author: SCHOTT, Judge. SAMUEL, Judge SAMUEL, Judge LEMMON, Judge STOULIG, Judge BOUT ALL, Judge

text:
    Doris C. FLECKINGER v. Mrs. Mae Anna Sendker Smith, wife of Leon M. SMITH, Deceased, et al.
    No. 6557.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 15, 1975.
    On Rehearing Oct. 9, 1975.
    Writ Refused Nov. 21, 1975.

      Ponder, Duke & Richardson, Metairie (John D. Ponder, Charles L. Duke and Lamar Richardson, Jr., Metairie), for plaintiff-appellant.
    Charles E. McHale, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, GULOTTA, SCHOTT, MORIAL and BEER, JJ.
   SCHOTT, Judge.

This case involves title to two lots in Bridgedale Subdivision in Jefferson Parish. Plaintiff brought suit to confirm and quiet her title in the form of a land patent issued by the State of Louisiana on September 20, 1957, and registered in the Parish Conveyance Office on October 30, 1957. Defendants are the widow and heirs of Leon Smith and the assigns of Jacob Koch as to their title to the lots. They answered claiming title by virtue of a sale from Mrs. Elizabeth Freida Sissung Koch to Mr. and Mrs. Leon Smith dated July 15, 1954, and a tax redemption certificate issued by the State of Louisiana to Jacob Koch and his assigns on December 13, 1954, registered in the Conveyance Office on December 14, 1954. Defendants also filed a reconventional demand praying that plaintiff’s patent be declared an absolute nullity and that she be enjoined from asserting any further interest in the property-

Both parties moved for judgment based on the pleadings, and after the submission of appropriate documents and oral argument, the trial court rendered judgment against the plaintiff cancelling her deed to the property and enjoining her from asserting any interest in the property. Plaintiff has appealed from that judgment.

The relevant facts are undisputed. In 1931 Jacob Koch acquired title to the two lots. On November 13, 1937, these lots were adjudicated to the State for nonpayment of 1936 state taxés assessed in Koch’s name. On October 13, 1939, the lots were again adjudicated to the State for nonpayment of 1938 state taxes, still assessed in Koch’s name. Koch died, and on July 12, 1954, a judgment of possession was rendered recognizing Mrs. Elizabeth Sissung Koch as the owner of the lots. Three days later, on July 15, 1954, Mrs. Koch sold the lots to Mr. and Mrs. Smith, the present defendants. Certificates were waived by the purchasers. On December 13, 1954, Smith effected the redemption of the property under the adjudication to the State of Louisiana for 1938 state taxes and was issued the certificate of redemption relied on by defendants.

Almost three years later, on July 17, 1957, plaintiff purchased the lots at a Sheriff’s Sale conducted pursuant to LSA-R.S. 47:2189 for the unpaid 1936 state taxes. On September 20, 1957, pursuant to the same statute, the State Land Office issued the patent sought by plaintiff to be confirmed in this suit.

In deciding the case for defendants the trial judge gave the following reasons :

“Plaintiff’s principal contention is that the second adjudication of the property to the state in 1939 was an absolute nullity in light of the fact that the property had already been adjudicated to the state in 1937. Thus, any redemption of the latter adjudication would also be without legal effect and the defendant’s claim to the property would therefore be inferior to that of the plaintiff’s, which is based upon a redemption of the earlier adjudication.
“This court believes that the law governing the issues in this case is set out most clearly in the case of Johnston v. Nanney, 244 La. 959, 155 So.2d 196 (1963).
“The Court, in Nanney (supra), was concerned with two adjudications of a piece of property to the state for nonpayment of taxes and the subsequent sale of that one piece of property to two different owners. In determining which redemption was valid, the court stated:
‘As was very aptly observed by the trial judge, at the time the redemption certificate was issued the State Land Office had a record and knew that the land had been adjudicated to the State for the unpaid taxes of 1930 and it is therefore charged with the knowledge that the second adjudication of the land to the State in 1932 was without effect, hence the only valid title the State had to these lands was the one made to it in 1931 for the unpaid taxes of 1930 and to release that claim it was only necessary to pay one year’s taxes under Act 47 of 1938, and when the redemption thereof was timely made, as it was here, then all subsequent taxes, including those for 1931 were waived. It necessarily follows then that the issuance of a certificate of redemption by the State Land Office in December, 1938, served to divest the State of such claim and title to the land as it possessed at the time, and the fact that the certificate referred to the taxes which were forfeited to the State in 1931 instead of 1930, in our opinion, does not make the redemption certificate invalid.’
“Based on the above holding, this court finds that the defendants and plaintiffs-in-reconvention are the true owners of the land by virtue of their redemption of the property in December of 1954, some three years before the plaintiff’s redemption. The Nanney decision makes it clear that the first party to redeem adjudicated property under the facts as presented in this case gains all of the state’s rights to that land. Thus even where the state, through a subsequent oversight, sells the same property to a third party, this will not serve to defeat the original redeemers claim. The fact that said redemption was for the unpaid taxes owed in 1938 rather than 1936 does not, according to Nanney (supra), lessen the claim of defendants to the land.”

We have concluded as did the trial judge that the cited case is controlling. There the property was adjudicated to the state in 1931 for 1930 taxes. The Supreme Court held that the redemption in 1938 for the 1931 taxes was valid and therefore a subsequent adjudication to Nanney in 1940 for the 1939 taxes assessed to and unpaid by the tax debtor conferred a valid title on Nanney. The Court held that a subsequent redemption to Johnston for the 1930 taxes was of no consequence and did not have the effect of conferring title on Johnston.

In the instant case, the property was adjudicated to the state in 1937 for 1936 taxes and again in 1939 for the 1938 state taxes. In 1954 the tax debtor’s assigns, defendants, redeemed the property under the adjudication to the state for the unpaid 1938 state taxes and were issued a patent pursuant to LSA-R.S. 47:2189. We have concluded that a valid title was conferred on defendants by virtue of the redemption under the adjudication for the 1938 taxes even though the 1936 taxes were still outstanding and that plaintiff did not acquire valid title when she paid the 1936 taxes and was issued a patent pursuant to the cited statute.

In reaching our conclusion we have considered whether there is such a distinction between Act 47 of 1938 under which the redemption in Johnston was effected, and LSA-R.S. 47:2224 under which the redemption in the instant case was effected which would warrant a different result in the instant case than the one in Johnston.

When these statutes are compared they are identical except that the earlier statute requires the tax debtor to pay only “the amount of the actual taxes for which said lots or lands were adjudicated to the State,” while the latter statute requires that the tax debtor pay “the taxes, interests and costs” in order to effect a redemption. Thus, when Johnston redeemed the property for 1931 taxes he was required to pay only that year’s taxes; and even had he applied for a redemption of the 1930 taxes also he would only have been required to pay the taxes for one year and not for all of the years intervening between 1930 and 1938 when his redemption was effected. As opposed to that situation, the tax debtor in the instant case was required to pay all taxes when he attempted to redeem the property for unpaid taxes of 1938. But in both instances the statute provided that once the redemption was issued “such certificate shall ... be held and taken as evidence of the redemption” of the property.

The Supreme Court’s language in Johnston that “at the time the redemption certificate was issued the State Land Office had a record and knezv that the land had been adjudicated to the State for the unpaid taxes of 1930 and it is therefore charged with the knowledge that the second adjudication of the land to the State in 1932 was without effect,” should be equally applicable to the defendants in the instant case. At the time the redemption certificate was issued the State Land office had a record and knew that the land had been adjudicated to the State for the unpaid taxes of 1936, and it is therefore charged with the knowledge that the second adjudication of the land to the State in 1938 was without effect.

The fact that the earlier statute required the payment of only one year’s taxes at the time of redemption is of no consequence in the application of the quoted language from Johnston. Johnston effectively redeemed his property under the 1932 adjudication by paying that amount which the legislature then required to be paid and this had the effect of effacing the adjudication for the 1930 taxes. Similarly, the defendants should be held to have effectively redeemed their property when they paid all that was required of them to effect a redemption for the 1938 taxes and that redemption should have effaced the adjudication for the 1936 taxes.

Moreover, in the present statute there is language which has the effect of making the holding in the Johnston case part and parcel of the legislative enactment under R.S. 47:2224. In this statute the following language is found which was not a part of Act 47 of 1938:

“. . . provided, however, that no such certificate of redemption shall be so issued to the person redeeming until and unless all state, parochial, district, and municipal taxes due on the property up to the date of redemption shall have first been paid; . . .”

