such a reference to him in the record is a formality of the record that did not form a part of the actual trial of the case and thereby come to the attention of the jury and could not have been harmful to defendant.

Appellant lists a large number of questions asked witnesses by the prosecution and complains that they constitute leading questions. Some of them are not leading. As to some of them, no objections were made. As to any of them that were leading and as to which objections were made, we find that rulings of the court were well within its discretionary province in permitting leading questions on direct examination.

Appellant argues that the judgment and sentence should be reversed because of the reference to Mr. Howard Bolling as a parole officer during the interrogation of Donna Hopper as a witness for the State as to photographs of defendant shown her by Mr. Bolling. Appellant contends that such reference was prejudicial to him in that it tended to show that he had been previously convicted of crime. There may be good ground for the conclusion of probable injury from such reference, but we do not find that any effort was made by defendant, by objection, motion to exclude, motion for a mistrial, or other action, to eradicate the injury claimed. Defendant invoked no action of the court as to the particular point, and the court should not be charged with error as to it.

As a final contention, appellant claims that the attorney appointed by the court to assist him in the defense, he having elected to defend himself, “interfered with the defense.” This contention is not supported by the record, in our opinion. The attorney had an obviously difficult role but one which defendant deliberately and knowingly chose for him to assume. On the whole, we find that he performed his duty well and that nothing that he did constituted an interference with the defense, as charged.

We have found no error in the record prejudicial to defendant and the judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Bobby Joe WATTS v. STATE.
    8 Div. 74.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 1978.
    Henry Sanders Mims, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

The appellant in this case was fifteen years of age at the time of the alleged robbery of Ms. Geneva Boyd on August 5, 1977. The grand jury of Madison County returned the indictment of the appellant on October 25, 1977. The appellant’s case was transferred to the Madison County Juvenile Court on December 6, 1977. The appellant was declared incorrigible on February 28, 1978, by that court. The case was then re-transferred to the Circuit Court. The appellant was tried on April 17, 1978, as an adult, his application for youthful offender status pursuant to Section 15-19-1, Code of Alabama 1975, having been denied on November 7, 1977. The jury found the appellant guilty of the offense of robbery and fixed punishment at twenty years imprisonment.

At trial the appellant’s signed confession was admitted into evidence over the objection of the appellant’s counsel. The controlling issue to be determined on this appeal is whether vel non it was reversible error to admit the appellant’s confession into evidence.

After careful examination of the entire record, we conclude, for the reasons stated below, that the confession was erroneously admitted and reverse and remand this case for a new trial.

I

Pursuant to a resolution of the Supreme Court of Alabama, dated December 1,1975, the provisions of Act No. 1205, Acts of Alabama 1975, became effective on January 16, 1977. This act, known as “The Judicial Article Implementation Act,” contains a provision now codified as Section 12-15-67, Code of Alabama 1975, which provides:

“Use of statements of children, etc., during custody, preliminary inquiries, predisposition studies, etc., prior to determination of allegations of petition in delinquency or in need of supervision cases or prior to conviction in criminal proceedings.
“Unless advised by counsel, the statements of a child or other information or evidence derived directly or indirectly from such statements made while in custody to police or law enforcement officers or made to the prosecutor or probation officer during the process of the case, including statements made during a preliminary inquiry, predisposition study, informal adjustment or consent decree, shall not be used prior to a determination of the petition’s allegations in a delinquency or in need of supervision case or in a criminal proceeding prior to conviction. (Acts 1975, No. 1205, § 5-125.)

The appellant’s confession was obtained on August 9, 1977 (R. p. 107). In applying the above quoted statute, we note that the appellant was legally a child at the time his confession was obtained within the meaning of Section 12-15-1(3), Code of Alabama 1975. The record reveals that the appellant did not have counsel present at the time his confession was obtained (R. p. 109). This was the ground of defense counsel’s objection at trial which objection was overruled (R. p. 121).

Therefore, error to reversal occurred in admitting the appellant’s confession into evidence under Section 12-15-67, Code of Alabama 1975. It is irrelevant that the appellant’s confession was voluntarily made if he did not have counsel present at the time. Similarly, the applicability of the above quoted statute is not affected by the court’s denial of an application for youthful offender status or by a determination of incorrigibility by the juvenile court.

Therefore, for the reasons stated, this case is due to be and is hereby reversed and remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.

HARRIS, P. J., concurs in result only.

      . Cf. Parker v. State, Ala.Cr.App. (1977), 351 So.2d 927, cert. quashed, Ala., 351 So.2d 938; and Myles v. State, Ala.Cr.App. (1977), 354 So.2d 842.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Willie James POOL.
    No. 61451.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    William L. Lowe, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Stephen A. Glassell, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

By bill of information filed September 13, 1977 Willie James Pool was charged with theft and receiving stolen things, violations of La.R.S. 14:67 and 14:69. After a jury trial he was convicted of receiving stolen things of a value of $700 and was sentenced to nine years in the custody of the Department of Corrections. Pool relies on three assignments of error for a reversal of his conviction and sentence, only one of which, Assignment No. 2, raises issues requiring discussion.

ASSIGNMENT OF ERROR NO. 2

In its motion for discovery filed September 15, 1977, the defense, seeking to avail itself of the right of discovery granted by Louisiana Code of Criminal Procedure, article 719, sought an order permitting it to inspect and copy any results or reports of physical or mental examination, and of scientific tests or experiments made in connection with or material to the case of which the District Attorney had custody, control or knowledge and which was intended for use at trial. The State responded to this portion of the motion by stating that “[n]o scientific tests or experiments were made in connection with this investigation.”

During cross-examination of a Shreveport police officer testifying for the State, defense counsel, being apprised that customary processing of a stolen vehicle includes dusting it for fingerprints as well as photographing it, asked if the office dusted for fingerprints, and received an affirmative answer. Defense proceeded with another line of questioning, but when the State conducted redirect examination, it inquired whether the officer had found any fingerprints of the defendant in the vehicle and received an affirmative answer. The office ultimately revealed that he found the defendant’s fingerprint on the car’s inside rear view mirror.

The defense protested the State’s inquiries outside the jury’s presence, basing its objection on the State’s failure to apprise of the existence of the fingerprint evidence when it responded to the defense discovery motion. The State argued it had not intended to use the evidence and had resorted to its introduction only after the defense “opened the door” by its cross-examination. Rejecting a defense assertion that the State’s misrepresentation prompted its inquiry on cross-examination, the court accepted the’ State’s claim that it had not intended use of the fingerprint evidence and overruled the objection.

The right to discover under certain circumstances the matter sought by the defense was granted in criminal cases by Act 515 of 1977. As previously noted, Article 719, one of the newly drafted articles of the Code of Criminal Procedure providing for expanded criminal discovery, entitles the defense to results or reports of scientific tests or experiments if “. . . made in connection with or material to the particular case, that are in the possession, custody, control, or knowledge of the district attorney and intended for use at trial ” (Emphasis added). On appeal defendant argues that the fingerprint evidence was discoverable notwithstanding the prosecutor’s trial assertion that he had not intended to use the fingerprint evidence at trial. Pool Urges that the trial court erred in using a completely subjective standard to determine the “intended for use at trial” requirement of the statute, arguing that employment of such a subjective standard would allow the State to reserve evidence for rebuttal or cross-examination use, thus hampering full defense cross-examination by inducing fear that undisclosed evidence may unwittingly be uncovered.

This argument contending for other than a literal interpretation of the statute’s “intended for use at trial” requirement is without reversible merit. In the instant case, as noted at trial, the State’s forbearance on direct examination, coupled with the trial judge’s observation that there was no mention of fingerprint evidence in the State’s opening statement, adequately establishes that there was no intent to use the evidence at trial, a prerequisite for its discovery.

