text:
    Frank A. STUART, M. D., P. A., and Underwriters at Lloyds, Appellants, v. Ruth Johnson McCUTCHEON and Louis N. McCutcheon, her husband, Appellees.
    No. 78-674.
    District Court of Appeal of Florida, Fourth District.
    July 12, 1978.

      James E. Tribble of Blackwell, Walker, Gary, Powers, Flick & Hoehl, Miami, for appellants.
    George A. Williamson, Fort Lauderdale, for appellees.
   PER CURIAM.

This improper interlocutory appeal is treated as a petition for common law certio-rari pursuant to Fla.R.App.P. 9.040(c). Cer-tiorari-is hereby denied.

CROSS, MOORE and BERANEK, JJ., concur.


source: Caselaw Access Project

author: DOWNEY, Chief Judge.

license: Public Domain

text:
    William J. HOLLAND, Patricia A. Holland and H. O. T. and Associates, Ltd., a limited partnership, Petitioners, v. Arthur T. TENENBAUM, Jerome J. Topping, Harold Simon and Arthur T. Tenenbaum, Trustee, Respondents.
    No. 78-711.
    District Court of Appeal of Florida, Fourth District.
    July 12, 1978.
    Stan L. Riskin of Riskin and Riskin & Dishowitz, Hollywood, for petitioners.
    Jan Stuart Dubin, Fort Lauderdale, and William F. Sullivan, Pompano Beach, for respondents.
   DOWNEY, Chief Judge.

By Petition for Certiorari we have for review an order of the trial court removing Stan L. Riskin, Esquire, as attorney for the defendants/counterclaimants in the trial court.

It appears that respondents filed a motion to disqualify Mr. Riskin and remove him as counsel for petitioners on the grounds that he had previously represented both parties to this litigation in matters which should now preclude his representing petitioner because it would violate the attorney client relationship. Each of the parties filed affidavits in support of their respective contentions and the trial judge entered an order, after hearing argument but no evidence, removing Mr. Riskin as counsel.

Removal of counsel for one of the parties is a serious matter which should be done only after an adequate hearing. The affidavits filed by the parties do not agree on the issue presented, thus necessitating an evidentiary hearing.

Accordingly, the petition for writ of cer-tiorari is granted and the order being reviewed is quashed and the cause is remanded with directions to hold an evidentiary hearing on the motion to disqualify counsel.

CROSS and DAUKSCH, JJ., concur.


author: MELVIN, Judge.

text:
    LET’S HELP FLORIDA, a political committee, Appellant, v. Bruce SMATHERS, as Secretary of State, and Wilma Sullivan, as Supervisor of Elections of Leon County and on behalf of all Supervisors of Elections of the State of Florida, Appellees.
    No. KK-154.
    District Court of Appeal of Florida, First District.
    July 13, 1978.

      Theodore L. Tripp, Jr., of Tobias Simon, P. A., Miami, for appellant.
    David E. Cardwell, F. E. Steinmeyer, III, Tallahassee, for appellees.
    Hugh M. Taylor, Jacksonville, for amicus curiae.
   MELVIN, Judge.

Appellant appeals from a Final Judgment holding that the provisions of Section 99.-097(1) and (2), Florida Statutes (1977), are not applicable to initiative petition procedures provided for by Article XI, Section 3, Florida Constitution.

Appellant is a political committee that is interested in presenting, through the process of initiative, a proposed amendment to the Florida Constitution, in accord with the provisions of Article XI, Section 3, Florida Constitution.

Article XI, Section 3, Florida Constitution, reserves unto the people the power by initiative to bring about an amendment to the Constitution. It is therein provided:

“The power to propose the revision or amendment of any portion or portions of this constitution by initiative is reserved to the people, provided that, any such revision or amendment shall embrace but one subject and matter directly connected therewith. It may be invoked by filing with the secretary of state a petition containing a copy of the proposed revision or amendment, signed by a number of electors in each of one half of the congressional districts of the state, and of the state as a whole, equal to eight percent of the votes cast in each of such districts respectively and in the state as a whole in the last preceding election in which presidential electors were chosen.”

It is clear that the people, in providing that their Constitution may be amended by their own initiative, engrafted a constitutional protection of such right by requiring specified elector endorsement of that proposed amendment. A proposed amendment by initiative may only be activated when electors, equal in number to eight percent of the votes cast within the areas and in the election designated in Article XI, Section 3, Florida Constitution, sign such proposed amendment.

Article XI, Section 5(a) mandates the time frame within which the initiative petition shall be filed with the Secretary of State.

It was the thrust of the appellant’s position in the trial court, and likewise here, that it is entitled to require the various county supervisors of registration to check the signatures appearing upon the initiative petition by a random sample procedure. Section 99.097(1) and (2), Florida Statutes (1977), provides as follows:

(1) As determined by each supervisor, based upon local conditions, the checking of names on petitions may be based on the most inexpensive and administratively feasible of either of the following methods of verification:
(a) A name-by-name, signature-by-signature check of the number of authorized signatures on the petitions; or
(b) A check of a random sample, as provided by the Department of State, of names and signatures on the petitions. The sample must be such that a determination can be made as to whether or not the required number of signatures have been obtained with a reliability of at least 99.5 percent. Rules and guidelines for this method of petition verification shall be promulgated by the Department of State, which may include a requirement that petitions bear an additional number of names and signatures, not to exceed 15 percent of the names and signatures otherwise required. If the petitions do not meet such criteria, then the use of the verification method described in this paragraph shall not be available to supervisors.
(2) When a petitioner submits petitions which contain at least 15 percent more than the required number of signatures, he may require that the supervisor of elections use the random sampling verification method in certifying the petition.”