When the defendants sought to redeem this property in 1954 they had a right to rely upon the last quoted language of the statute under which they were redeeming which places the duty upon the Register of the State Land office not to issue a certificate of redemption unless all of the taxes due on the property have been paid. They applied for the redemption, paid all taxes accruing on the property from 1938 to 1954 and were issued a redemption certificate by the Register of the State Land office. It is clear that the legislative intent in including the last quoted language of the statute was to charge the State with knowledge of any and all taxes which might be due on property before a redemption certificate is issued. It follows that defendants were entitled to rely on the fact that the Register was performing his duty in obedience to the statute.

Beyond peradventure of a doubt the Register in the instant case issued the redemption certificate to defendants in violation of the law which required that all taxes, including those due in 1936, be paid. Does this strike the redemption with invalidity or nullity? The statute does not say so although the legislature could have incorporated such language in the statute had this been the intent. We are loath to read so harsh a result into the statute by implication.

We are aware of the fact that there are conflicting and important interests to be protected in this case. On the one hand, this Court should preserve the integrity of titles to real estate so that a purchaser can identify the links of the chain in his title to the extent that every tax adjudication must be cancelled, redeemed or somehow effaced by a valid cancellation or redemption applicable to the particular year for which the property was adjudicated. In this case, when the defendants redeemed the property for 1938 taxes the chain of title demonstrated that the 1936 adjudication was still of record so that some duty was upon them to dispose of that adjudication as a condition for their acquiring a valid title.

On the other hand, the law favors tax redemptions and in every case equitable considerations exist in favor of the tax debtor who attempts to redeem his property. But this is especially so in the instant case where the defendants attempted to redeem the property under an act which charged the Register of State Land office who issued the tax redemption certificate to the defendants with an absolute prohibition against him from issuing such a certificate unless all previous taxes had been paid. It would be manifestly unjust to penalize the defendants because the Register of the State Land office failed to perform his duty and to reward the plaintiff for taking advantage of that failure on the part of the Register.

Under R.S. 47:2189 it was plaintiff who initiated the procedure leading to the issuance of her patent. When she did so defendants’ redemption certificate was already on the public records for three years. She should not be permitted to take advantage of the Register’s dereliction in issuing that redemption certificate. The latter should be conclusively presumed valid and the Register made to pay the two years’ unpaid taxes.

Having concluded that the defendants’ redemption was valid it becomes necessary to consider plaintiff’s contention that her patent is protected from attack by LSA-R.S. 9:5661 providing a six-year prescriptive period against such an attack.

In California Co. v. Price, 225 La. 706, 74 So.2d 1, it was said that the purpose of this prescription statute “was to stabilize titles issued by the State ... in cases wherein the State and other interested parties failed to contest the patents within a stated time.” It has been said that the intended function of the statute is that of “a statute of repose.” See A. N. Yianno-poulos, Validity of Patents Conveying Navigable Water Bottoms — Act 62 of 1912, Price, Carter And All That, 32 La.L.Rev. 1.

We have concluded that defendants effectively redeemed their property and this was a matter of public record. To hold that a patent issued three years later by the State on defendants’ property would work the opposite result from stabilizing titles or providing repose. It would create turmoil. Any record owner of immovable property could have his title taken away if the State erroneously issued a patent on his property to a third party and six years elapsed thereafter. If the prescription argument of plaintiff were valid it would behoove every owner of real estate in Louisiana to check the conveyance records every six years to guard against loss of title through erroneous issuance of a patent. The absurdity of such a result disposes of the contention.

The judgment appealed from is affirmed at plaintiff’s cost.

Affirmed

SAMUEL, J., dissents with written reasons.

GULOTTA, J., dissents for reasons assigned by SAMUEL, J.

SAMUEL, Judge

(dissents).

To reach a conclusion in this matter we are required to determine the present status of a portion of the law relative to immovable property and title thereto, an area in which this court scrupulously must follow the jurisprudence of the Supreme Court of Louisiana. Although there is a line of Supreme Court decisions directly contrary to the holding of the majority here, the majority’s conclusion is based solely on some language contained in Johnston v. Nanney, 244 La. 959, 155 So.2d 196, which they apparently feel overrules that line of previous cases. I am of the opinion that the majority misconstrues the holding in Johnston, that Johnston is an exception to, and does not overrule, the prior jurisprudence, and that the majority opinion and decree not only do not follow but are directly contrary to the present jurisprudence of the Supreme Court.

The general rule established by the jurisprudence prior to Johnston is that once the state has adjudicated immovable property to itself for unpaid taxes and that property is not redeemed, a second adjudication of the same property from the same owner to the state for taxes for a subsequent year is an absolute nullity; a purchaser from the state under such a second adjudication acquires no title to the property involved; and a redemption under that second adjudication is without effect, i. e., it does not deprive the state of the right to transfer title to a third person by virtue of the previous valid and unredeemed tax adjudication, because redemption of a null tax adjudication is itself a nullity. This rule has been stated and restated by our Supreme Court and our Courts of Appeal on innumerable occasions.

In the case now before us the lots were acquired by Jacob Koch in 1931. On November 13, 1937 they were adjudicated to the state for unpaid 1936 taxes assessed in Koch’s name. On October 13, 1939 the lots again were adjudicated to the state, this time for unpaid 1938 taxes, the property still being assessed in the name of Koch. Koch died, and on July 12, 1954 a judgment of possession recognized his widow as owner of the lots. Three days later, on July 15, 1954, Mrs. Koch sold the lots to Mr. and Mrs. Smith. Mrs. Smith and the heirs of Mr. Smith are the present defendants.

On December 13, 1954, the Smiths redeemed the property under the 1939 adjudication for 1938 taxes and obtained a certificate of redemption in the name of Koch and his assigns. Almost three years later, on July 17, 1957, plaintiff purchased the same lots, by sheriff’s sale pursuant to LSA-R.S. 47:2189, under the 1937 adjudication for 1936 taxes. On September 20, 1957 the State Land Office issued a patent to plaintiff in accordance with LSA-R.S. 47:2189.

If the general rule is applied to the above facts, it is clear the redemption by the Smiths under the 1939 adjudication for 1938 taxes was without effect. Because the same property previously had been adjudicated to the state for 1936 taxes, the 1939 adjudication was an absolute nullity which conveyed nothing to the state and therefore there was nothing which could be redeemed under that 1939 adjudication.

With one important exception, the pertinent facts in Johnston are similar to the present case. In Johnston there were two adjudications from the same owner of the same property to the state for non-payment of taxes for different years, 1930 and 1931, with a redemption, in 1938, to the tax debt- or under the second adjudication and a later sale, in 1940, by the state to the third party, Nanney.

The exception referred to is that in Johnston the property was redeemed under Act 47 of 1938, a tax debtor relief statute, while the redemption in the instant case was effected under Act 170 of 1898, as amended (LSA-R.S. 47:2224). There was rio tax debtor relief statute in existence when the 1954 redemption was effected by the Smiths. The differences between the two statutes were material to the conclusion in Johnston.

Act 47 of 1938 was a depression measure which afforded tax debtors the extraordinary relief of allowing them to release their property from tax adjudication for all delinquent years by the payment of only one year’s taxes, those due for the year of adjudication. That statute was specific and limited in time, the relief thereof expiring at noon on December 31, 1938, an expiration occurring subsequent to the 1938 redemption in Johnston. In addition to its humanitarian purposes, it also had the effect of placing property back on the tax rolls, thereby increasing state revenues, at a time when much of the adjudicated property might not have been redeemed due to the depression.

Act 170 of 1898, as amended, under which the redemption in the present case was effected, requires for redemption payment of “all state, parochial, district, and municipal taxes due on the property up to the date of redemption”. In this case such taxes were not paid by the defendants for the years 1936 and 1937.

The trial court and the majority here construe Johnston to mean essentially that, under facts such as these, a tax debtor who redeems adjudicated property receives all of the state’s right to the land, i. e., a redemption under the second adjudication has the effect of effacing both adjudications and restoring title to its pre-adjudication status, merely by virtue of his redeeming the property prior to its sale by the state to a third person, and regardless of whether the redemption is under a debt- or relief statute, as in Johnston, or as in the instant case, under Act 170 of 1898, as amended. This construction is not in accordance with Johnston as shown by the opinion in that case, wherein the. court said:

“We recognize the jurisprudence is replete with decisions of this Court holding that when property has been adjudicated to the State under Sec. 53 of Act 170 of 1898, as amended, and not redeemed in the time and manner provided by law, the tax officials of the State are without power to assess and sell it as belonging to the former owner or any other person or entity. The question for our determination here, therefore, is what effect we must give to the certificate of redemption issued by the Register of the State Land Office in conformity with the mandatory duty imposed by Act 47 of 1938 upon the payment of taxes due for the year of adjudication” .