Pool’s complaint based on the State’s misrepresentation in its response to his discovery motion presents a somewhat more difficult issue. The situation which arose is similar to those in which inaccurate or misleading answers in response to a motion for bill of particulars lull a defendant into a misapprehension about the strength of the State’s case and cause prejudice when evidence, the possession of which the State has denied, is subsequently introduced at trial. See State v. Boothe, 310 So.2d 826 (La.1975); see also State v. Hatter, 350 So.2d 149 (La.1977). In Boothe, the State had responded to a motion for a bill of particulars seeking the content of confessions, admissions and statements by asserting that it had none. At trial, the State gave timely notice of intention to use an oral inculpato-ry statement, to which the defendant objected on the basis of the representation in the bill of particulars that there was no such statement. The overruling of the objection and the subsequent introduction of the inculpatory statement were urged as error on appeal. We held that introduction of the statement under the circumstances' related was error, amounting to judicial approval of patent misrepresentation, and reversed Boothe’s conviction and sentence.

In the instant case, even if the Court considered unavoidable a determination that introduction of the fingerprint evidence was error based on the rationale of Boothe, reversal of the defendant’s conviction and sentence is not warranted. Not every error mandates the reversal of a conviction and sentence. La.Code Crim.Pro. art. 921; State v. O’Blanc, 346 So.2d 686 (La.1977). In the same vein, we have held that not every violation of a statutory right must result in reversal of a conviction. State v. Ardoin, 340 So.2d 1362 (La.1976). In the O’Blanc case, and in State v. Boothe, supra, the Court expressly considered the importance of the offending evidence as it related to the balance of the State’s case. O’Blanc noted that the evidence of the defendant’s guilt, including the testimony of a co-conspirator, was substantial. In Boothe, the Court emphasized that in light of the testimony of five officers concerning the statement, it could not be argued that the statement had negligible impact or was non-prejudicial.

In the instant case evidence that the defendant’s fingerprint was found in the stolen car did minimal damage considering the overwhelming eye-witness testimony of three police officers which established, without contradiction, Pool’s presence inside the stolen car, which he was driving when he was arrested. While it is likely that the introduction of the fingerprint evidence was error, under the particular circumstances present reversal is not warranted. La.Code Crim.Pro. art. 921.

Decree

For the reasons stated hereinabove, we affirm the conviction and sentence of the defendant.

AFFIRMED.

      . Assignments Nos. 1 and 3 complain that questions asked by the trial judge of a State’s witness regarding features of the stolen car involved in this case were comments on the evidence and that the ruling qualifying a State’s witness as an expert in the field of valuation of used cars over defense objection was error. Our careful examination and consideration of these assignments disclosed that they do not present arguably reversible error.

      . La.C.Cr.P. art. 766 requires that “[t]he opening statement of the state shall ... set forth, in general terms, the nature of the evidence by which the state expects to prove the charge. ” (Emphasis added.)


author: PER CURIAM.

text:
    STATE of Louisiana v. Charles W. DAVIS.
    No. 61456.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Frank J. Kenner, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Wm. L. Brockman, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Charles W. Davis, Edward R. Vernon, Jr., and Cynthia J. Mendenhall were charged in the same information in two separate counts with the crimes of armed robbery (La.R.S. 14:64) and attempted first degree murder (La. R.S. 14:27 and 14:3o). Davis’ motion to be tried separately was granted by the trial judge. After a separate trial by jury, he was found guilty as charged on count one and guilty of attempted second degree murder on count two. On his conviction for armed robbery, defendant was sentenced to serve twelve years at hard labor and to pay court costs of seventy dollars, in default thereof to serve thirty days in the parish prison. On his conviction for attempted second degree murder, defendant was sentenced to serve ten years at hard labor, which sentence was to run concurrently with the sentence imposed on his armed robbery conviction. Defendant was given credit toward service of his sentences for time spent in actual custody prior to imposition of sentences. On appeal, he relies on seven assignments of error for reversal of his convictions and sentences.

We have reviewed the record and find no merit to defendant’s assignments of error. Accordingly, we affirm his convictions and sentences.

DECREE

For the reasons assigned, the convictions and sentences are affirmed.

SUMMERS, J., concurs.

      . The state subsequently amended count two of the information as to Vernon and Mendenhall to charge them with attempted second degree murder.

      . Defendant has neither briefed nor argued Assignment of Error No. 1. Therefore, we consider this assignment of error to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).


author: SUMMERS, J.,

text:
    Charles B. W. PALMER v. Walter WREN et al.
    No. 62352.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Charles B. W. Palmer applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipa-hoa.

Granted; the appeal is reinstated. See Nomey v. St. Department of Highway, La. App., 325 So.2d 732, which has correctly decided this issue.

SUMMERS, J.,

while I agree that this application should be granted, I cannot agree that the Court of Appeal should be reversed, as we are doing here, without a hearing and a statement of reasons as applied to the particular facts of this case.


text:
    Sadie GUIN et al. v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAY. Ethel Pauline Dubois GUIN et al., Mary Frances Murray Guin et al. v. EMPLOYER’S MUTUAL INSURANCE CO. et al. J-M POULTRY PACKING CO., LTD. v. ALLSTATE INSURANCE CO. et al.
    No. 62536.
    Supreme Court of Louisiana.
    July 3, 1978.
   In re: Sadie Guin, et al., Ethel Pauline Dubois Guin, et al. Mary Frances Murray Guin, et al. and J-M Poultry Packing Co., Ltd. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches. 360 So.2d 1185.

Denied.


author: DENNIS, J.,

text:
    Donald JORY v. W. Gregory ARNETTE, Jr.
    No. 62752.
    Supreme Court of Louisiana.
    Aug. 1, 1978.
   In re: Donald R. Jory, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Jefferson Davis. La.App., 360 So.2d 921.

Writ Denied. The result is correct, for the reasons stated in Cook v. Campbell, 360 So.2d 1193 (La.App.2d Cir. 1978) in which certiorari is denied this date.

DENNIS, J.,

is of the opinion that the writ should be granted to afford full hearing and review of the serious constitutional and statutory questions raised by this and other election disputes pending in the state.


author: SANDERS, C. J.,

text:
    STATE of Louisiana v. Francis THERIOT.
    No. 62822.
    Supreme Court of Louisiana.
    Aug. 14, 1978.
   In re: Francis Theriot, applying for remedial writs. Parish of Cameron.

Writ granted. The sentence heretofore imposed in this case is set aside and the case is remanded for resentencing in a manner consistent with law. See State v. Segers, 357 So.2d 1 (La.1978); State v. Bosworth, No. 61,492, 360 So.2d 173 (La.1978).

SANDERS, C. J.,

concurs in the granting of the Writ, being of the opinion that the case is controlled by State v. Bosworth, No. 61,492, La., 360 So.2d 173, handed down June 19, 1978, from which he dissented.

SUMMERS, J., dissents.

MARCUS, J., concurs for reasons assigned by Chief Justice Sanders.


text:
    STATE of Louisiana v. Albert GWINN.
    No. 62870.
    Supreme Court of Louisiana.
    Aug. 15, 1978.
   In re: Albert Gwinn applying for writs of certiorari, prohibition and mandamus. Parish of East Baton Rouge.