A procedure whereby a candidate may have his name placed upon the ballot by obtaining the necessary number of signatures of electors residing within the area embraced by the office to which election is sought, is purely a creature of statute offering a permissible detour around related statutes requiring the payment of certain qualifying fees. The Legislature, having established such petition procedure, may, in its discretion, provide for a random sample type check of such signatures.

When this Court is urged to construe Section 99.097(l)(b) and (2), Florida Statutes (1977), as authorizing or mandating a random check of the signatures appearing upon initiative petitions authorized by Article XI, Section 3, Florida Constitution, we must give the statute such reasonable construction as will not bring upon it constitutional destruction. See Burr v. Florida East Coast Ry. Co., 77 Fla. 259, 81 So. 464 (1919). We hold that Section 99.097(1)(a) is consistent with exactitude and accuracy, and is, therefore, not constitutionally offensive if permissively applied to Article XI, Section 3, Florida Constitution, initiative proceedings.

However, Article XI, Section 3, having mandated that there shall be no less than eight percent of the described electors who shall sign such initiative petition before the same shall attain ballot status, we do not presume that the Legislature intended to enact a law where, by a random or spot check, less than eight percent would become permissible. It has no authority to so legislate. It follows, therefore, that Section 99.097(1)(b) and (2) has no application to Article XI, Section 3, Florida Constitution, relating to proposed initiative amendment to the Constitution. The trial court did not pass upon the constitutionality of Section 99.097(1)(b) and (2), Florida Statutes (1977), and, likewise, we do not reach that question. Neither is it necessary for us to reach the question of the asserted rulemaking authority of the Secretary of State.

It is unnecessary that we cite authority for this Court’s construction of Article XI, Section 3, Florida Constitution, as herein-above set forth. The mandated procedure in Article XI, Section 3, Florida Constitution, clearly constitutes the highest authority that may be cited.

The final judgment entered by the trial court is AFFIRMED as modified by this opinion.

BOYER, Acting C. J., and BOOTH, J., concur.


author: PER CURIAM.

text:
    LET’S HELP FLORIDA, a political committee, Appellant, v. Bruce SMATHERS, as Secretary of State, Appellee.
    No. KK-290.
    District Court of Appeal of Florida, First District.
    July 18, 1978.
    Rehearing Denied July 20, 1978.

      Tobias Simon, Miami, for appellant.
    David E. Cardwell, Tallahassee, for appel-lee.
   PER CURIAM.

By this appeal, Let’s Help Florida, a political committee, challenges the promulgation of emergency rule ICER-78-8 by the Secretary of State, Bruce Smathers. This case was consolidated with ease # KK-154, in which a separate opinion of this court has previously been filed.

Emergency rule ICER-78-8, here challenged, provides as follows:

“Petitions proposing amendments to the constitution by the initiative method shall be submitted to the appropriate supervisor of elections no later then July 21,1978 for the purpose of the verification of signatures contained on such petitions. No later than 5:00 p. m. of the ninety-first day prior to the general election the supervisor of elections shall notify the Division of Elections of the number of signatures of a particular petition found to be valid.”

The Secretary’s reason for finding an immediate danger to the public health, safety and welfare necessitating the promulgation of the emergency rule is set forth as follows:

“SPECIFIC REASON FOR FINDING AN IMMEDIATE DANGER TO PUBLIC HEALTH, SAFETY AND WELFARE : The Florida constitution requires that the initiative process for amending the constitution be invoked by filing the petition with the Secretary of State. To attain ballot position for the 1978 general election a petition having sufficient signatures must be filed no later than August 8, 1978. This filing is accomplished by the supervisors of election notifying the Division of Elections of the number of valid signatures verified. The Florida State Association of Supervisors of Elections has advised the division of the severe problems encountered by the submission of several thousands of petitions at the time near the deadline for filing the petition and certified verification with the division. The supervisors have recommended that any petitions be submitted no later than July 21, 1978 ■ in order to better insure an accurate and complete verification procedure.”

This court does not consider the reason given as constituting an “immediate danger”. The Secretary’s failure to foresee the submission of several thousand petitions at the time near the deadline and the concomitant problems constitutes an avoidable administrative failure and does not justify the adoption of an emergency rule. Postal Colony Co., Inc. v. Askew, 348 So.2d 338, (Fla. 1st DCA 1977).

Therefore, without regard to the validity of the rule or the constitutional issues raised by the parties, we hold that the Secretary improperly promulgated emergency rule ICER-78-8 because it was not necessary for the public health, safety or welfare. ICER-78-8 is invalid and void.

BOYER, Acting C. J., and MELVIN and BOOTH, JJ., concur.