This quoted statement expresses the issue the court considered in Johnston as clearly as I can conceive that issue could be expressed. In effect, the court said it recognized its prior jurisprudence relative to the established rule under Act 170 of 1898, as amended, the rule already mentioned and discussed in this dissenting opinion. The court made no attempt to change that established rule; rather, it accepted the rule. The issue presented was what effect, if any, the rule had upon a redemption effected under Act 47 of 1938, the debtor relief statute. It concluded the rule was not applicable to Act 47 of 1938 and limited its consideration and its holding to a redemption under that act. The most important consideration in Johnston appears to have been that since the payment of one year’s taxes under Act 47 of 1938, if timely made, would release the tax debtor from liability for all other taxes due on the property, it was actually immaterial whether the 1930 or the 1931 taxes had been paid. In either case the amount paid would be approximately the same, and in either case the intent and purposes of the act would be fulfilled. This, of course, is not true under Act 170 of 1898, as amended.

In this connection, it is pertinent to note: (1) the established jurisprudence referred to in the quoted statement is the same as that mentioned in the preceding page of the opinion, the cases cited in support of the rule of nullity being largely the same as those cited in footnote one of this dissenting opinion; (2) although the court easily could have overruled the prior cases which established, recognized and applied the aforesaid jurisprudential rule, it did not do so and it appears clear that if the court intended to overrule such a line of established jurisprudence, it certainly would have done so without equivocation; and (3) after setting forth the facts, the contentions, and the statement hereinabove quoted, the opinion devotes itself exclusively to a consideration of Act 47 of 1938 and its purpose, concluding with a reliance on Act 256 of 1940 (LSA-R.S. 41:1326) which specifically ratified, validated and confirmed all certificates of redemption under the debtor relief statutes, including Act 47 of 1938, unless attacked within six months from July 31, 1940 (the attack in Johnston was years subsequent to 1940).

Thus, Johnston restricts itself and its holding to the debtor relief statutes, particularly Act 47 of 1938, and in no way affects the viability of the established rule relative to redemptions made under Act 170 of 1898 and its amendments. The redemption in the instant case having been made under Act 170 of 1898, as amended the general rule is applicable here.

I feel it proper to make these additional comments:

1) In its opinion the majority here states there is language in LSA-R.S. 47:2224 (Act 170 of 1898, as amended) which has the effect of making the holding in Johnston part and parcel of that statute. The language referred to is quoted and reads:

“ . . . provided, however, that no such certificate of redemption shall be so issued to the person redeeming until and unless all state, parochial, district, and municipal taxes due on the property up„ to the date of redemption shall have first been paid; . . , ”

It is interesting to note that this same language was contained in the original Act 170 of 1-898 and has continuously remained in the act, as amended. Thus, it was a part of the law when the cases establishing the general rule were decided.

2) In the face of the fact that the Johnston case restricts itself to the debtor relief statute as an exception to the general rule, and does not change the general rule, the use of some language in Johnston, which could be transposed out of context and thus made to apply to this case, is immaterial.

3) The majority here also states: “ . . . the defendants should be held to have effectively redeemed their property when they paid all that was required of them to effect a redemption for the 1938 taxes and that redemption should have effaced the adjudication for the 1936 taxes.” The basic fallacy therein is that the majority bases its decision on what it deems “should be” rather than what actually is. I know of no authority supporting the statement.

For the reasons assigned, I respectfully dissent.

GULOTTA, J., dissents for reasons assigned by SAMUEL, J.

Before SAMUEL, REDMANN, LEM-MON, GULOTTA, STOULIG, BOU-TALL, SCHOTT, MORIAL and BEER, JJ-

ON REHEARING

We granted a rehearing in this matter and submitted it to the Court en banc pursuant to one of our internal rules because of an apparent conflict between our original opinion and the previous decision of this Court, McCarthy v. Gonnet, 163 So.2d 840 (La.App. 4th Cir. 1964).

We note that in Pellegrini v. McCarthy, 175 So.2d 410 (La.App. 4th Cir. 1965), this Court was confronted with a sequel to McCarthy v. Gonnet when one of the defendants in the first McCarthy case launched an attack on McCarthy’s title and was met with an exception of res ju-dicata. While this Court affirmed the judgment of the trial court maintaining the exception, the following was said:

“In Johnston v. Nanney, [244 La. 959, 155 So.2d 196] supra, as in the instant case, there were two successive adjudications to the State, one for 1930, and the other for 1931 taxes. The defendant obtained a redemption certificate stating that the 1931 taxes had been paid. It was argued that, as the second adjudication was null, the redemption certificate was null. However, the Supreme Court held that the State was charged with knowledge of the prior adjudication, and that the redemption certificate was not null simply because it stated the taxes were paid for 1931 instead of 1930. Mrs. Pelle-grini’s redemption certificate was declared null because she redeemed for the 1932 instead of 1931 taxes; this result probably would not have been reached under Johnston v. Nanney.”

From the foregoing it appears that McCarthy v. Gonnet has already been impliedly overruled. There is, as far as we can find, no other Louisiana case holding that a redemption from the state while the state still held title was null. We have not even found obiter dictum asserting such nullity. We thus know of no authority supporting any other result than that the principles of Johnston v. Nanney control, and we therefore now expressly overrule McCarthy v. Gonnet.

We also note that McCarthy v. Gonnet is, on the question of applicability of the six-year statute of repose, inconsistent with the Supreme Court’s earlier Chapman-Storm Lbr. Co. v. Board of Com’rs., 196 La. 1039, 200 So. 455, which supports our original opinion on this question.

Accordingly, our original opinion and decree are reinstated and the judgment of the trial court is affirmed at plaintiff’s cost.

Affirmed.

SAMUEL, Judge

(dissenting).

On rehearing the majority reasserts its position that Johnston v. Nanney is controlling and quotes from Pellegrini v. McCarthy for the purpose of showing McCarthy v. Gonnet has been impliedly overruled, thus apparently suggesting Pellegrini as an added reason why Johnston is controlling here. The concurring opinions consider the redemption here requires a different conclusion than that reached in those cited cases which are based on tax sales to third parties. I cannot agree with these positions as they affect this court’s authority to change the Supreme Court jurisprudence involving title to immovable property.

Whether or not Johnston v. Nanney is controlling has been discussed in my original dissent and that discussion need not be repeated. Insofar as Pellegrini v. McCarthy is concerned, it is not surprising that Johnston would have been controlling in McCarthy v. Gonnet if Johnston has been called to the court’s attention. Johnston and McCarthy are factually indistinguishable. Both involve tax adjudications for the same years and redemptions under the same debtor relief statute, Act 47 of 1938, permitting redemption by the payment of only one year’s taxes.

Insofar as may affect the conclusion here, I cannot see any logical difference between redemption and tax sale to a third party. Under the jurisprudential rule stated and restated by the Supreme Court, once the state has adjudicated immovable property to itself for unpaid taxes and that property is not redeemed, a second adjudication of the same property from the same owner to the state for taxes for a subsequent year is an absolute nullity. Since the second adjudication is an absolute nullity, and this is the ground on which the cited cases hold the subsequent sale null, I can see no difference in result between a sale under such a second adjudication and a redemption under such a second adjudication. As the second adjudication is an absolute nullity, both the sale and the redemption also are nullities.

It should be noted that the holding in Johnston is not based on a difference between a tax sale to a third party and a redemption. As the Johnston opinion does not consider or even mention such a difference, it appears to me the Johnston court must have felt the general rule was applicable to both. It follows that a change in the rule properly can be made only by the legislature or by the Supreme Court itself.

For these reasons, and for the reasons contained in my original dissent, I again respectfully dissent.

LEMMON, Judge

(assigns additional concurring reasons).

I subscribe to the majority opinion, but add the following reasons for overruling McCarthy v. Gonnet, supra, which in my opinion was an unjustified extension of the rule of law that a second tax adjudication is null while the State is holding title to the property by virtue of an earlier adjudication.

Clearly, the 1939 tax sale to the State (which was holding title to the property by virtue of the 1937 tax sale) was a nullity. The critical issue is whether the 1954 redemption certificate issued by the State was also "null because the certificate erroneously referred to the 1939 (rather than the 1937) tax sale as its acquisition source, technically leaving unredeemed the 1937 tax sale.

None of the cases cited in McCarthy v. Gonnet or in the dissenting opinion on original hearing in this case involved the factual situation or the issue presented here. Winn Parish Bank v. White Sulphur Lumber Co., 133 La. 282, 62 So. 907 (1913); Board of Commissioners v. Concordia Land & Timber Co., 141 La. 247, 74 So. 921 (1917); Neal v. Pitre, 142 La. 737, 77 So. 582 (1918), and Waterman v. Tidewater Assoc. Oil Co., 213 La. 588, 35 So.2d 225 (1947), the only Supreme Court cases cited in support of following McCarthy v. Gon-net, each involved a tax sale to a third party while the State was holding title to the property under an earlier adjudication. Thus, there was no issue as to the validity of a redemption from the State while the State was holding property after two adjudications to the State, the later adjudication being clearly invalid.