Writ granted: The death penalty is not applicable here. See: State v. Lewis, 353 So.2d 703 (La.1977); State v. Smith, 351 So.2d 1191 (La.1977); State v. Brooks, 351 So.2d 1197 (La.1977); State v. Lee, 340 So.2d 180 (La.1976). The case is remanded for trial.


author: SANDERS, C. J., and SUMMERS, J.,

text:
    STATE of Louisiana v. ENTERTAINMENT SPECIALISTS, INC. d/b/a Glenwood Theater.
    No. 62842.
    Supreme Court of Louisiana.
    Aug. 22, 1978.
    Rehearing Denied Aug. 31, 1978.
   In re: Entertainment Specialists, Inc,, applying for writ of certiorari, (review), prohibition and mandamus. Parish of Cad-do.

Writ granted. It is ordered that film seized be, returned to relator; further ordered that injunction be vacated and set aside. See Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973).

SANDERS, C. J., and SUMMERS, J.,

dissent from the order returning this film, since, in their opinion, the film is held under a valid order of the district judge.


text:
    STATE of Louisiana v. Thomas Rhuel SPELL.
    No. 62897.
    Supreme Court of Louisiana.
    Aug. 24, 1978.
   In re: State of Louisiana, through the Honorable J. Nathan Stansbury, District Attorney, applying for writs of certiorari, prohibition and mandamus. Parish of Acadia.

Writ denied. This court will not interfere with proceedings in the trial court during trial unless the ruling below is palpably incorrect.

SUMMERS, J.,

is of the opinion the writ should be granted. The ruling of the trial judge that the witness was not unavailable is erroneous. Invoking the husband-wife privilege had the effect of making the wife unavailable. McCormick, Evidence, § 280, pp. 678-79 (2d ed. 1972).


text:
    STATE of Louisiana v. Louis MIRAMBELL.
    No. 62499.
    Supreme Court of Louisiana.
    Aug. 24, 1978.
   In re: Louis Mirambell applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson.

Writ granted: The parole revocation of June 8, 1978 was erroneously made, the revocation is set aside, and the relator is discharged from restraint and confinement insofar as attributable to the parole revocation rule issued May 18, 1978. As to the sole violation charged by written notice (that the petitioner refrain from criminal conduct) the arrest and charge for the DWI offense does not constitute proof, in the absence of evidence as to the underlying offense, pretermitting whether the driving violation is under the circumstances within the condition prohibiting criminal conduct. State v. O'Connor, 312 So.2d 645 (La.1975). As to the alleged violation of another condition (that the relator maintain psychiatric treatment), the written notice of the charge of probation violation did not specify this as a charge prior to the hearing and the court was in error in receiving evidence there as to, State v. Harris, 312 So.2d 643 (La.1975), pretermitting whether the evidence so received actually proved such violation of this condition.

SUMMERS, J.,

dissents from this reversal of the ruling of the trial judge. In my view the finding of the trial judge was not an abuse of discretion.


text:
    Ida S. WEIGAND v. Herbert D. HUGHES.
    No. 62950.
    Supreme Court of Louisiana.
    Aug. 31, 1978.
   In re: Herbert D. Hughes, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Denied.


text:
    Barbara BELASKY, Individually and as tutrix of the minor, Jennifer Belasky v. H. E. DONALDSON and Fireman’s Insurance Company of Newark, New Jersey.
    No. 62867.
    Supreme Court of Louisiana.
    Aug. 31, 1978.
   In re: Mark Foreman and Fred Von Ah-rens, applying for writs of certiorari and review and for a stay order. Parish of East Baton Rouge.

Writ denied.


author: DIXON, J.

text:
    William GILLS et al. v. OUR LADY OF THE LAKE HOSPITAL et al.
    No. 62614.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Dr. James A. Poche, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge.

Writ denied, with reservation: Our denial is without prejudice to the defendant to raise the issue by a formal dilatory exception pleading prematurity. See also Steeg v. Lawyers Title Ins. Co., 329 So.2d 719 (La.1976).

DIXON, J.

concurs only because this disposition might be more efficient than our granting a writ; the Court of Appeal was clearly in error in failing to rule on applicant’s contention.


text:
    STATE of Louisiana v. Donald VIGNE.
    No. 62615.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Donald Vigne applying for writs of certiorari, mandamus and prohibition. Parish of Iberia.

Granted. The judgment rescinding the order for a hearing on motion for new trial is reversed, and a hearing is ordered on the motion for new trial. (See C.Cr.P. 851(3) and 853).


text:
    STATE of Louisiana v. Richard G. SISSON.
    No. 62209.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Richard G. Sisson, applying for writ of certiorari. Parish of East Baton Rouge.

Writ granted. Conviction set aside. Case remanded to the trial court for it to reconsider its ruling admitting the PEI test in the light of the decision by this court in State v. Graham, 360 So.2d 853, our docket No. 61,540, rendered June 19, 1978.

SANDERS, C. J., and SUMMERS, J.,

dissent from the grant of the writ, having dissented in State v. Graham.


author: TATE and CALOGERO, JJ.,

text:
    In re Grand Jury Subpoena to Sherman A. BERNARD, Louisiana Insurance Commissioner.
    No. 62984.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Sherman A. Bernard applying for writ of certiorari, prohibition, mandamus and stay order. Parish of Orleans.

Writ denied.

TATE and CALOGERO, JJ.,

concur. The only issue before us is a claim of executive immunity from response to a subpoena to testify before a grand jury investigating alleged criminal violations. In denying such immunity, we do not reach the issue of any claim of privilege as to particular questions which may be asked.


author: TATE, J.,

text:
    STATE of Louisiana v. Clarence SIMMONS and Debra McCall.
    No. 62677.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Clarence Simmons and Debra McCall, applying for writ of review.

Denied.

TATE, J.,

concurs. The defendant is entitled to the Brady-type information he seeks on the trial of innocence or guilt, but I am unwilling to hold that any due-process reason has been shown so as to require the state to furnish the information for the trial of the motion to suppress.


text:
    Mrs. Velma YOTHER, wife of George Hesni v. George HESNI.
    No. 62630.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Mrs. Velma Yother Hesni, wife of George Hesni, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Writ denied.

DIXON, J. would grant the writ.


text:
    STATE of Louisiana v. Tony I. BOUTWELL.
    No. 62624.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Tony I. Boutwell applying for writs of certiorari, prohibition and mandamus. Parish of Caddo.

Writ denied.

DIXON and CALOGERO, JJ. would grant as to Count 1.


text:
    STATE of Louisiana ex rel. Adolph KEITH v. C. Paul PHELPS, Secretary, Department of Corrections.
    No. 62595.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Adolph Keith, applying for writ of certiorari. Parish of East Baton Rouge.

Writ denied.

SUMMERS, J. and TATE, J. would grant the writ.


text:
    STATE of Louisiana v. Kenneth SKIDMORE and John J. Bowes.
    No. 61993.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: State of Louisiana, applying for writs of certiorari, prohibition and mandamus and stay order. Parish of Orleans.

Denied.

SUMMERS, J., would grant the writ.


author: SANDERS, C. J., and SUMMERS, J., CALOGERO, J.,

text:
    STATE of Louisiana ex rel. Don B. PARKER v. Hon. Rudolph F. BECKER, III, Judge, Section “E”, Orleans Criminal District Court.
    No. 62600.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Don B. Parker, applying for remedial writs. Parish of Orleans.

Granted; the trial judge is ordered to comply with our order of June, 1978 to appoint a lawyer for applicant, and to hold an evidentiary hearing.

SANDERS, C. J., and SUMMERS, J.,

dissent from the granting of the writ.

CALOGERO, J.,

concurs in the writ grant. Relator has never had, and is entitled to have an evidentiary hearing on his allegations of ineffective assistance and counsel.


text:
    STATE of Louisiana ex rel. Michael BURGE v. Honorable Louis G. DESONIER, Jr., Judge, Section A, 24th Judicial District Court, Parish of Jefferson.
    No. 62648.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Michael Burge applying for writ of mandamus. Parish of Jefferson.