      . 360 So.2d 494, Case No. KK-154, opinion filed July 13, 1978.


text:
    Marie L. HEREDIA, Individually, Marie L. Heredia, as the natural mother and next friend of Emil C. Heredia, a minor, and Marie L. Heredia, Individually, and as the natural mother and next friend of Emil C. Heredia, a minor, and on behalf of all other Florida residents who are similarly situated, Appellants, v. ALLSTATE INSURANCE COMPANY, an Illinois Corporation, Appellee.
    No. 76-833.
    District Court of Appeal of Florida, Third District.
    July 21, 1978.
    Milton Kelner, Miami, for appellants.
    Talburt, Kubicki & Bradley and Robert J. Dickman, Miami, for appellee.
    Before PEARSON and BARKDULL, JJ. and CHARLES CARROLL (Ret.), Associate Judge.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on June 14, 1977 affirming the order of the circuit court of Dade County, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed March 9, 1978 (358 So.2d 1353) and mandate now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on June 30, 1977 is withdrawn, the judgment of this court filed June 14, 1977, 346 So.2d 1230 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the order of the trial court appealed herein is reversed and the cause is remanded for further proceedings consistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (Rule 3.16(b), Florida Appellate Rules).


text:
    Alphonso STUART, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1172.
    District Court of Appeal of Florida, Third District.
    July 21, 1978.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on October 26, 1976 affirming the judgment and sentence of the Circuit Court of Dade County, Florida in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed June 8, 1978, 360 So.2d 406, and mandate now lodged in this court, quashed this courts judgment.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on December 21, 1976 is withdrawn, the judgment of this court filed October 26, 1976, 339 So.2d 659, is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the judgment and sentence of the trial court is reversed and the case is remanded with direction to discharge the appellant.

It is so ordered.

Costs allowed shall be taxed in the trial court (Rule 3.16(b), Florida Appellate Rules).


author: MARCUS, Justice. TATE, Justice, DIXON, Justice

text:
    STATE of Louisiana v. Steven Jerome DREW.
    No. 61121.
    Supreme Court of Louisiana.
    May 22, 1978.
    Rehearing Denied July 3, 1978.

      Steven H. Beadles, Michael W. Beam, Bossier City, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Lawrence M. Johnson, Donald C. Brown, Abbott J. Reeves, Asst. Dist. Attys., Research and Appeals,-' for plaintiff-appellee.
   MARCUS, Justice.

Steven Jerome Drew was indicted by the grand jury for an aggravated rape allegedly committed on October 18, 1976, in violation of La.R.S. 14:42 (1975). After trial by jury, defendant was found guilty as charged. A sentencing hearing was conducted before the same jury that determined the issue of guilt; and the jury unanimously recommended a sentence of life imprisonment without benefit of probation, parole or suspension of sentence. The trial court sentenced defendant in accordance with the recommendation of the jury. On appeal, defendant relies upon fifty assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1 AND 49

Defendant contends the trial court erred in denying his motion to quash the indictment and motion in arrest of judgment. He argues that the statute under which he was indicted and convicted, La.R.S. 14:42 (1975), has no valid penalty provision and is unconstitutionally vague and overbroad.

La.R.S. 14:42 (1975) provided:

Aggravated rape is a rape, heterosexual or homosexual, committed where the sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) Where the victim resists the act to the utmost, but whose resistance is overcome by force;
(2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution;
(3) Where, the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.
Whoever commits the crime of aggravated rape shall be punished by death.

La.Code Crim.P. art. 905.6, one of the statutes under which defendant’s sentence was determined, provides:

A sentence of death shall be imposed only upon the unanimous recommendation of the jury. If the jury unanimously finds the sentence of death inappropriate, it shall recommend a sentence of life imprisonment without benefit of probation, parole or suspension of sentence.

First, we address the issue concerning the invalidity of the penalty provision of La. R.S. 14:42 (1975). After the instant trial on the merits and sentencing hearing before the same jury that determined the issue of guilt, but prior to imposition of that sentence by the trial court, the United States Supreme Court rendered a decision in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). In Coker, the Supreme Court reviewed a death sentence imposed for aggravated rape of an adult woman and “concluded that a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment [to the United States Constitution] as cruel and unusual punishment.” (Footnote omitted.) Code Ga. § 26-2001 (1972), the statute under which Coker was convicted provides for alternative penalties to the death sentence. Coker’s punishment was determined by a jury in a separate sentencing proceeding under Ga.Code Ann. § 26-3102 (1976 Supp.), which is very similar to the bifurcated procedure provided under La. Code Crim.P. arts. 905, et seq., under which the instant defendant was sentenced. The Court in Coker limited its grant of certiora-ri only to the issue of constitutionality of the death penalty in that case, found the sentence unconstitutional, and remanded the case to the Georgia Supreme Court for further proceedings. The Georgia Supreme Court in turn remanded the case to the Georgia trial court for resentencing. Coker v. State, 239 Ga. 408, 238 S.E.2d 690 (1977). Coker’s conviction for aggravated rape was not overturned; only his death sentence was vacated.

In the instant case, defendant was not sentenced to death but contends that, under Coker, his conviction should be vacated. He argues that the nullity of the death penalty provision of La.R.S. 14:42 (1975) renders the entire statute invalid, as well as the bifurcated procedure set forth in La.Code Crim.P. arts. 905, et seq., as applied to aggravated rape cases. He argues that the articles providing for the bifurcated procedure would not have been enacted for aggravated rape cases unless the death penalty were available for such convictions. Alternatively, he argues that the proper sentence in the instant case is the sentence provided in La.R.S. 14:43 for simple rape, or, in the further alternative, the sentence provided in La.R.S. 14:27 for attempt of a crime punishable by death or life imprisonment. We find no merit to these arguments.

In Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), the United States Supreme Court held unconstitutional Louisiana’s mandatory death sentence for first degree murder. In accordance with that decision, this court affirmed convictions in first degree murder cases presenting no otherwise reversible error, but vacated the death sentences and remanded the cases to the trial court for resentencing of the accuseds to the most severe valid penalty established by the legislature for criminal homicide at the time of the offense. See State v. Sheppard, 350 So.2d 615 (La.1977); State v. Williams, 343 So.2d 1026 (La.), cert. denied, 434 U.S. 928, 98 S.Ct. 412, 54 L.Ed.2d 287 (1977); State v. Jenkins, 340 So.2d 157 (La.1976).

In Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), the United States Supreme Court declared unconstitutional Louisiana’s mandatory death penalty for aggravated rape. Since Selman, in cases where defendants have been convicted of aggravated rape and sentenced to death, this court under the mandate of Selman has set aside and vacated the death sentences but, finding no reversible error, has affirmed the convictions. These cases were remanded to the trial court for resentencing of defendants to the most serious penalty for a lesser included offense at the time of commission of the crime. See State v. Craig, 340 So.2d 191 (La.1976); State v. Lee, 340 So.2d 180 (La.1976); State v. Sledge, 340 So.2d 205 (La.1976).

However, in the instant case, La.R.S. 14:42 (1975) and La.Code Crim.P. art. 905.6 provide for alternative penalties, death or life imprisonment without benefit of probation, parole or suspension of sentence. The instant situation is thus analagous to those of many cases reviewed by this court after the United States Supreme Court decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In Furman, the Supreme Court invalidated the death sentence provided by a Georgia statute and imposed similarly to the death penalty provided by the then effective La.R.S. 14:42 (1950). Also effective at that time was La.Code Crim.P. art. 817 (1966), which allowed a jury in a capital case to “qualify its verdict of guilty with the addition of the words ‘without capital punishment,’ in which case the punishment [was to be] imprisonment at hard labor for life.” Hence, the effect of these two provisions was to give the jury a choice in sentencing between death and life imprisonment, as in the instant case under La.R.S. 14:42 (1975) and La.Code Crim.P. art. 905.6. Upon review of such post-Furman cases, this court affirmed convictions presenting no otherwise reversible error and remanded the cases to the trial court for resentencing of the accuseds to life imprisonment, the alternative sentence provided by La.Code Crim.P. art. 817 (1966). See, e. g., State v. Baker, 288 So.2d 52 (La.1973); State v. Richmond, 284 So.2d 317 (La.1973); State v. Refuge, 270 So.2d 842 (La.1972); State v. Franklin, 263 La. 344, 268 So.2d 249 (1972).

Under the rationale of these cases, we find that the invalidity of the death penalty provision of La.R.S. 14:42 (1975) does not render invalid that entire statute and La.Code Crim.P. arts. 905, et seq., as applied to the instant aggravated rape case. We further find that the proper sentence in the instant case is life imprisonment without benefit of probation, parole or suspension of sentence, the alternate sentence provided by La.Code Crim.P. art. 905.6. Since defendant was not sentenced to death, but was in fact sentenced to life imprisonment without benefit of probation, parole or suspension of sentence, no resen-tencing is necessary.

We likewise find no merit to defendant’s contention that La.R.S. 14:42 (1975) is unconstitutionally vague and overbroad. He argues that the law is ambiguous because there is virtually no difference between the elements of the crime of forcible rape (La.R.S. 14:43.1) and the crime of aggravated rape with which he was charged. This argument was previously rejected by this court in State v. Fletcher, 341 So.2d 340 (La.1976):

[La.R.S. 14:43.1] merely created a lesser degree of the crime, permitting a responsive verdict, La.C.Cr.P. art. 814, subd. A(8) (as amended in 1975), to the charge of aggravated rape, La.R.S. 14:42. It does not, as defendant contends, repeal or make ambiguous the more serious offense of aggravated rape defined by Subsection (2) of the latter statute — punishing sexual intercourse without the lawful consent of the female since committed ‘Where [she] is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.’1 (Footnote omitted.)

We adhere to this decision.

For the reasons assigned, we find the trial court did not err in denying defendant’s motion .to quash the indictment and motion in arrest of judgment.

Assignments of Error Nos. 1 and 49 are without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

Defendant contends the trial judge erred in not requiring the state to disclose and produce all tangible items it intended to introduce in evidence, any tests made upon such items, and the results thereof in response to his motion for a bill of particulars and motion to produce.

It has been held that the defense is not entitled to pretrial discovery of descriptions of physical objects, results of tests made thereon, and the objects themselves except in certain limited exceptions are not present here. State v. Thornton, 351 So.2d 480 (La.1977); State v. Ball, 328 So.2d 81 (La.1976); State v. White, 321 So.2d 491 (La.1975); State v. Collins, 308 So.2d 263 (La.1975). La. Acts 1977, No. 515, providing for more liberal discovery in criminal cases, was not in effect at the time of filing of the motions herein and rulings thereon. Hence, this statute has no possible application here. The trial judge did not err in not compelling the state to disclose and produce the information and physical evidence requested prior to trial.

Assignments of Error Nos. 2 and 3 are without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in denying his motion to suppress physical evidence. He argues that the evidence was recovered as a result of an unconstitutional search of an automobile and illegal arrests of one Ira Lee Loyd and defendant. Therefore, the evidence was inadmissible as “fruit of the poison tree.”