The only cited case with the same factual situation as the present case is McCarthy v. Gonnet, which ignored Johnston v. Nanney, supra, although that Supreme Court decision also involved the identical factual situation. Thus, unless Johnston v. Nanney can be distinguished, McCarthy v. Gonnet must be overruled.

I subscribe to the disposition in the majority opinion on original hearing of the insubstantial (although different) fact that the redemption in Johnston v. Nanney was under Act 47 of 1938 while the present redemption was effected pursuant to R.S. 47:2224. But even if Johnston v. Nanney could be validly distinguished, then no Supreme Court cases involving the present factual situation have been cited, and I would vote to overrule McCarthy v. Gonnet for the following reasons.

When a person whose property has been adjudicated to the State for nonpayment of taxes requests a redemption, it is encum-bent upon the State to inform the tax debtor of the correct amount of taxes due for any and all outstanding tax sales and to collect that amount. Furthermore, when the State issues a redemption certificate, that document implicitly covers all existing tax adjudications to the State and is a “full and complete redemption of such lands”. R.S. 47:2224. The validity of a redemption should not be affected by the State’s error in incorrectly referring in the certificate to an invalid tax sale rather than correctly referring to the valid sale which vested title in the State. Neither should the redemption be affected because amount due to an error by the State of-the tax debtor paid less than the proper ficial.

The present case involves another conflict between rule and reason. A technical rule could be established placing the burden on the tax debtor to determine which of several adjudications to the State was the valid one and requiring that he redeem property from the State at the risk that the redemption certificate may refer to an invalid tax sale or contain other inaccuracies, or that the state official may collect less than the proper amount of back taxes. But such a rule has no reasonable basis. Too often courts attempt to formulate rules without regard to reason, and in such cases the cause of justice is the inevitable loser.

The reason and purpose for tax sales is to insure that the State will collect ad valorem taxes. That purpose was fulfilled in the present case when the tax debtor redeemed the property in 1954, although the State perhaps lost two years of taxes due to its own error.

It is definitely not the purpose of tax sales to deprive the landowner of his property when he innocently requests a redemption from the State and in good faith pays the full amount of taxes the State official informs him is due in order to effect the redemption. It would be manifestly unjust in this case to hold that the 1937 tax sale technically was not redeemed, when both the State and the tax debtor intended that all unpaid taxes were being paid and that the tax debtor was being restored to full ownership of the property. And this type of injustice would be compounded by awarding titles to persons who comb the Register’s record and prey on such technicalities to “buy” property which has obviously not been forfeited or abandoned.

As to R.S. 9:5661, that prescriptive statute designed to prevent untimely attacks on patents issued by the State implicitly applies only when the State had valid title at the time the patent was issued. Any contrary interpretation would be ridiculous. .

GULOTTA, Judge, dissents for the reasons assigned by SAMUEL, J.

STOULIG, Judge

(dissenting).

I dissent for the reasons assigned in the dissent of SAMUEL, J.

COURT EN BANC

BOUT ALL, Judge

(concurring):

In view of the factual situation in this case, I agree with the result of the majority opinion. When there is a second tax adjudication for unpaid taxes while the State has title because of a prior tax adjudication, the second adjudication is obviously null. However, the question here is the validity of the redemption. In this case the original owner sought to redeem the property under the provisions of R.S. 47:2224, and for some reason, only the taxes, etc., due under the second tax adjudication were paid. Despite the prohibition that a redemption certificate could not issue unless all taxes were paid, the Register of the State Land office issued a redemption certificate.

I call attention to the following two paragraphs of LSA-R.S. 47:2224:

“All certificates of redemption issued in the name of the original owner to inure to the benefit of all persons holding rights under such owner to any lots or lands bid in for and adjudicated to the state and issued by the auditor or Register of the State Land Office twelve months or more after the day the act or tax deed to the state was filed for record in the conveyance office are valid and binding upon the state.
“All certificates of redemption of lands issued by the Register of the State Land Office, the title of which lands, at the time the certificate issued, was in the name of the state or in that of any of its political subdivisions, which certificates of redemption are otherwise issued in compliance with the provisions of this section shall, if duly recorded in the office of the recorder of mortgages of the parish wherein said lands are situated, be held and taken as evidence of the full and complete redemption of such lands, and as legal and valid.”

I note there are distinctions between the two paragraphs, but conclude that the first fits the facts of this case and the redemption is “valid and binding upon the state.” Thereafter the state has no authority to otherwise dispose of the property, and the subsequent sale to appellant is null.

      . Waterman v. Tidewater Associated Oil Co., 213 La. 588, 35 So.2d 225; Neal v. Pitre, 142 La. 737, 77 So. 582; Board of Commissioners v. Concordia Land & Timber Co., 141 La. 247, 74 So. 921; Winn Parish Bank v. White Sulphur Lumber Co., 133 La. 282, 62 So. 907; Piper v. Eager, La.App., 269 So.2d 619; Wilkie v. Cox, La.App., 222 So.2d 85; Pellegrini v. McCarthy, La.App., 175 So.2d 410; McCarthy v. Gonnet, La.App., 163 So.2d 840; Helis’ Estate v. Hoth, La.App., 150 So.2d 106; Boagni’s Heirs v. Thornton, La.App., 132 So.2d 494; Thomas v. Bomer-Blanks Lumber Co., La.App., 105 So.2d 299; Johnson v. Chapman, La.App., 179 So. 466, reversed on other grounds, 190 La. 1034, 183 So. 285.

      . Johnston v. Nanney, at 244 La. 965, 155 So.2d 198.

      . REDMANN, X, does not join in the original years’ unpaid taxes. assertion that the Register should pay the two

      . Arguably, the State reserved the right to also collect these taxes by the language contained in the redemption certificate.


source: Caselaw Access Project

author: MTLLER, Judge.

license: Public Domain

text:
    Ben V. BRADFORD, Plaintiff-Appellee, v. BREWTON BUTANE COMPANY, INC., et al., Defendants-Appellants.
    No. 5148.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.

      Gold, Hall, Hammill & Little, by John F. Simon, Alexandria, for defendants-appellants.
    Reeves, Lossin & Owens, by Jack F. Owens, Jr., Harrisonburg, for plaintiff-ap-pellee.
    Before HOOD, CULPEPPER, and MILLER, JJ.
   MTLLER, Judge.

Defendants Brewton Butane Company, Inc., its employees Johnny Evans and Vernon Evans, and their insurer Pan American Fire & Casualty Company appeal the judgment awarding $5,728.41 to plaintiff Ben V. Bradford for personal injuries. Defendant Pan American also appeals the judgment rejecting its reconventional demand against Ben V. Bradford for injuries suffered by the Books who assigned their claim against Bradford to Pan American. Bradford answered the appeal seeking an increase in the award. We affirm.

As part of his gasoline station, bait stand, ice plant, and grocery business, Bradford operated an L.P. Gas bottle filling station. He had a 1000 gallon storage tank together with a pump and hose apparatus through which low pressure gas was transferred to small cylinders (bottles) brought in by customers. The plant is owned and maintained by defendant Brew-ton.

At an undetermined time, but within a year preceding the accident, the toggle switch on the electric pump broke. Bradford called Brewton’s supervisor to report the difficulty and was told they would take care of the problem. Brewton sent its licensed electrician Johnny Evans to replace the switch with a new type push button switch. They did not have a vapor proof coverplate but ordered one. Somehow the coverplate was forgotten and never installed. Brewton’s supervisor and employees knew this created a dangerous situation but did not inform Bradford of the danger.

Bradford learned by telephone from Brewton’s supervisor that the switch had been repaired and the system was ready for operation. He used the repaired system for a substantial period of time before this accident.

On October 8, 1973 Mr. and Mrs. Book brought a five gallon butane bottle to be filled. After determining when the bottle was full by watching the gas escaping from the overflow vent Bradford touched the off button to turn off the pump. When he touched the off button, the accumulated vapor exploded. Both .parties argue the accumulated vapor was ignited by a spark from the faulty switch located on the electric pump which was itself at ground level.

Bradford suffered second degree burns over his arms and face; Mr. Book suffered a slight burn on the top of one foot; and Mrs. Book was injured while running from the scene. Pan American settled with the Books and took an assignment of their claims against Bradford.

The trial judge’s finding that Johnny Evans was negligent in leaving the switch in a dangerous condition without informing Bradford is not contested. Likewise, defendants do not contest imputation of that negligence to Brewton and by contract to Pan American.