Application granted; except that the Court will appoint counsel to represent applicant on application for rehearing.

Previous action by this Court denying rehearing is set aside, having been improvident in light relator’s not having been represented by counsel, and in light of relator’s having timely sought a rehearing and appointment of counsel.

On Application for Rehearing

IT IS HEREBY ORDERED that Arthur G. Kingsmill be and he is hereby appointed counsel to represent the defendant in connection with his application for rehearing presently pending before this Honorable Court.


text:
    STATE of Louisiana ex rel. Joseph SMITH v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, et al., and Mr. Rudolph F. Becker, III, Judge, Criminal District Court, Section “E”, et al.
    No. 62479.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Joseph Smith, applying for writ of mandamus. Parish of Orleans. Case No. 250—411.

Writ granted. The return shows no waiver of the right to appeal. The appeal, which was dismissed on ex parte order for failure to perfect bill of exceptions, is reinstated. The trial court is ordered to appoint an attorney to file assignments of error and prosecute the appeal.


text:
    STATE of Louisiana ex rel. Lloyd WASHINGTON v. Oliver P. SCHULINGKAMP, Judge, Section “F” Criminal District Court.
    No. 62607.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Lloyd Washington applying for writ of mandamus, prohibition. Parish of Orleans.

Not considered. Application has not been made to the trial court since the appeal was finally disposed of.


text:
    STATE of Louisiana v. Russell LASSAI.
    No. 62964.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Russell Lassai, applying for supervisory writ and stay order. Parish of Orleans.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Oliver P. Schulingkamp Judge of the Criminal District Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 14th day of September, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. John W. WILKERSON.
    No. 62678.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: John W. Wilkerson, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issued herein, directing the Honorable Floyd W. Newlin Judge of the 24th Judicial District, Court for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 15th day of September, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Jack R. JONES.
    No. 62676.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: State of Louisiana, through the District Attorney, Henry N. Brown, Jr., applying for writs of certiorari. Parish of Bossier.

Writ granted.

The petition of the relator in the above entitled and numbered ease having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Louis H. Padgett, Jr. Judge of the 26th Judicial District, Court for the Parish of Bossier, to transmit to the Supreme Court of Louisiana, on or before the 14th day of September, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    CITY OF BATON ROUGE v. June G. OVERTON.
    No. 62397.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: June G. Overton applying for remedial writs. E. Baton Rouge Parish.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable William H. Brown Judge of the City Court of Baton Rouge, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 15th day of September, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 1st day of September, 1978, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Dorothy NELSON
    No. 62653.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Dorothy Nelson, applying for writs of certiorari, prohibition, mandamus, and for a stay order. Parish of Jefferson.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable James M. Lockhart, Jr. Judge of the First Parish Court, Court for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 14th day of September, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Lewis Lee BONIFACE.
    No. 62102.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Lewis Lee Boniface applying for remedial writs. Parish of Ouachita.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable J. Carl Parkerson Judge of the 4th Judicial District, Court for the Parish of Ouachita, to transmit to the Supreme Court of Louisiana, on or before the 15th day of September, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Claudius WALLS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 62268.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Claudius Walls applying for writ of habeas corpus. Orleans Parish.

Denied.


text:
    STATE of Louisiana ex rel. Leroy STERLING v. 20TH JUDICIAL DISTRICT COURT.
    No. 62332.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Leroy Sterling applying for writ of mandamus. E. Parish of Feliciana.

Writ denied. Moot.


text:
    STATE of Louisiana v. Nathaniel SMITH.
    No. 62470.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Nathaniel Smith applying for writ of mandamus. Parish of East Baton Rouge.

Writ denied. The mandamus is moot, since the trial court acted upon the relator’s petition.


text:
    STATE of Louisiana ex rel. Leonard JOHNSON v. C. Paul PHELPS, Secretary, Department of Corrections.
    No. 62643.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Leonard Johnson, applying for writ of certiorari. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana ex rel. Eldridge E. PAYTON v. Honorable Alvin V. OSER, Judge.
    No. 62644.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Eldridge E. Payton, applying for writ of certiorari. Parish of Orleans.

Writ denied.


text:
    Osben JONES, Jr., et al. v. Donald PELTIER et al.
    No. 62650.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Osben Jones, Jr., et al. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche.

Writ denied.


text:
    James Fred ROBERTS v. K & D ENTERPRISES, INC., et al.
    No. 62656.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: James F. Roberts applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana v. L. B. CARRIERE and Larry Zerangue.
    No. 62659.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: State of Louisiana through the District Attorney, Morgan J. Goudeau, III, applying for writ of certiorari. St. Landry Parish.

Writ denied.


text:
    STATE of Louisiana v. James JOHNSON, Roger Goff and Joseph A. Fitch.
    No. 62982.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: James Johnson, et al., applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Lafourche.

Application denied. As to the first assignment of error, cross-examination of defendants should be limited to questions relevant to the issues on the motion to suppress. As to the second assignment, there is an adequate remedy by appeal in the event of conviction.


text:
    STATE of Louisiana v. David NELSON.
    No. 62482.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: David Nelson, applying for writ of mandamus. Orleans Parish.

Writ denied. Moot.


text:
    STATE of Louisiana v. Mary Jo HAMELERS.
    No. 62565.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: State of Louisiana, through Harry F. Connick, District Attorney, Parish of Orleans applying for writs of certiorari, prohibition, and mandamus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Richard G. NAAS.
    No. 62574.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Richard G. Naas applying for writs of certiorari, prohibition and mandamus. Parish of Ouachita.

Writ denied. Adequate remedy by review in the event of conviction.


text:
    P. J. RIZZO et al. v. EMPLOYER’S COMMERCIAL UNION INSURANCE COMPANY et al. Elnora H. DUGAS v. FAIR GROUNDS CORPORATION et al.
    No. 62665.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Josephine Tusa, wife of/and P. J. Rizzo, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Writ denied.


text:
    The CLOTHES CLOSET, INCORPORATED v. CORPORATE MALL, INCORPORATED.
    No. 62673.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: The Clothes Closet, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana ex rel. Irvin THOMAS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 62798.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Irvin Thomas applying for writ of certiorari and/or supervisory writs. Parish of Calcasieu.

Denied.


text:
    Mike WENDT v. CITY OF BOSSIER CITY.
    No. 62981.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Mike Wendt applying for use of plenary powers and exercise of authority and supervisory jurisdiction.

Writ denied: On the showing made, the writ and stay order is denied.


text:
    STATE of Louisiana ex rel. Edward James ARMSTEAD, Jr. v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 62599.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Edward James Armstead, Jr., applying for remedial writs of certiorari, mandamus and habeas corpus.

Denied. The applicant could have been charged as a multiple offender in spite of having satisfied the previous sentences; he was not a “1st offender”.


text:
    STATE of Louisiana ex rel. Robert FELTON, Jr. v. Matthew S. BRANIFF, Judge, (Section “B”) Criminal District Court, Parish of Orleans.
    No. 62602.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Robert Felton, Jr., applying for writ of mandamus. Parish of Orleans.

Writ denied. The mandamus application is moot since the district court decided the matter on July 31, 1978.


text:
    STATE of Louisiana ex rel. Donald Ray ROBINSON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, State of Louisiana, et al.
    No. 62608.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Donald Ray Robinson applying for writ of habeas corpus and certiorari. Parish of Bossier.