At a pretrial suppression hearing, four police officers testified concerning the search of the automobile and arrests of Loyd and defendant. Their testimony reflects the following circumstances surrounding the search and arrests.

About 1:00 a. m., October 19, 1976, Officers Murphy and May in one police vehicle and Officers Lott and Foster in another received a radio broadcast concerning a complaint of a disturbance in Bossier City. The complaint had been made by an off-duty police officer, residing in the vicinity, who told the police that two black males had been causing the disturbance in connection with an automobile stuck in a ditch. Upon arrival at the scene of the disturbance, the officers found an automobile situated partially in a ditch and partially in the road; the two black males were not present. The complainant informed the officers of the direction in which the two black males had left the scene on foot. The officers ran a check of the automobile’s license number and found that the license was registered for a different vehicle. They then ran a check on the vehicle identification number and received information that the automobile had been reported stolen from Shreveport the previous day. Officers Lott and Foster then left the scene in search of the suspects, following the directions given by the complainant. Officers Murphy and May looked inside the car and saw a wallet on the rear seat. The wallet contained a social security card bearing Ira Lee Loyd’s name. This information was relayed by radio to Officers Lott and Foster, who, shortly thereafter, saw two black males on foot about one-half mile from the scene of the disturbance. Officers Murphy and May joined the others. The officers asked the suspects their names; one identified himself as Ira Lee Loyd, and the other was defendant. Loyd and defendant were then advised of their Miranda rights and arrested for automobile theft. Subsequently, evidence related to the instant offense was seized from the persons of the two suspects and was found in the vicinity of their apprehension.

Defendant asserts standing to contest the search of the vehicle under La.Const. art. 1, § 5. He argues that the search of the automobile was unconstitutional, requiring suppression of the wallet and social security card. He then argues that the trial court could not properly consider the inadmissible wallet and information obtained therefrom in determining probable cause to arrest Loyd and defendant; and, hence, without this information, probable cause did not exist for the arrests. Defendant further argues that no probable cause existed for the arrests even if the information obtained from the wallet may properly be considered. He thereby reasons that the physical evidence subsequently , recovered as a result of the unconstitutional search and illegal arrests was inadmissible as “fruit of the poison tree.”

La.Const. art. 1, § 5, provides in pertinent part:

Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. (Emphasis supplied.)

Even assuming arguendo that defendant has standing to contest the search of the vehicle, there is no merit to his contention. Prior to searching the automobile, the police officers had received reliable information that the license plate on the car was registered for a different vehicle and that the car had been reported stolen. The automobile was stuck in a ditch, partially blocking the road. The officers were justified in taking possession of the vehicle and making at least a generalized search of its interior in order to secure information which might lead to the identification of the thief. The wallet was found on the rear seat of the automobile during such a search. Under the circumstances, we find that the search of the vehicle was reasonable; the trial judge properly considered the information thereby obtained in assessing probable cause to arrest Loyd and defendant.

We further find that probable cause existed for the arrests.

La.Code Crim.P. art. 215.1 A provides:

A law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or a misdemeanor and may demand of him his name, address and explanation of his actions. (Emphasis supplied.)

La.Code Crim.P. art. 215.1, as well as federal and state jurisprudence, recognizes the right of a law enforcement officer to temporarily detain and interrogate a person whom he reasonably suspects is committing, has committed or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Robinson, 342 So.2d 183 (La.1977); State v. Pe rique, 340 So.2d 1369 (La.1976); State v. Dixon, 337 So.2d 1165 (La.1976); State v. Cook, 332 So.2d 760 (La.1976); State v. Rogers, 324 So.2d 403 (La.1975); State v. Jefferson, 284 So.2d 882 (La.1973). We have held that reasonable cause for an investigatory detention is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from government interference. State v. Robinson, supra; State v. Perique, supra; State v. Dixon, supra; State v. Cook, supra; State v. Weathers, 320 So.2d 892 (La.1975).

La.Code Crim.P. art. 213 provides in pertinent part:

A peace officer may, without a warrant, arrest a person when:
(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer

Reasonable cause, which we have treated under this article as consonant with the probable cause concept, exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Robertson, No. 60,909, 358 So.2d 931 (La., April 10, 1978); State v. Williams, 349 So.2d 286 (La.1977); State v. Robinson, supra; State v. Marks, 337 So.2d 1177 (La.1976). Probable cause may be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Robertson, supra; State v. Williams, supra; State v. Robinson, supra; State v. Marks, supra; State v. Sarrazin, 291 So.2d 393 (La.1974). Compliance with these standards is in the first instance a substantive determination to be made by the trial judge from the facts and circumstances of the case. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. Robertson, supra; State v. Williams, supra; State v. Robinson, supra; State v. Marks, supra; State v. Warren, 283 So.2d 740 (La.1973).

In the instant case, the officers were informed by the complainant that two black males had abandoned the vehicle and left the scene of the disturbance on foot. The officers knew that the license plate on the vehicle had been switched and that the vehicle was stolen. Upon seeing two black males on foot shortly thereafter in the vicinity, the officers had reasonable cause sufficient to detain the men for the purpose of asking their names. La.Code Crim.P. art. 215.1 A. The officers knew that Ira Lee Loyd’s wallet had been found in the stolen automobile. Once Loyd identified himself, the facts and circumstances known to the arresting officers and of which they had reasonably trustworthy information were sufficient to justify their belief that Loyd and his companion (defendant) had committed a crime (automobile theft). Hence, probable cause existed for the arrests. La.Code Crim.P. art. 213.