Defendant Vernon Evans contends he should not be cast in judgment — that he did not take part in making the repairs. There is contradicted evidence to support his contention. However, it is uncontested that Vernon and Johnny discussed the dangerous defect and Vernon did not inform Bradford even though he knew of the defect and danger. Tr. 128, 138. Appellants failed to establish manifest error in the trial court’s ruling that Vernon Evans’ negligence was a legal cause of this accident.

The trial court’s rejection of defendants’ claim that Bradford was negligent is the main issue presented by this appeal. Defendants contend Bradford’s contributory negligence bars his recovery, and Pan American presses its assigned claim against Bradford (for damages Pan American paid to the Books) based on Bradford’s alleged negligence.

The parties agree the issue turns on whether Bradford knew or should have known at the time of the accident that the new electric switch presented a dangerous condition. Bradford had been in the low pressure gas business for some twenty years and knew gas accumulated in low areas. He knew a spark would cause an explosion and that switches used on this electric pump (which was located near the ground) should not give off sparks.

Defendants introduced the pump and switch in evidence together with numerous photographs. They point to the ready visibility of the bolts and empty spaces surrounding the push buttons indicating absence of a coverplate, and contend it is obvious the switch was not vapor proof.

Bradford acknowledged he was aware that Brewton had changed the switch from a toggle to a push button switch. The precise issue is whether a man of Bradford’s background and training should have realized the push button switch needed a special vapor guard. Should he have known the absence of a coverplate for the push button switch (which was new to him) presented a dangerous condition. In making this determination, it must be remembered Brewton was the expert in the business and its employees, licensed electricians, made the installation in Bradford’s absence and without advising the condition was dangerous. Bradford justifiably relied on Brewton’s supervisor’s statement the switch had been repaired.

The trial court held Bradford did not have “such knowledge of this particular defect as would make him contributorily negligent . . . .” Testimony of defendant Johnny Evans supports this finding. He testified both push button and lever switches are employed in the business. There is nothing to suggest Bradford should have known the new push button type switch required a special cover-plate. Brewton’s employees did not explain this fact although they possessed that knowledge. There is nothing to suggest the switch presented a problem during the several months Brewton negligently permitted Bradford to use it to sell Brewton’s L.P. Gas. Neither is there evidence to suggest Bradford had a duty to get an electrician to inspect Brewton’s electrical installation. Bradford does not have training as an electrician. Appellants again failed to establish manifest error in the trial court’s factual determination.

Defendants also contend Bradford was negligent in not filling the bottle by weight rather than depending on the vent to determine when the container was full. Scales are required by rules of the L.P. Gas Commission. Considering the context of the rule regarding filling by weight which applies to bottles, rules governing the thickness and strength of cylinder walls and requiring safety release valves and the like, the danger contemplated by these rules is the failure of cylinders due to over filling which might cause the container to burst or leak. Violation of the rule would be negligence per se if the harm intended to be prevented had occurred. Wright v. Travelers Insurance Company, 288 So.2d 374 (La.App. 4 Cir. 1974). Here it is only a factor to be considered.

The record establishes it is common practice in the industry for dealers to watch the vent tube rather than scales to determine when the bottle is filled. State inspectors of these systems never attempted to prevent dealers from using bleeder valves to assist in determining when five gallon bottles were filled. While this would not excuse a violation of the rules requiring scales, this is a factor to consider in determining the meaning of the rule.

Although the issue of Bradford’s negligence is a close question which might well have gone the other way, there is no manifest error in the trial judge’s finding Bradford free from negligence.

On the issue of quantum, defendants object to the admission of Bradford’s $728.41 in medical bills after evidence was closed. LSA-C.C.P. arts. 1631 and 1632 give discretion to the trial judge to control the order of trial and procedure in the interest of justice. This is particularly true where the omission is inadvertent and there is no showing of prejudice to the opposing party. Here defendants had an opportunity to contest the bills at the hearing on the rule.

It is within the sound discretion of the court to allow testimony after both parties have closed their cases. LSA-C.C. P. art. 1632. Official Revision Comments (b). Defendants have not shown an abuse of that discretion.

Our review of the $5,000 awarded in damages for Bradford’s personal injuries is limited. That such evidence might also support a greater or smaller award will not justify a change. Bitoun v. Landry, 302 So.2d 278 (La.1974). Cases cited by the parties show greater and lesser awards for similar injuries, but no principle requiring a change in this award.

The judgment is affirmed at appellant’s costs.

Affirmed.


author: SANDERS, Chief Justice. CALOGERO, Justice

text:
    STATE of Louisiana v. Mary J. COMEAUX.
    No. 56353.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Rehearing Denied Oct. 31, 1975.

      Murphy W. Bell, Director, Larry D. Book, Trial Atty., Roland T. Huson, III, Appellate Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., David M. Miller, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged Mary J. Comeaux with cruelty to a juvenile in violation of LSA-R.S. 14:93, based upon the mistreatment of her five-year-old daughter. After trial, the jury returned a verdict of guilty. The trial judge suspended the imposition of sentence and placed the defendant on probation for a period of two years. She appeals, relying upon four assignments of error to reverse her conviction.

ASSIGNMENT OF ERROR NO. 1

Defendant asserts that LSA-R.S. 14:93, the statute under which she is charged, is unconstitutionally vague. Hence, she argues that the trial court erred by failing to grant her motion to quash the charge on that ground.

LSA-R.S. 14:93 provides:

“Cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect, by anyone over the age of seventeen, of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child. Lack of knowledge of the child’s age shall not be a defense.
“Whoever commits the crime of cruelty to juveniles shall be fined not more than one thousand dollars, or imprisoned for not more than two years, with or without hard labor, or both.”

Recently, in State v. Heck, La., 307 So.2d 332 (1975), we reviewed the principles for testing the constitutionality of a statute attacked for vagueness. We stated:

“In testing constitutionality, the statute should be given ‘a genuine construction, according to the fair import of [its] words, taken in their usual sense, in connection with the context.’ LSA-R.S. 14:3; State v. Truby, 211 La. 178, 29 So.2d 758 (1947).
“If, because of vagueness, the statute fails to give a person of ordinary intelligence fair notice that his conduct is criminal, it violates the constitutional safeguards. United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1953); City of Shreveport v. Brewer, 225 La. 93, 72 So.2d 308 (1954).
“This principle, however, does not invariably require a detailed specification of the various ways in which the crime can be committed. In the absence of detailed specification, a statute is nonetheless valid if the phraseology has a well known or commonly understood meaning. City of Baton Rouge v. Norman, La., 290 So.2d 865 (1974); State v. Evans, 214 La. 472, 38 So.2d 140 (1948); State v. Saibold, 213 La. 415, 34 So.2d 909 (1948); State v. Varnado, 208 La. 319, 23 So.2d 106 (1944); State v. Pete, 206 La. 1078, 20 So.2d 368 (1944); 10 La.L. Rev. 198.”

The question here is whether the statute is so vague as to deprive the defendant of fair notice of the proscribed conduct. The defense challenges the terms “mistreatment” and “unjustifiable pain or suffering.”

“Mistreatment” is in common usage and is equated with “abuse.” See Webster’s Third New International Dictionary, Ver-bo abuse. In our opinion, “mistreatment” has a commonly understood meaning.

“Unjustifiable pain and suffering” is illuminated by LSA-R.S. 14:18. Justification can be claimed when the conduct is reasonable discipline of minors by a parent. Viewed in the context of the cruelty to juveniles statute, the challenged words are words of limitation. In a parent’s case, the application of the statute is limited to mistreatment causing pain and suffering exceeding the bounds of reasonable discipline. We conclude that the statute sufficiently and clearly gives a person of ordinary intelligence fair notice of what conduct is criminal. It follows that the assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant urges that the trial court erred in overruling her objection to the introduction of evidence of bad character. She avers that her character was not at issue; hence, under LSA-R.S. 15:481, the evidence was inadmissible. The State argues that the evidence was admissible because it was nothing more than the facts and circumstances of the crime.

The State called defendant’s paramour, Sillinger, as a witness, as he was present when the crime was committed. He testified that defendant asked him to move in with her. At this point defense counsel objected, asserting that the testimony constituted evidence of the defendant’s bad character. The trial judge overruled ■ the objection. The witness then gave details of a lovers’ quarrel, instigated by the defendant, causing him to ask her to leave his apartment. In a fit of anger, defendant tried to kick the witness, then grabbed her small daughter and “slammed” the child’s head into the doorframe, causing injury. The witness then had a neighbor call the police and separated the mother from the child.

Clearly, the testimony does no more than recount the events surrounding the crime. While it does incriminate the defendant, it is not evidence of bad character within the meaning of LSA-R.S. 15:481. That statute deals with general reputation. See LSA-R.S. 15 :479. It has no application to the facts of the crime charged.