Writ denied.


text:
    STATE of Louisiana ex rel. Larry D. CALLOWAY v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, State of Louisiana, et al.
    No. 62609.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Larry D. Calloway applying for writs of habeas corpus and certiorari. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Allen ANDERSON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, State of Louisiana.
    No. 62612.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Allen Anderson applying for writs of habeas corpus and certiorari. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Otho LINNEAR v. Frank C. BLACKBURN, Warden.
    No. 62618.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Otho Linnear, applying for remedial writ.

Writ denied.


text:
    STATE of Louisiana ex rel. Tracy LEWIS and Jimmy Sykes v. Hayden J. DEES, Warden, Dixon Correctional Institute, C. Paul Phelps (Secretary), Louisiana Department of Corrections, et al.
    No. 62610.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Tracy Lewis and Jimmy Sykes, applying for writ of mandamus. Parish of East Baton Rouge.

Denied — wrong court.


text:
    STATE of Louisiana ex rel. Percy L. TATE v. Frank A. MARULLO, Jr., Judge, Criminal District Court, Parish of Orleans.
    No. 62611.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Percy L. Tate, applying for writ of mandamus. Parish of Orleans.

Writ denied.


text:
    Sidney KITCHEN, Jr. v. FONTENOT CONSTRUCTION CO.
    No. 62620.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Sidney Kitchen, Jr., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipa-hoa.

Writ denied.


text:
    Harry T. BEGG, III, et al. v. The ROMAN CATHOLIC CHURCH OF the ARCHDIOCESE OF NEW ORLEANS et al.
    No. 62621.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Harry T. Begg, III, etc., et al., applying for writs of certiorari, prohibition, and mandamus. Parish of Orleans.

Writ denied.


text:
    Do Sun PARK v. DEPARTMENT OF CORRECTIONS, Louisiana State Penitentiary.
    No. 62627.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Do Sun Park applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. Civil Service Commission.

Writ denied.


text:
    STATE of Louisiana v. David Russell ARDOIN.
    No. 62635.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: David Russell Ardoin applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Calcasieu.

Writ denied.


text:
    STATE of Louisiana ex rel. Robert Lee KNIGHTEN v. Hayden J. DEES, Warden/Dixon Corr. Inst., C. Paul Phelps, Secretary/La. Dept. Corr. & Inst., Jewel Williams, Record Custodian, D.C.I., et al.
    No. 62639.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Robert Lee Knighten applying for writs of certiorari, prohibition, mandamus and habeas corpus. Parish of East Baton Rouge.

Writ denied. Upon this review, we find no error was committed. We therefore deny the application, pretermitting whether an administrative “hearing” should have been held prior to the ex parte correction of the erroneous record of the relator’s discharge.


text:
    STATE of Louisiana ex rel. Chester R. STRICKLAND v. COURT REPORTER, Criminal District Court, Section “H”, Parish of Orleans.
    No. 62642.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Chester R. Strickland, applying for writs of habeas corpus, certiorari, prohibition and mandamus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Robert M. HALLAL v. SUPREME COURT OF LOUISIANA.
    No. 62640.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Robert M. Hallal, applying for remedial writ. Parish of Orleans.

Writ denied.


author: SANDERS, C. J., SUMMERS, J.

text:
    STATE of Louisiana v. David James MELANCON.
    No. 62563.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: David James Melancon, applying for remedial writs. Parish of Lafayette.

Writ granted. The order of the district court denying the withdrawal of the plea of guilty is reversed, and the case is remanded.'

SANDERS, C. J.,

dissents, being of the opinion the trial judge did not abuse his discretion.

SUMMERS, J.

Although I agree this writ should be granted, I cannot agree to the ex parte order setting aside the guilty plea without a hearing in this court.


text:
    STATE of Louisiana v. Douglas BURLESON.
    No. 62566.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: State of Louisiana, through Harry F. Connick, District Attorney, applying for writ of certiorari. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Kenneth L. JOHNSTON v. H. Garland PAVY, Judge, 27th Judicial District Court, Parish of St. Landry.
    No. 62739.
    Supreme Court of Louisiana.
    Sept. 2, 1978.
   In re: Kenneth L. Johnston applying for writ of mandamus. Parish of St. Landry.

Granted. It is ordered that a transcript of the habeas corpus proceeding be furnished to relator.


text:
    STATE of Louisiana v. Richard A. PASS.
    No. 62605.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Richard A. Pass applying for writ of habeas corpus. Parish of Orleans.

Not considered. Application has not been first filed in the district court.


author: JOHNSON, Judge.

text:
    Jimmie CARRIERE, Plaintiff-Appellant, v. PEE WEES’ EQUIPMENT CO., Defendant-Appellee.
    No. 6323.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 16, 1978.
    Morrow & Morrow, Patrick C. Morrow, Opelousas, for plaintiff-appellant.
    Louis E. Bernard, Lafayette, for defendant-appellee.
    Before GUIDRY, FORET and JOHNSON, JJ.
   JOHNSON, Judge.

This is an appeal from a judgment by the trial court granting to an employee judgment for his unpaid wages and court costs. The judgment denied the employee’s demands for attorney’s fees and statutory penalties. The judgment was signed on the 24th day of June, 1977, prior to the recent amendments of LSA-R.S. 23:631 and 23:632. These statutes were amended in the third regular session of the Louisiana Legislature held in 1977.

Jimmie Carriere, the plaintiff, worked as a repairman-mechanic, for the employer, Pee Wees’ Equipment Co., for a period of three months from July 8th to October 9th, 1974. He traveled to the premises of various customers during this period of time. He worked in the general area around Lafayette, as well as working at the place of business in Lafayette. Because of Carri-ere’s travel, he and Arnold Murray, owner and manager, made an arrangement whereby the employer loaned Carriere $200.00 with which to make a down payment on a pickup truck. The truck would be used by Carriere in his work. The company did pay him fifteen cents per mile for the use of the truck. The company was to withhold the truck payments until the debt was repaid.

Plaintiff walked off the job on October 9th, at noon, without saying anything to anyone in the company. According to the evidence, this was three or four days before pay day. Carriere went home. The company heard nothing further from him until Carriere’s wife, telephoned defendant’s bookkeeper, Mrs. Velma Snow, at the place of business in Lafayette and asked that the plaintiff’s check be mailed to him. This call was about a month after Carriere had quit his job.

Carriere’s unannounced leaving left a number of matters unresolved with the company. First, there was some jobs Carri-ere was working on which had not been finished. The company hoped that by talking to him they could persuade him to continue working or to continue in his employment until these jobs were finished. The company apparently was satisfied with Car-riere’s work. The evidence shows that they wanted him to continue working. Secondly, Carriere owed the company $200.00 which he had borrowed from them in order to make payment on the truck. The company wanted to see what arrangements Carri-ere wanted to make about this. Thirdly, the company had issued Carriere some work uniforms when he started working for them. He was supposed to turn in these work uniforms upon termination of his employment. Carriere’s testimony is to the effect that on the last day that he worked, he threw all of the uniforms into a pile at the employer’s place of business. The' evidence shows that the employer did not know this, even though this may have been true. The employer was under the impression that Carriere still had the ten uniforms which did not belong to the employer but belonged to a rental service. The employer was responsible for the return of these uniforms. The evidence shows that Mr. Murray saw Carriere at a distance some few weeks after Carriere had quit. When Mr. Murray saw Carriere, Carriere was wearing one of the rental uniforms. Fourthly, Car-riere owed some small amount of money to the company variously estimated by Carri-ere and the company bookkeeper at from $2.00 to $5.00.

Arnold Murray, the owner and manager of the company, testified that he was anxious for Carriere to come by the place of business so that he could discuss these various matters with him.