Having found that the search of the vehicle and the arrests were validly made, the evidence subsequently seized from the persons of Loyd and defendant and found in the vicinity of their apprehension was admissible. It was not “fruit of the poison tree.” Hence, the trial judge did not err in denying defendant’s motion to suppress the evidence.

Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial court erred in admitting hearsay testimony at the suppression hearing concerning a police radio broadcast that an automobile had been reported stolen.

First, no objection was made to this testimony at the hearing. In the absence of a contemporaneous objection, an alleged irregularity or error cannot be availed of after verdict. La.Code Crim.P. art. 841; State v. Robertson, No. 60,909, 358 So.2d 931 (La., April 10, 1978); State v. Williams, 343 So.2d 1026 (La.), cert. denied, 434 U.S. 928, 98 S.Ct. 412, 54 L.Ed.2d 287 (1977); State v. Finley, 341 So.2d 381 (La.1976); State v. Knight, 323 So.2d 765 (La.1975).

In any event, a well-settled rule is that evidence is nonhearsay which is offered not to prove the truth of the facts recited, but to prove that the utterances occurred. State v. Mitchell, 356 So.2d 974 (La.1978); State v. Cass, 356 So.2d 936 (La.1977); State v. Williams, 341 So.2d 370 (La.1976); State v. Monk, 315 So.2d 727 (La.1975); State v. White, 301 So.2d 321 (La.1974). In the instant case, the testimony concerning the radio broadcast that an automobile had been reported stolen was offered to show probable cause for an initial arrest of defendant for automobile theft and to prove only that such a report had been made, thereby prompting the officers to arrest defendant. It was not offered to prove the truth of the report. Hence, the trial court did not err in admitting the testimony in evidence at the pretrial suppression hearing.

Assignment of Error No. 5 is without merit.

ASSIGNMENTS OF ERROR NOS. 6 AND 7

Defendant contends the trial judge erred in sustaining the state’s objection to his examination of prospective juror Hayes on voir dire concerning his opposition to the death penalty (Assignment of Error No. 6) and in restricting his voir dire examination of prospective jurors by prohibiting him from posing a certain hypothetical question (Assignment of Error No. 7).

First, the record reveals that defendant’s challenge for cause of prospective juror Hayes was sustained by the trial judge. Hence, the issue raised by Assignment of Error No. 6 is moot.

Further, we find no merit to Assignment of Error No. 7. After examining prospective juror Harris on voir dire relative to his sentiments concerning the imposition of the death penalty, the state challenged the juror for cause. Prior to ruling on the challenge by the trial judge, defendant asked the juror whether he would consider imposing the death penalty if a life were in fact taken during the aggravated rape. The juror answered in the affirmative. Defendant then objected to the state’s challenge for cause. He argued that the hypothetical question assuming a life was taken during the aggravated rape was relevant for the purpose of determining whether the prospective juror could impose the death penalty under certain circumstances. The state objected to the use of the hypothetical question on the ground that no life was in fact taken in the instant case. The trial judge sustained the state’s objection, which ruling is the subject of this assignment of error.

The ruling of the trial judge was correct. While defendant should be afforded wide latitude on voir dire in a capital case to explore a prospective juror’s sentiments relative to the death penalty, we do not consider that it was proper for defendant to have assumed a fact (i. e., a life was taken during the aggravated rape) in his hypothetical question, which was not true in the instant case.

In any event, the hypothetical question which defendant wished to ask prospective jurors was obviously intended to aid in selecting a jury which, if it found defendant guilty of aggravated rape, would not recommend the death penalty. Since the jury actually selected did not recommend the death penalty, defendant was not prejudiced by the trial court’s prohibition against the use of the hypothetical question in examining prospective jurors.

Assignments of Error Nos. 6 and 7 are without merit.

ASSIGNMENTS OF ERROR NOS. 8, 9, 10, 11, 12, 14, 15, 16, 18 AND 19

Defendant contends the trial judge erred when he sustained the state’s challenges for cause of ten prospective jurors based on their sentiments regarding the death penalty.

At the outset, we note that in Assignment of Error No. 9, defendant contends that the state challenged juror Hayes for cause. The record, however, reflects that defendant, not the state, challenged this juror for cause and that the challenge was sustained. Hence, this assignment of error is without merit.

We also find that the state’s challenges for cause of the other nine jurors were properly allowed by the trial judge. La. Code Crim.P. art. 798 provides in pertinent part:

It is good cause for challenge on the part of the state, but not on the part of the defendant, that:
(2) The juror tendered in a capital case who has conscientious scruples against the infliction of capital punishment and makes it unmistakably clear (a) that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (b) that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant’s guilt .

This article was amended to conform with the decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), wherein the United States Supreme Court held that “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.” (Footnote omitted.) On the other hand, the Court found no constitutional bar to excluding jurors who stated in advance of trial that they could not even consider returning a verdict of death or that their attitude about the death penalty would prevent them from making an impartial decision as to defendant’s guilt.

After carefully examining the record on voir dire examination, we are satisfied that each of the nine jurors, after questioning by both the state and defendant, were properly excused in strict compliance with the standards set out in Wither-spoon and La.Code Crim.P. art. 798(2). The responses made by these prospective jurors clearly indicated that, because of their conscientious scruples against the infliction of capital punishment, they would automatically vote against the imposition of capital punishment without regard to any evidence that might have developed in the trial on the issue of guilt, or at the sentencing hearing in the event of conviction, or that their attitudes toward the death penalty would prevent them from making an impartial decision as to defendant’s guilt.