Assignment of Error No. 2 is without merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

Defendant avers that the trial court committed error in allowing into evidence, over her objection, a statement made by the five-year-old child. She alleges that the admission of the child’s statement denied her the right of confrontation and it was highly prejudicial and unreliable.

Two witnesses, Sillinger and Carter, were allowed to testify that when the police arrived, shortly after the child was injured, the child told the police in the mother’s presence that the mother was the one who had injured her.

We have closely examined defendant’s allegations regarding the “hearsay” testimony and find them to be without merit. LSA-R.S. 15 :447, 448 define the res gestae exception to the hearsay rule in Louisiana and provide what forms part of the res gestae is admissible in evidence. LSA-R. S. 15 :447, 448 provide, respectively:

“Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontane-our words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.”
“To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.”

We have often held that the first complaint of a young child who has been the victim of sexual abuse is admissible either under the res gestae exception or as a special exception to the hearsay rule. See, e. g., State v. Pace, La., 301 So.2d 323 (1974); State v. Morgan, La., 296 So.2d 286 (1974) and the authorities therein cited.

In State v. Pace, supra, involving a six-year-old victim of an attempted rape, we held that the mother’s testimony of the child’s complaint was admissible, stating:

“In prosecutions for sex offenses, the overwhelming weight of authority is that the original complaint of the victim, especially that of a young child, is admissible in evidence. State v. Morgan, La., 296 So.2d 286 (1974); People v. Burton, 55 Cal.2d 328 [11 Cal.Rptr. 65], 359 P.2d 433 (1961); People v. Bonneau, 323 Mich. 237, 35 N.W.2d 161 (1948); 65 Am.Jur.2d Rape, § 76, p. 805; 2 Wharton’s Criminal Evidence (Torcia, 13th ed., 1972) § 313, pp. 113-118; McCormick on Evidence (2d ed. 1972) § 297, p. 709.
“The complaint is admissible under either the res gestae doctrine or as a special exception to the hearsay rule. The better rule is that the nature of the crime and the identity of the offender disclosed in the complaint is admissible testimony. People v. Burton, supra; People v. Bonneatt, supra; McCormick on Evidence (2d ed. 1972) § 297, p. 709.”

We discern no real distinction for allowing into evidence the original complaint of a young child who has been the victim of a sexual attack but disallowing the original complaint of a young child who has been the victim of a physical attack. The battered child’s statement, no less than the sexually abused child’s statement, falls within the rationale of the hearsay exception.

In the present case, the five-year-old child made the statement within thirty minutes after the event, while she was still bleeding and hysterical. We conclude that the statement is part of the res gestae and admissible in evidence.

These assignments of error are without merit.

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

DIXON, J., dissents.

CALOGERO, J., dissents and assigns reasons.

BARHAM, J., concurs in decree only disagreeing with treatment of Assignments of Error 3 and 4.

CALOGERO, Justice

(dissenting).

I believe that Assignments of Error Nos. 3 and 4 have merit. The testimony of two state witnesses, Sillinger and Carter, were clearly inadmissible hearsay. These two witnesses were allowed to testify to a statement made by the victim, Karen Co-meaux, to the policemen following the altercation between the defendant and Sillin-ger. The victim was available at the trial and could have testified.

The majority holds that the testimony of these two witnesses was admissible under the res gestae exception to the hearsay rule. I do not agree. Res gestae allows admission of circumstances and declarations that are “necessary incidents of the criminal act.” R.S. 15:448. But the “words of the participants when narrating the events” are not part of the res gestae. R.S. 14:447. The statement of Karen Co-meaux was the statement of a participant narrating the event. Her statement was therefore not a part of the res gestae. Since the testimony was hearsay and not admissible under the res gestae exception, the admission of this testimony was reversible error.

I respectfully dissent.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Robert Lee WEST and Sampson West.
    No. 56339.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Rehearing Denied Oct. 31, 1975.

      James S. Gravel, Alexandria, for Robert Lee West.

      Richard V. Burnes, Gravel, Roy & Burnes, Alexandria, for Sampson West.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., Alfred B. Shapiro, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The Rapides Parish Grand Jury indicted Robert Lee West and Sampson West for the second degree murder of Ray James Foster on November 3, 1974. The State brought the defendants to trial and on March 13, 1975, the jury found Robert West guilty of Second Degree Murder and Sampson West guilty of Manslaughter.

The trial judge sentenced Robert Lee West to life imprisonment and Sampson West to imprisonment for a term of twenty-one years.

Defendants have appealed, relying upon eleven assignments of error. Finding merit in none of them, we affirm the convictions and sentences.

The circumstances from which the prosecution arose commenced late in the afternoon on November 3, 1974, when the two defendants approached the victim’s car. Sampson West pointed a gun at Foster during a heated argument. Sampson walked away from the car and apparently handed the gun to Robert West, who was standing several feet away from Foster’s car. Sampson then returned to the car and began beating Foster and pulling him from the car. During the fight between Sampson and Foster, Robert fatally shot Foster.

ASSIGNMENT OF ERROR NO. 1

One eyewitness to the events of November 3 was Bobby'Thomas, the brother of the two defendants. Shortly after the incident, Thomas gave the police a statement describing in some detail what had occurred. The prosecution called Thomas as a witness. During the course of his testimony, Thomas became very evasive and asserted that he could not remember much about the incident. The prosecutor asked the witness if he had made a prior statement to police officers. The witness admitted that he had, and also admitted that he had reread the statement immediately prior to trial, but claimed that he had forgotten half of the statement. The prosecutor then asked, “Have your two brothers been intimidating you in any way?” The witness answered, “No, sir.” Defense counsel objected, and after the jury was removed, moved for a mistrial based on the district attorney’s question. The trial judge denied the motion for mistrial and overruled the objection to the question. Only one of the defendants sought cautionary instructions to the jury, and then only in the event that the prosecution attempted to elicit the prior inconsistent statement from the witness, which the prosecution chose not to do.

In brief, defense counsel argue that the question asked the witness by the district attorney comes within the purview of Article 770(2) of the Louisiana Code of Criminal Procedure, which provides:

“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
“(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.”

They also cite Article 775 of the Louisiana Code of Criminal Procedure, which mandates a mistrial when “prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial . .

We hold that the asking of the question by the district attorney and the subsequent refusal by the trial judge to order a mistrial did not constitute reversible error. We base our holding on LSA-R.S. 15:487, which provides:

“No one can impeach his own witness, unless he have been taken by surprise by the testimony of such witness, or unless the witness show hostility toward him, and, even then, the impeachment must be limited to evidence of prior contradictory statements.” (Italics ours).

The statute is phrased in the disjunctive by use of the word “or” and the comma immediately preceding it. Therefore, for impeachment of one’s own witness, it is necessary only that either surprise or hostility be shown. The jurisprudence supports this construction of the statute. In State v. Ray, 259 La. 105, 249 So.2d 540 (1971), we upheld impeachment by the State of its own witness on the ground that the witness “was evasive and extremely hostile to the prosecution.” See also State v. Rossi, La., 273 So.2d 265 (1973) (Tate, J. concurring); State v. Willis, 241 La. 796, 131 So.2d 792 (1961); State v. Williams, 185 La. 849, 171 So. 52 (1936); Pugh, Evidence, 22 La.L.Rev. 397 (1961).

Applying the statute to the facts in the instant case, we find that the question asked by the district attorney was proper to show that the witness had become hostile to the State’s case. Not only was the question relevant, but it was also necessary in laying the foundation of hostility for impeachment of the witness. The failure of the State to complete the impeachment of the witness by introducing the prior inconsistent statement did not render the question less relevant. We hold that the mandatory mistrial provisions of Article 770 are inapplicable.

Furthermore, we reject the defendant’s argument that the State’s conduct was so prejudicial as to fall within Article 775, because the witness’ response, “No, sir.”, was an answer favorable to the defense rather than prejudicial to it.

We conclude that the assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, the defendants complain of the trial judge’s failure to grant a motion for a directed verdict of not guilty urged by both defendants after the State rested its case. They based their motion upon the allegation that the State had failed to prove beyond a reasonable doubt that Rapides Parish was the proper venue. The court permitted the State to re-open its case in order to offer additional proof of venue, over defense objections.

The following testimony elicited prior to the motion for directed verdict from State witness James Augustine, an eyewitness to the crime, constitutes evidence of proper venue:

“Q. Mr. Augustine, were you in Alexandria on November 3, 1974?
A. Uh, huh.
Q. Pardon?
A. I was.
O. What time did you come to Alexandria ?
A. I was, I stayed all night down here.
Q. And where did you stay ?
A. At my brother’s.
Q. Did you go over to the home of Theresa Holmes or Theresa Hunt on E Street that day ?
A. Uh, huh.
Q. When did you go there ?
A. I was there off and on all day.
Q. All right, were you there in the late evening hours ?
A. I was.
Q. Did you, during the late evening hours there, see either one of these defendants there?
A. No.
Q. On that day ?
A. I seen them later on that evening about [interrupted],
Q. That’s what I say, later on that evening did you see them there?
A. Uh, huh.”