The testimony of Arnold Murray, and that of his bookkeeper and office manager, Velma Snow, (which testimony is uncontra-dicted), is that a check was written for the wages due to the plaintiff, Jimmie Carriere. This check was ready and available for delivery to Carriere at any time he came to the office for it. The evidence shows, and the plaintiff agrees, that he always got his check at the office. The evidence further shows that he never, at any time even up to the present date, went to the office to pick up his last check. The testimony of the bookkeeper is that some few months after the plaintiff quit, she requested of the owner that she be allowed to void the check in order to properly balance her books. The conversation between her and the owner, Arnold Murray, was that they could always write another check if Mr. Carriere came in. The evidence shows that the only contact that Carriere ever had with the office was his wife’s telephone call to have the check mailed.

The evidence shows that when plaintiff’s wife made this call, that Carriere, the plaintiff, posted himself close to the receiver of the telephone so that he could hear the incoming conversation as well as his wife’s conversation.

Subsequently, on April 17, 1975, some six months subsequent to the plaintiff’s quitting his job, suit was filed. The case was tried on the 18th day of May, 1977. Judgment was read and signed on the 24th day of June, 1977. It is admitted that to this date, plaintiff has never gone by the place of business to ask for his check.

The foregoing outlines the factual situation as we appreciate it and apparently as the trial judge found from the evidence. The trial court found that the telephone call by the wife of the plaintiff under these circumstances represented a proper demand under the law, LSA — R.S. 23:631, et seq., and rendered judgment in plaintiff’s favor for the amount of his unpaid wages. The trial court found that the employer had reasonable justification for withholding plaintiff’s check and declined to assess penalties and attorney’s fees. Plaintiff has appealed.

We pretermit any discussion of the trial court’s ruling with respect to proper demand being made herein. We do not find it necessary for us to consider the question of demand since we agree with the trial court’s judgment that the employer, under the circumstances here, was completely justified in his actions herein and thus not liable for penalties or attorney’s fees.

In the case of Becker v. Choate, 204 So.2d 680 (La.App. 3 Cir. 1967), this Court considered a case where there were a number of equitable considerations or defenses which the employer was entitled to claim so as to negative the assessment of penalties and attorney’s fees under the law. The Court in that case did award the amount of back wages due, after allowing a setoff against wages due, for the loss of the employer’s property caused by the employee’s fault.

In Colbert v. Mike-Baker Brick Company of New Iberia, Inc., 326 So.2d 900 (La.App. 3 Cir. 1976), a similar situation occurred wherein this Court reached the same result. In the Mike-Baker case, the employee twice caused damage to the company’s equipment. The Court did not find that this was through the employee’s fault. The Court states on page 904, and I quote:

“Although the issue of plaintiff’s negligence in damaging the Superlite is close, we are unable to find that defendant has proved by a preponderance of the evidence that plaintiff was negligent. Accordingly, we find plaintiff is entitled to recover the $36.30 withheld from his wages.
[8] However, we think defendant did have reasonable grounds to withhold the wages, and it was therefore not arbitrary or capricious so as to be subject to penalties and attorney’s fees. In Becker v. Choate, 204 So.2d 680 (3rd Cir. 1967), we stated the applicable law as follows:
‘ “While cases on this point generally state that R.S. 23:632 is subject to ‘equitable defenses’, we are of the opinion that the word ‘defenses’ does not mean a ‘defense’ in a strict sense of the word. Rather, the tenor of these cases seems to indicate that the court will refuse to assess penalties and attorneys’ fees where the facts of the particular case strongly indicate that greater justice will be attained by such refusal. These facts then become equitable consideration, or ‘defenses’ in a loose sense of the word, which will move the court to deny the penalties.” ’
“We find this case comes within the rule of Becker v. Choate, supra, and the cases cited therein. Defendant reasonably believed it was justified in withholding an amount from plaintiff’s wages. The ultimate realization that the action was improper does not prevent that action from constituting and ‘equitable defense’ in a suit for penalties and attorney’s fees.”

The Supreme Court has decided similarly in several cases. Strickland v. American Pitch Pine Export Co., 224 La. 949, 71 So.2d 338, (1954); Clevy v. O’Meara 236 La. 640, 108 So.2d 538 (1959); Mitchell v. First National Life Insurance Company, 236 La. 696, 109 So. 61, (1959). Admittedly, these cases deal with the law as it existed prior to the amendments of 1964. The only amendment relative to our decision herein, we feel, is a change from the wording in the defining of the word “suit” in R.S. 23:632. In the law in effect between 1936 and 1964 the pertinent part of the statute reads as follows:

“. . . . Reasonable attorneys’ fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a just suit be filed by the laborer or employee . . . .” (Emphasis by the court)

The law as amended in 1964 referring to the same portion reads as follows:

“. . . . Reasonable attorneys’ fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee . . . .” (Emphasis by the court)

A careful reading of the above referenced decisions by the Supreme Court convinces us that the Supreme Court would have reached the same results under the statute as it was amended in 1964 as they did with the statute in effect at the time the Supreme Court’s decisions were rendered. Undoubtedly, the Legislature had some purpose in mind in making the change in the law. Perhaps it was to make the law more precise. Whatever the legislative intent, it is our conclusion that the law, as enunciated by the Supreme Court in the above referenced decisions, is applicable to the facts of this case. We feel that the same result would be reached by the Supreme Court under the facts of this case.

For the above and foregoing reasons, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.

GUIDRY, J., concurs in the result.


author: COVINGTON, Judge.

text:
    Joan D. McLaughlin v. HOME INDEMNITY INSURANCE CO. et al.
    No. 12030.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    See also, La.App., 361 So.2d 1227.
    Andrew J. Bennett, Jr., Baton Rouge, for plaintiff-appellant.
    Joseph F. Keogh, Baton Rouge, for defendant-appellee White House Inn.
    Raymond Morgan Allen, Lafayette, for defendant-appellee Beaver Productions, Inc.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

This Court, on its own motion, found an apparent defect in the appeal taken herein, namely, that the appeal bond was not timely filed. Consequently, the parties hereto, in response to our show cause order, filed briefs directed to that issue.

All pertinent events occurred in 1977. The judgment was signed on June 24; on July 6 the plaintiff, Joan D. McLaughlin, deposited a motion for a new trial, with proper costs, in the office of the Clerk of Court. However, the motion was not marked “filed” until July 11, on which date it was signed by the Judge. On August 16, the motion was denied. The plaintiff obtained an order for a devolutive appeal on September 6 and filed the requisite bond on September 26, which was within the 60 day period prescribed by C.C.P. art. 2087 if we determine that the motion for a new trial was timely.

The motion was timely if it was filed within seven days, exclusive of holidays, after the date on which the judgment was signed, C.C.P. art. 1974. In computing the time, we find that June 24 was a Friday; June 25 and 26 and July 2 and 3 were Saturdays and Sundays; July 4 is a recognized legal holiday; thus, those five days are excluded. The seven judicial days were June 27, 28, 29 and 30 and July 1, 5 and 6.

Counsel for the appellant submitted his affidavit that he deposited the motion, and costs for filing same, with the Clerk’s office on July 6. This is corroborated by the date on the check and, also, to some extent by the affidavit of Lawrence D. Owens, a Deputy Clerk of Court, which states that the Clerk’s cash book reflects that the deposit was in fact advanced by the appellant on July 6. Also, his affidavit states that it was not a rare practice for the Clerk’s personnel to wait until a document, which required the signature of a Judge, was actually signed before it was marked “filed” by the Clerk or one of his deputies.