Moreover, the jury did not recommend and the trial court did not impose the death penalty. Defendant does not have a valid complaint of a Witherspoon violation. State v. James, 339 So.2d 741 (La.1976); State v. Rester, 309 So.2d 321 (La.1975); State v. Adams, 302 So.2d 599 (La.1974); State v. Fallon, 290 So.2d 273 (La.1974). Further, the death penalty provision of La. R.S. 14:42 (1975) is no longer valid. See Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). We have uniformly held that a defendant insulated from the death penalty has no valid Witherspoon complaint. State v. Mitchell, 356 So.2d 974 (La.1978); State v. Ross, 343 So.2d 722 (La.1977); State v. Hunter, 340 So.2d 226 (La.1976); State v. Miles, 339 So.2d 735 (La.1976).

Assignments of Error Nos. 8, 9,10,11,12, 14, 15, 16, 18 and 19 are without merit.

ASSIGNMENT OF ERROR NO. 17

Defendant contends the trial judge erred in denying his motion for a mistrial made during the voir dire examination of a prospective juror who made a prejudicial remark in the presence of prospective jurors.

One of the prospective jurors was a former police officer. The state asked him if his former employment would render him incapable of being a fair and impartial jur- or. He replied, “Well, as far as I see, there’s some doubt in my mind as to whether or not [defendant] is guilty. If he wasn’t guilty, he wouldn’t be up here.” Defendant challenged the juror for cause and moved for a mistrial. The trial judge granted the challenge for cause, but denied the motion for a mistrial. He immediately admonished the jurors to disregard the remark.

Voir dire examination of prospective jurors is designed to discover bases for challenges for cause and to secure information for an intelligent exercise of peremptory challenges. State v. Hutto, 349 So.2d 318 (La.1977); State v. Ford, 349 So.2d 300 (La.1977); State v. Sheppard, 263 La. 379, 268 So.2d 590 (1972). The question propounded by the state to the prospective juror in the instant case was designed to determine any potential adverse influence on his ability to render an impartial verdict. Although the prospective juror’s response provided a justifiable basis for the exercise of a challenge for cause, it did not warrant the declaration of a mistrial. Mistrial is a drastic remedy to be sparingly granted and is only authorized in specified instances where unnecessary prejudice results to an accused. State v. Hutto, supra; State v. Governor, 331 So.2d 443 (La.1976); State v. Sylvester, 298 So.2d 807 (La.1974); State v. Clouatre, 262 La. 651, 264 So.2d 595 (1972). The trial judge immediately admonished the prospective jurors to disregard the remark. No showing was made that the response of the excused juror to the state’s inquiry affected the other jurors. Nor do we find that any undue prejudice resulted therefrom. We consider that the prospective juror’s response was an unsolicited answer to the state’s question directed toward discovering the ability of the juror to render a fair and impartial verdict. Therefore, the trial judge did not err in denying defendant’s motion for a mistrial.

Assignment of Error No. 17 is without merit.

ASSIGNMENTS OF ERROR NOS. 20 AND 21

Defendant contends the trial judge erred in denying his motion to quash the indictment and motion for a mistrial on the ground that he was denied the right to trial by a jury representing a fair cross-section of the community. He argues first that the fourth petit jury venire was improperly selected. Secondly, he argues that, after questioning on their qualifications, no blacks remained among the qualified members of the third and fourth petit jury ve-nires.

To support a challenge made to the composition of a jury venire, the defendant must demonstrate that the state has not complied with the statutory procedures for the selection of the venire or that there has been systematic discrimination affecting a class of persons in the selection of the jury panel. State v. Taylor, 347 So.2d 172 (La.1977).

First we address the issue presented by defendant’s contention that the fourth petit jury venire was improperly selected. In the instant case, several petit jury venires had to be called in order to select a jury panel. On the fourth day of voir dire examination, the trial judge ordered the summoning of tales jurors from among bystanders as provided in La.Code Crim.P. art. 785(D). Defendant argues that this method of selection of tales jurors was improper.

There is no merit to this contention. In State v. Monk, 315 So.2d 727 (La.1975), this court stated:

Article 785(D) clearly authorizes the trial judge to order the summoning of tales jurors from among the bystanders or persons in or about the courthouse ‘in place of the drawing of tales jurors.’ The Official Revision Comment in paragraph (e) states that, under this article, ‘in parishes other than Orleans, the court has unrestricted authority to summon bystanders as tales jurors. In some sparsely populated areas of the state, the use of bystanders as jurors is preferable to summoning tales jurors who might reside at a far distance from the court.’ Permitting the selection of tales jurors from among bystanders or persons in or about the courthouse is not violative of the right to an impartial jury. See State v. McGuire, 254 La. 560, 225 So.2d 215 (1969); State v. Ferguson, 240 La. 593, 124 So.2d 558, cert. denied, 366 U.S. 913, 81 S.Ct. 1089, 6 L.Ed.2d 237 (1960).