Although Article 615 of the Louisiana Code of Criminal Procedure requires that the State prove proper venue beyond a reasonable doubt, this Court may not review allegations of insufficiency of proof, but is limited to a determination of whether there was some evidence submitted to the jury to establish venue. State v. Jackson, La., 308 So.2d 265 (1975); State v. Dillon, 260 La. 215, 255 So.2d 745 (1971); State v. Richard, 245 La. 465, 158 So.2d 828 (1963). We find that the State introduced some evidence that the offense charged occurred in Alexandria, in the jurisdiction of the Ninth Judicial District Court. Having so concluded, it becomes unnecessary to determine the propriety of allowing the State to re-open the case for additional evidence on this point.

ASSIGNMENT OF ERROR NO. 3

Defendants object on another ground to evidence received after the State re-opened its case to establish venue. Juanita London, the defendants’ sister and the victim’s concubine, testified for the State on its case-in-chief; she was recalled to testify as to venue. Defendants contend that her supplemental testimony exceeded the permissible scope of redirect examination as set forth in LSA-R.S. 15:281:

“The redirect examination must be confined to the subject matter of the cross-examination and to the explanation of statements elicited on cross-examination; but the application of this rule is within the discretion of the trial judge, provided that opportunity be not denied to recross on the new matter brought out on the redirect.” (Italics ours).

We find no abuse of the trial judge’s discretion in this matter. See, e. g., State v. Morgan, La., 315 So.2d 632 (1975).

ASSIGNMENTS OF ERROR NOS. 4 AND 5

Tn Assignment of Error No. 4, defendant Sampson West contends that the trial judge committed error in failing to grant a directed verdict in his favor at the close of the State’s presentation of evidence on the ground that there was insufficient evidence to convict him of Second Degree Murder. Assignment of Error No. 5 sets forth Robert West’s identical complaint. The thrust of Sampson West’s argument is that there was no evidence to connect him with his brother’s shooting of the victim.

Under this Court’s interpretation of Article 778 of the Louisiana Code of Criminal Procedure, a directed verdict is proper only when there is no evidence to prove an essential element of the crime. State v. Douglas, La., 278 So.2d 485 (1973). Our review of the record in this case convinces us that there was some evidence of all the essential elements of the crime as to both defendants. The testimony shows that both defendants were active participants in the altercation with Foster; that both defendants came together to the scene of the crime; that Sampson West threatened the victim with the gun, then handed it to Robert West, and finally returned to the car and attacked the victim immediately preceding the shot fired by Robert West. From those and other facts, we conclude that these assignments of error are without merit.

We also reject Sampson West’s argument that the jury’s verdict convicting him of Manslaughter was unwarranted, since its only possible basis must have been that they held him accountable as a principal for the Second Degree Murder committed by his brother. Manslaughter is a responsive verdict to a charge of Second Degree Murder. LSA-C.Cr.P. Art. 814. In Louisiana, when there is evidence to prove the greater offense, the -same evidence will also support a responsive verdict of a lesser offense. This Court will not examine the evidence to evaluate the verdict. State v. Peterson, La., 290 So.2d 307 (1974); State v. Cooley, 260 La. 768, 257 So.2d 400 (1972).

ASSIGNMENTS OF ERROR NOS. 6 AND 7

Defendants complain about the following comments made by the district attorney during his argument to the jury:

“A witness by the name of Thomas. And I think it is important to consider that this witness, you remember him, is a brother to the defendants, and he comes up with a short memory. Short memory. The other brother who was in the car, Charles West, he left town. We don’t have their version of what happened. We had one of them up here and we couldn’t get it out of him. Just had a short memory. Couldn’t remember. It was his own brother, too, and he couldn’t remember. Now either he was not telling you the truth when he said he couldn’t remember in order to protect his brother because the truth would hurt him

Defendants contend that these remarks constituted impeachment by the State of its own witness, which should not have been permitted under LSA-R.S. 15:487, supra, and further, that the trial court erred in failing to give a limiting instruction that the prosecutor’s statement was not to be regarded as evidence, but merely for purposes of impeachment.

In State v. Dorsey, 262 La. 785, 264 So.2d 644 (1972), we held that the district attorney was merely advancing his theory of the case when in his argument he made a statement implying that one of the State witnesses whose testimony contradicted that of two other State witnesses was testifying falsely. Our holding in Dorsey controls the instant case. The District Attorney may properly argue to the jury factors affecting the credibility of witnesses so that the jury may consider these factors in evaluating the testimony. We find his remarks within the scope of Article 774 of the Louisiana Code of Criminal Procedure, providing:

“The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. . ” (Italics ours).

These assignments of error are without merit.

ASSIGNMENTS OF ERROR NOS. 8 AND 9.

Assignment of Error No. 8 directs itself to the district attorney’s rebuttal argument, in which he stated:

“But if you don’t find that they went there and had the specific intent to kill —or a specific intent to do great bodily harm to the victim — Robert plead guilty to manslaughter when he got on the stand.”

The defendants objected to the statement and moved for a mistrial, which was denied. Defendants contend that the statement constitutes an expression of the prosecutor’s personal opinion of their guilt, which is statutorily and jurisprudentially prohibited. LSA-C.Cr.P. Art. 774; State v. Kaufman, La., 304 So.2d 300 (1974); State v. Curry, 262 La. 280, 263 So.2d 36 (1972). When the jury returned to the courtroom following argument on the defense motion for a mistrial, .the judge gave them the following admonition regarding the remark :

“BY THE COURT: The record will reflect the jury has returned to the Courtroom. Ladies and Gentlemen of the Jury I direct you and order you to disregard the last comment made by the prosecutor, that is, concerning the last part of the last statement he made about the defendant having pled. It is your job and your function here to decide the guilt or innocence of this witness and you are to disregard the last part of that statement. Proceed.”

Assignment of Error No. 9 is the defendants’ complaint that the admonition was insufficient to cure the prejudice suffered because of the remark.

In State v. Sarcovich, 246 La. 503, 165 So.2d 301 (1964), we stated the controlling law as follows:

“Although it is generally considered to be erroneous for the prosecuting attorney to declare his individual opinion or belief that the accused is guilty when the accusation is made in such a manner that the jury may understand that the prosecutor’s belief is based on evidence dehors the record, such an opinion is permissible if the prosecutor states, or it is apparent, that his opinion is based on the evidence of record. [Case citations omitted].”

The remarks of the District Attorney were obviously intended to convey the thought that the testimony of Robert Lee West contained the admission of sufficient facts upon which to base a verdict of Manslaughter. It was an evaluation of evidence, rather than the expression of the District Attorney’s personal opinion outside the record.

We conclude that the remarks provided no ground for a mistrial.

Assuming that the words “pled guilty to manslaughter” were misleading, the trial judge’s admonition to the jury adequately prevented any prejudice.

ASSIGNMENTS OF ERROR NOS. 10 AND 11

These assignments of error relate to the trial judge’s refusal to give two special charges requested by the defendants regarding the burden of proof in cases where accidental killing is a defense. The court instructed the jury thoroughly about reasonable doubt and the requirements for specific and general criminal intent. Article 807 of the Louisiana Code of Criminal Procedure provides that a requested special charge need not be given if it is included in the general charge or in another special charge to be given. We hold that the substance of the requested charges was contained in the general charge, and, therefore, we find these assignments of error to lack merit.

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

DIXON, J., concurs.

BARHAM, J., dissents.


author: CALOGERO, Justice. TATE, Justice

text:
    STATE of Louisiana v. Albert C. WHITEHURST.
    No. 56243.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Rehearing Denied Oct. 31, 1975.

      Lewis Weinstein, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Charles R. Lindsay, Asst. Dist. Atty., for plaintiff-appellee'.
   CALOGERO, Justice.

Defendant Albert Whitehurst was charged with distribution of heroin, a violation of R.S. 40:966, was tried by jury, convicted, and sentenced to life imprisonment. Defendant reserved three assignments of error which he contends require reversal of his conviction.

Assignment of Error No. 1.

Defendant argues that the sentence imposed on him was cruel and unusual punishment, in violation of the Eighth Amendment to the United States Constitution.