We conclude that the motion for a new trial was timely filed, since the pleading was “filed” when it was deposited with the Clerk’s office on July 6. The marking of it as being “filed”, and the date being designated, is mere evidence of the act of filing. Lambert v. Kelley, 270 So.2d 532 (La., 1972). Thus, the devolutive appeal was perfected timely.

Additionally, this result is supported by the longstanding policy of the law favoring appeals; Davidge v. Magliola, 346 So.2d 177 (La., 1977). The failure of the Clerk’s office to promptly record the pleading as “filed” on the date it was deposited, together with the proper costs, is not an “irregularity, error or defect” imputable to the appellant; C.C.P. art. 2161.

For the foregoing reasons, we find the appeal bond was filed timely and that this devolutive appeal was timely perfected. Therefore, we recall and vacate our rule to show cause why the appeal should not be dismissed, and hold that this Court has jurisdiction to consider said appeal.

RULE TO SHOW CAUSE RECALLED AND VACATED.


author: SARTAIN, Judge.

text:
    Joan D. McLaughlin, Plaintiff-Appellant, v. HOME INDEMNITY INSURANCE COMPANY et al., Defendants-Appellees.
    No. 12030.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.
    Rehearing Denied Aug. 31, 1978.
    Writ Refused Oct. 20, 1978.

      See also, La.App., 361 So.2d 1226.
    Andrew J. Bennett, Jr., Baton Rouge, of counsel for plaintiff-appellant Joan D. McLaughlin.
    City Parish Atty. Joseph F. Keogh, and J. Reginald Keogh, Baton Rouge, of counsel for defendant-appellee White House Inn, of Baton Rouge Inc. and Home Indemnity Ins. Co.
    Diana Simon, Lafayette, of counsel for defendant-appellee Beaver Productions, Inc.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

Plaintiff, Joan McLaughlin, in this slip and fall case appeals from an adverse judgment of the district court. We reverse.

Ms. McLaughlin was injured at a rock concert in Independence Hall in Baton Rouge on May 30,1974, when she slipped in a wet substance while descending a stairway. She brought this action against the owner-operator of the hall, White House Inn of Baton Rouge, Inc., its liability insurer, Home Indemnity Insurance Company, and the promoter of the concert, Beaver Productions, Inc.

The basic undisputed facts are: Independence Hall is arranged in a series of platforms which descend from the front entrance of the building to the main floor. Each of the two aisles contain three steps between the platforms. The concession stand, at which beer and soft drinks were being sold, is located on the main floor. The rest rooms are reached from the main floor. At this concert all tickets were general admission. Festival seating was in ef-feet on the main floor, that is, no chairs were provided, the audience sat on the floor. Chairs were, however, provided for those who wished to sit on the platforms.

Ms. McLaughlin arrived with a friend, Betty Saffard, and her brother, Sean McLaughlin, prior to the commencement of the concert. They proceeded down the right aisle to the main floor desiring to purchase refreshments at the concession stand. They found the concession stand very crowded and decided against attempting to make purchases at that time. They also attempted to reach the rest rooms but likewise found them overly crowded. Thereupon, they went back up the aisle and secured seats. During this period of time the main lights in the hall were functioning.

After the first band to play had stopped after approximately forty-five minutes, there was an intermission. The main lights were not turned on. Immediately after the band ceased playing plaintiff went down the aisle in an attempt to go to the rest room. Other people were rising and going down the aisle at this time. The only lights on at this time were the small lights on the steps, exit lights, and a light shining on the stage.

Because of the darkness plaintiff proceeded very slowly down the aisle. She stepped into something wet and slippery and fell onto the platform. As she attempted to right herself and proceed she slipped again. On this latter occasion she sustained the injury for which she now seeks to recover. A policeman came to her aid and she was taken to a nearby hospital.

The defendants as well as the plaintiff were aware that drinks were being consumed in the audience, that they were being placed on the floor, and that they were being spilled. Employees of White House Inn were assigned to mop up any spills reported to them but no one was assigned to inspect the stairs for spills or debris. The lighting panel was operated by an employee of White House Inn; however, he was working under the directions of Beaver Productions.

Based upon these facts the trial judge, for oral reasons assigned which are included in the record, held that plaintiff had failed. to prove any breach of duty owed to her by the defendants. He stated that at a rock concert a proprietor cannot be held to the same duty as that imposed upon the owner-operator of a food or department store. In the latter situation, he reasoned that a patron can anticipate a clear aisle or a floor free of foreign matter, that the duty there owed is to avoid the unexpected by eliminating any hazard which could or should be detected by reasonable inspection and cleanup procedures. Whereas, at a concert such as the one here conducted, the patron is not unlike a participant, that beverages are consumed and left at or near where they are consumed, that crowds get “a little out of hand” and darkness prevails because that is the way the patrons like it. He therefore concluded that he was “unable to find any particular thing that these defendants allowed to occur that created any hazard that was a surprise to or unknown to the plaintiff.”

We agree with the trial judge that the instant situation is not the same as the typical slip and fall case which generally arises out of an incident which occurs in a mercantile establishment. The question of reasonable inspection and cleanup procedure was the subject of a considerable portion of the testimony adduced during the course of the trial. Defendants had on hand some fourteen policemen, four firemen, and three “housemen.” We think it unreasonable to expect that these people would patrol the aisles with flashlights or otherwise engage in a routine inspection procedure during the course of the performance to the obvious displeasure and distraction of the patrons. Such would not be in keeping with the mood of the concert. This, however, does not totally eliminate any duty on the part of the defendants.

In Guilbeau v. Liberty Mutual Insurance Co., 338 So.2d 600, 602 (La.1976), the court stated:

“Actionable negligence results from the creation or maintenance of an unreasonable risk of injury to others. Smolinski v. Taulli, La., 276 So.2d 286 and authorities there cited. In determining whether the risk is unreasonable, not only the seriousness of the harm that may be caused is relevant, Allien v. Louisiana Power & Light Co., 202 So.2d 704 (La.App.3d Cir. 1967), certiorari denied, 251 La. 392, 204 So.2d 574 (1967), but also the likelihood that harm may be caused, Goff v. Carlino, 181 So.2d 426 (La.App.1965), certiorari denied, 248 La. 1033, 183 So.2d 653 (1966). See also: Restatement of Torts, Second, Sections 291-293 (1965).”

In applying the above rules to the facts in the instant case and particularly as they relate to the question of breach of duty, we find that the risk created by defendants’ failure to turn the lights on during the intermission was unreasonable. It is during this period of time that patrons are expected to move about either for the purpose of obtaining refreshments or to go to the rest rooms. The danger of someone slipping or falling is the prime risk to be guarded against. Precaution against such a risk is minimal to say the least, just simply turn the lights on.

On the question of contributory negligence we find that plaintiff acted reasonably. Her unrebutted testimony is that she was proceeding very slowly down the steps, feeling her way along. This being the only route available to her, we find no negligence on her part. Revon v. American Guaranty & Liability Insurance Company, 285 So.2d 354 (La.App. 4th Cir. 1973), amended on other grounds 296 So.2d 257 (La.1974); Perkins v. Springhill General Hospital, 278 So.2d 900 (La.App.2d Cir. 1973).

Lastly, defendants contend that plaintiff assumed the risk of falling when she elected to descend the stairs. In order for her to have assumed the risk, plaintiff must have knowingly and voluntarily encountered the risk which caused her injury. Prestenbach v. Sentry Insurance Co., 340 So.2d 1331 (La.1976). A subjective test is applied. Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971). We find that Ms. McLaughlin did not knowingly and voluntarily encounter the risk which caused her to fall. While she did admit to knowledge of the fact that fellow patrons, did spill their drinks, a closer review of the record satisfies us that this is an admission too general in nature to place her on notice of spilled drinks in the aisles and on the steps. She was proceeding in a very cautious manner not because of the possibility of liquid on the steps but because of the darkness.

As a result of her fall, plaintiff sustained a fracture of her right forearm just above the wrist. The injury was medically described as a fracture of the distal radius, with some non-displaced comminuted lines. The short cast initially applied had to be replaced with a long arm cast. The wrist remained immobile for some six weeks. Her recovery was very routine. The attending orthopedic specialist termed plaintiff’s recovery as “pretty good.” No residual impairment is anticipated.

For this injury, we think an award of $4,000.00 is appropriate. The sum of $227.40 for medical expenses is not disputed.

Accordingly, for the above reasons, the judgment of the district court is reversed and judgment is rendered herein in favor of plaintiff, Joan D. McLaughlin, and against the defendants, White House Inn of Baton Rouge, Inc., Beaver Productions, Inc., and Home Indemnity Insurance Company, in solido, in the full amount of $4227.40, together with legal interest thereon from date of judicial demand until paid, and for all costs of these proceedings, including the expert witness fee of Dr. Kenneth C. Cra-nor as set by the trial judge.

REVERSED AND RENDERED.

      . There is no evidence that those in attendance were in any way unruly.


author: CHIASSON, Judge.

text:
    R. J. GALLAGHER COMPANY v. LENT, INC.
    No. 12038.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    See also, La.App., 361 So.2d 1232.
    Stephen K. Peters, Baton Rouge, of counsel for defendant-appellant, Lent, Inc.
    Donald Smith, Baton Rouge, of counsel for plaintiff-appellee, R. J. Gallagher, Co.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

Arman V. Melikyan appealed a judgment of the trial court dismissing his motion to vacate a subpoena of him as president of the defendant corporation, Lent, Inc., issued pursuant to a motion by plaintiff, R. J. Gallagher Company, for a judgment debtor examination of defendant.

Plaintiff has filed a motion to dismiss Melikyan’s appeal contending that the trial court’s ruling was not a final judgment because it did not decide the case, wholly or partially, on the merits, nor did it settle any of the rights existing between the plaintiff, Gallagher, and the defendant, Lent, Inc. Therefore, it is asserted that the trial court’s ruling is the equivalent of an interlocutory order, not appealable unless there is a showing of irreparable injury. C.C.P. Arts. 1841 and 2083.

Plaintiff’s interpretation of the law is in error.

In the case of Berard v. American Employers Insurance Company, 246 So.2d 686 (La.App. 1st Cir. 1970), it was held that under Article 1841 the determination of discovery questions, as between the parties to a lawsuit, is a preliminary matter; consequently a judgment rendered with respect to such an issue is an interlocutory and not a final judgment. However, the determination of discovery questions as to one who is not a party to the case is a final judgment.

The same rationale is applicable to the instant case. Appellant was not a party to the lawsuit between Gallagher and Lent, Inc. The ruling of the trial court herein determined in whole the merits of the single issue between Gallagher and appellant, i. e., whether appellant, as an officer of the defendant corporation, could be subpoenaed to testify in the judgment debtor examination of the corporation. The trial court’s ruling denying appellant’s motion to vacate the subpoena issued to him was a final judgment as to appellant and therefore ap-pealable.

The motion to dismiss this appeal is denied; all costs incident thereto shall be paid by the plaintiff, R. J. Gallagher Company.

MOTION DENIED.


author: ELLIS, Judge.

text:
    R. J. GALLAGHER COMPANY v. LENT, INC.
    No. 12038.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.
    Rehearing Denied Aug. 31, 1978.
    Writ Refused Oct. 26, 1978.
    . See also, La.App., 361 So.2d 1231.
    Stephen K. Peters, Baton Rouge, of counsel for plaintiff-appellee R. J. Gallagher Co.
    Donald Smith, Baton Rouge, of counsel for defendant-appellant Lent, Inc.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge.

R. J. Gallagher Company, judgment creditor of Lent, Inc., a corporation, filed a motion to examine Lent as a judgment debtor, praying that Arman Melikyan, president of Lent, be ordered to appear on behalf of the corporation.

Mr. Melikyan filed a motion to vacate the subpoena on the ground that he is not the judgment debtor, and should not be required to appear on behalf of the corporate debtor. After a hearing on the latter motion, the trial court denied the motion to vacate the subpoena. From that judgment, Mr. Melikyan has perfected a suspensive appeal.

Article 2451 of the Code of Civil Procedure provides:

“In aid of execution the judgment creditor may examine the judgment debtor, his books, papers, or documents, upon any matter relating to his property, either as provided in Articles 1421 through 1515 or as provided in Articles 2452 through 2456.”

Mr. Melikyan argues that, since only the judgment debtor can be examined under the above provision, he cannot be compelled to testify about the affairs of the corporation.

The argument is without merit. Corporate debtors can testify only through their officers, and if we were to give effect to Mr. Melikyan’s argument, it would have the effect of exempting corporations from the provisions of Article 2451 et seq. of the Code of Civil Procedure. See Continental Supply Co. v. International Gas Products, 176 La. 1, 145 So. 119 (1932).

The judgment appealed from is affirmed. All costs are to be paid by defendant.

AFFIRMED.


author: STOULIG, Judge.

text:
    Roy J. La FLEUR v. Arthur SCHEINUK and General Accident Insurance Company.
    Nos. 9020, 9019.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Douglas J. St. Romain, New Orleans, for plaintiff-appellee.
    Monte J. Ducote, New Orleans, for General Accident Fire & Life Assurance Corp., Ltd., defendant-appellee.
    Philip S. Brooks, City Atty., Allen C. Hope, Jr., Asst. City Atty., New Orleans, for City of New Orleans, intervenor-appel-lant.
    Before GULOTTA, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

The City of New Orleans has appealed a summary judgment dismissing its intervention in Civil District Court Proceeding No. 597-814 entitled “Roy J. LaFleur v. Arthur Scheinuk and General Accident Insurance Company.” The incidental demand was filed seven days before plaintiff and defendants filed a joint motion to dismiss with prejudice the principal demand for damages which they had compromised. The City sought recognition of its privilege on damages recovered by LaFleur to the extent it had paid him workmen’s compensation benefits for injuries arising out of the incident upon which this suit is based.

We reverse. The petition for intervention was timely filed with leave of court as required by C.C.P. art. 1033 and service was effected on defendants on December 16 and 18, 1975 respectively. Obviously the litigants were aware of the City’s incidental demand for reimbursement before the joint motion to dismiss the main demand with prejudice was presented for the trial judge’s signature. When the order permitting intervention was signed there was no basis for concluding this action was improper or that its filing would retard the progress of the principal litigation.

The cases cited by appellees in support of the summary judgment are not applicable. In Compton v. North River Insurance Company, 281 So.2d 848 (La.App. 1st Cir. 1973), the claimant did not intervene in the employee’s action against the tort-feasor, but filed a separate suit to recover compensation benefits paid which conflicted with the expressed provisions of R.S. 23:1103 of the Louisiana Workmen’s Compensation Act.

The Supreme Court in National Surety Corp. v. Standard Accident Ins. Co., 247 La. 905, 175 So.2d 263 (1965), held that an employee’s petition of intervention to recover damages for personal injuries could be filed at any time during the pendency of a timely filed suit of the employer to recover compensation benefits paid provided it does not retard the progress of the principal action.

For the reasons assigned, the judgment appealed from is reversed and this matter is remanded for further proceedings.

REVERSED AND REMANDED.

      . Petition filed August 26, 1975. Intervention filed December 12, 1975. Joint motion to dismiss filed December 19, 1975.