The offense for which defendant was charged occurred on or about February 11, 1974. He was charged in a bill of information on April 16, 1974 and tried on February 19, 1975. The statute under which defendant was charged, R.S. 40:966, was amended in 1973 to require that the sentence imposed for distribution of heroin be life imprisonment at hard labor. In addition, the punishment may also include a fine of not more than fifteen thousand dollars. Defendant Whitehurst was sentenced to life imprisonment. He was not fined. Defendant argues that the imposition of a mandatory life sentence on a person convicted of distributing heroin constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution because the mandatory sentence requires the trial judge to impose the penalty without considering the age and background of the defendant or other mitigating circumstances which affect the gravity of the criminal conduct.

This Court previously held that the mandatory sentence of life imprisonment imposed upon conviction of a defendant for distribution of heroin was not cruel and unusual punishment. State v. Stetson, La., 317 So.2d 172, decided on July 25, 1975. There we held that this punishment “is not so severe as to be degrading, nor is it arbitrarily inflicted or unacceptable to contemporary society, [or] disproportionate to the crime.”

Defendant has not directed our attention to the Louisiana constitutional provisions prohibiting cruel and unusual punishment. We note nonetheless that while the Louisiana Constitution of 1921 prohibited simply “cruel and unusual punishment,” the 1974 Constitution bars “cruel, excessive, or unusual punishment” (emphasis provided). The addition of the word “excessive” may add a new dimension to the constitutional prohibition. Whether it does or does not, we need not here décide, for it is our conclusion that mandatory life imprisonment, subject to probation and parole opportunities, but imposed without judicial consideration of any attendant mitigating circumstances, is neither excessive, nor cruel and unusual.

The assignment of error lacks merit.

Assignment of Error No. 2.

Defendant argues that the trial court erred in refusing to allow him to call to the stand assistant district attorney Charles Lindsay in order to impeach the testimony of the narcotics agent, William Kidd. Agent Kidd had testified at defendant’s trial that the heroin in question had been sold to him for one hundred dollars. The assistant district attorney, however, had stated at a “Boykin” hearing at the time of the guilty plea of a co-perpetrator of the crime that the price was “approximately $200.00.” Defendant wanted to call the prosecutor to the stand to repeat this testimony so as to impeach agent Kidd’s credibility.

In- order to impeach the credibility of a witness, an attorney must first lay a proper foundation in the manner required by R.S. 15 :493 which provides:

“Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.”

The defense attorney did not ask Kidd if he had earlier told Lindsay the purchase price was $200.00. He merely asked Kidd whether he was sure that the sale price was one hundred dollars, not two hundred dollars, and Kidd insisted that the price was one hundred dollars. In fact, Kidd himself had never testified to a different amount. It was the prosecutor, who was not present at the heroin sale, who stated at a “Boykin” hearing that the price was “approximately $200.00.” No proper foundation was laid by the defense attorney.

Inasmuch as the sole asserted reason for calling the assistant district attorney as a witness was for this impeachment purpose and since the question was impermissible in light of failure to lay the proper foundation, there was no error in the trial judge’s disallowing calling of the assistant district attorney.

Assignment of Error No. 3.

Defendant contends that the trial court erred when it refused to order agent Kidd to furnish defense counsel with a copy of his report. Defendant contends that the court’s ruling violated State v. Tharp, 284 So.2d 536 (La.1973) because he was testifying from “past recollection recorded.” The state argues that the witness’ memory was merely refreshed as to pertinent dates as well as the license number of the vehicle and that his testimony about the conversations and the transaction was from what he remembered on the day of the trial, of the events.

While the witness testified, he had his file folder on his lap, but did not open it. He testified that he had reread the folder a week before the trial, the night before the trial, and the morning of the trial. He testified that these rereadings refreshed his memory as to dates and times and license plate numbers but that he recalled what took place the night in question very vividly and that he was testifying based upon his present recollection of the events. This situation is distinguishable from that in State v. Tharp, supra, where the witness testified that a certain fact was true because, “That’s what I have in my report.” Here, although the officer had the report with him on the stand, he testified from his memory, refreshed by reading over his report outside the courtroom prior to trial. Hence, State v. Tharp, supra, is not controlling here, and the denial of the motion to produce was not error. See State v. Lane, 302 So.2d 880 (La.1974).

For the reasons assigned, the conviction is affirmed.

TATE, J., concurs and assigns reasons.

DIXON and BARHAM, JJ., dissent.

TATE, Justice

(concurring).

With regard to the third assignment, the failure to allow defense access to the agent’s report may not be reversible in view of the reliance upon past jurisprudence. However, by appropriate post-conviction proceedings, the defendant will obtain judicial review of his contentions that the report contained information favorable to his defense, withheld from him in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

I note this once again, in order to suggest that, presented with similar contentions, the trial court should exercise its discretion in favor of (at the least) an in camera inspection by it of the report, at the conclusion of direct examination of the witness. If the report contains material inconsistent with the agent’s trial testimony or other material favorable to the defense, the accused should have access at least to such material for purposes of cross-examination and preparation of his defense. See concurring opinion in State v. Babin, La., 319 So.2d 367, 372. In federal criminal prosecutions, this practice both enables the trial court to assure a fair first trial as well as avoids the delay in finality and waste of judicial and legal resources involved by postponing the issue for determination in post-conviction proceedings. Further, if the prosecutor’s good faith but unilateral decision not to give access at the trial proves wrong, the post-conviction hearings will result in voiding the first verdict and in requiring the state to afford the accused a new trial.

The legislature has implicitly recognized this to be the path of fairness and judicial efficiency by expressly authorizing this procedure by its amendment of La.R.S. 15 :574.12 F by Act 322 of 1975.

      . The state strongly urges to this Court that excessive punishment is and always has been considered cruel and unusual under the proscription of the 1921 Louisiana Constitution and of constitutions in other jurisdictions. He argues, therefore, that the addition of the word excessive in the 1974 Constitution does not add anything to the law.


text:
    STATE of Louisiana v. Phillip Wayne LEMOINE.
    No. 56287.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Rehearing Denied Oct. 31, 1975.
    Curtis K. Stafford, Jr., Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., John Sinquefield, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged Phillip Wayne Le-moine with the intentional distribution of heroin in violation of LSA-R.S. 40:966 (A). He was tried and found guilty. The trial judge sentenced the defendant to imprisonment for life. He appeals his conviction and sentence relying on one assignment of error.

Defendant assigns as error the State’s failure to lay a proper foundation for the introduction of the heroin, that is, the failure to adequately establish the continuous chain of custody of the controlled dangerous substance. He argues that the court erred in admitting into evidence, over his objection, the marked envelope into which the police officers put the evidence (State’s Exhibit No. 2), the envelope containing the tin foil packets of heroin (State’s Exhibit No. 3) and the laboratory report identifying the heroin (State’s Exhibit No. 4).

Based on the testimony at trial, the facts surrounding the State’s chain of custody of the heroin are:

Baton Rouge City Police Officer Clyde Evans, an undercover agent, purchased five “papers” of heroin from the defendant. Officer Evans immediately took the heroin to the Narcotics Division of the Baton Rouge Police Department and gave it to his immediate supervisor, Officer Charles Spillers. The evidence, consisting of five packets of heroin in an envelope, was marked for identification. Officers Spillers and Evans put the evidence into a larger brown envelope marked file number “5272.” The evidence was kept from that date, February 6, 1974, to February 12, 1974, in a locked file cabinet in the Narcotics Division office.

On February 12, 1974, Officer Spillers took the evidence to the Louisiana State Police Crime Laboratory, where he gave it to Paul Cobb, supervisor of the laboratory. Once received, the evidence was placed in a crime laboratory envelope, given an identification number, and placed in a locked evidence bin. Irving Johnson, Jr., a Louisiana State Police analyst, removed the evidence from the bin for testing. He then returned the evidence to the locked bin, where it was kept until he removed it to bring it to court for trial.

In State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), we held:

“To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it is offered in evidence.”
"The law does not require that the evidence as to custody eliminate all possibility that the object has been altered. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient. State v. Coleman, 254 La. 264, 223 So.2d 402; State v. Martin, 250 La. 705, 198 So.2d 897; State v. Bertrand, 247 La. 232, 170 So.2d 386.”

See also State v. Gladden, 260 La. 735, 257 So.2d 388 (1972); State v. McQueen, 257 La. 684, 243 So.2d 798 (1971); State v. Pesson, 256 La. 201, 235 So.2d 568 (1970).

Here, the record is adequate to establish a chain of custody by a preponderance of the evidence. Moreover, Officer Spillers made a visual identification of the contraband during his testimony. Hence, the evidence was properly admitted.

The lack of positive identification goes to the weight of the evidence, rather than to its admissibility. Ultimately, the connexity of demonstrative evidence is a factual question for the jury. See State v. Dotson, supra; State v. Gladden, supra.

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

      . DISTRICT ATTORNEY’S QUESTION: “Now officer . . . does that appear to be the same material that you placed in the envelope?”
      WITNESS'S REPLY: “Yes, sir.” (Tr. 81)