Similarly, we find that this method of selection of tales jurors is not per se violative of defendant’s right to trial by a jury representing a fair cross-section of the community-

We next consider the issue concerning the absence of blacks from the third and fourth petit jury venires. Defendant merely argues that all black members of these two venires were excused on the basis that they were not qualified to serve as jurors. Yet, he does not allege that they were wrongfully or systematically excluded. Defendant has failed to demonstrate the systematic exclusion of blacks from the jury venires required to challenge successfully the composition of the jury panel on such a basis. State v. Lewis, 353 So.2d 703 (La.1977); State v. Taylor, supra.

For the reasons assigned, the trial judge did not err in denying defendant’s motion to quash the indictment and motion for a mistrial.

Assignments of Error Nos. 20 and 21 are without merit.

ASSIGNMENTS OF ERROR NOS. 22 AND 23

Defendant contends the trial judge erred in denying his challenges for cause of three prospective jurors, Messrs. Peebles, Stacks and Braddock. He argues that the prospective jurors were not impartial. Defendant exercised a peremptory challenge against Mr. Braddock and exhausted his peremptory challenges before completion of the panel. La.Code Crim.P. art. 800.

This court has repeatedly held that the trial judge is vested with broad discretion in ruling on challenges for cause and that only where it appears, upon review of the voir dire examination as a whole, that the judge’s exercise of that discretion has been arbitrary or unreasonable, resulting in prejudice to the accused, will this court reverse the ruling of the trial judge. State v. Sheppard, 350 So.2d 615 (La.1977); State v. Passman, 345 So.2d 874 (La.1977); State v. Weathers, 320 So.2d 895 (La.1975).

During voir dire examination, both the state and defendant extensively questioned Messrs. Peebles, Stacks and Braddock. Each of these three jurors clearly indicated that they could serve as a fair and impartial juror in the instant case. After carefully reviewing the record, we áre satisfied that the testimony on voir dire of each juror, taken as a whole, does not support defendant’s contention that the trial judge abused his discretion in denying defendant’s challenges for cause of these three jurors.

Assignments of Error Nos. 22 and 23 are without merit.

ASSIGNMENT OF ERROR NO. 24

Defendant contends the trial judge erred in denying his motion to quash the indictment and motion for a mistrial based upon the state’s use of peremptory challenges to exclude black prospective jurors allegedly in violation of his rights to due process and equal protection under the law.

The United States Supreme Court, in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), has held that an accused is not denied the equal protection of the law when the state, through the use of its peremptory challenges, prevents blacks from serving on the jury unless he can prove systematic exclusion over a period of time. This court has adopted those views expressed in Swain and has refused to find a denial of equal protection unless this historical pattern of systematic exclusion is demonstrated. State v. Sheppard, 350 So.2d 615 (La.1977); State v. Johnson, 343 So.2d 155 (La.1977); State v. Bennett, 341 So.2d 847 (La.1976); State v. Haynes, 339 So.2d 328 (La.1976). Defendant has not made the requisite showing in this case. Accordingly, the trial judge did not err in denying defendant’s motion to quash the indictment and motion for a mistrial predicated upon this ground.

Assignment of Error No. 24 is without merit.

ASSIGNMENTS OF ERROR NOS. 26 AND 30

Defendant contends the trial judge erred in overruling his objections to certain questions asked by the state of the rape victim. He argues that the questions were leading and that one question assumed facts not in evidence.

During the state’s direct examination of the rape victim, she testified that the first rapist placed a rag over her face and that it seemed like a washcloth with a rough texture. She also stated that, after the first rapist had sexual intercourse with her, he gave her the washcloth to clean herself; then she was raped again by another man. The state showed the victim a washcloth and asked, “Would you examine that from the texture and see if that appears to be — ” Defendant interrupted, objecting to the question, the first at issue, as leading. The trial judge asked the state what it intended to ask. The state replied, “If that appears to have the same texture as the cloth that was put over her face.” Defendant’s objection was overruled, and the state was allowed to ask the question. The victim answered in the affirmative.

Also during the direct examination of the victim, the state asked:

Is the man who got in your car with the gun on the North Market Street Shopping Center who drove you to an isolated dead end street on Dorian Terrace, who while holding a gun on you had sexual intercourse with you against your will and after having done so inserted the barrel of a gun—

Defendant interrupted the question, the second at issue, and objected on the grounds that it was leading and assumed facts not in evidence. The trial judge sustained the objection and instructed the state not to lead the witness or state facts not yet proven. Subsequently, the state asked the witness, “Would you tell the Jury what [the rapist] did [with the gun] please?” Defendant objected to the question, the third at issue, as leading. The objection was overruled, and the witness testified that “he spread my legs apart and shoved the gun inside of me” and “moved it back and forth.”

First, we address defendant’s contention that the questions were leading. It is well settled that, while counsel should not be permitted to mold testimony of a witness, a verdict should only be disturbed on that ground where there was a clear abuse calculated to prejudice the rights of the accused. State v. Sheppard, 350 So.2d 615 (La.1977); State v. Terregano, 336 So.2d 859 (La.1976); State v. Washington, 294 So.2d 794 (La.1974).

At the outset, we find that the third question at issue was not leading. Secondly, even if the first two questions at issue had been improper, defendant has not demonstrated wherein he was prejudiced nor that the questions were calculated to prejudice his rights. A rape victim is necessarily a very sensitive witness, and the state must sometimes pose very embarrassing questions. It is often difficult to place evidence before the jury in such cases while adhering strictly to the rules on the form of questioning. We do not consider that the state in the instant case posed the questions at issue by design to prejudice defendant’s rights nor that defendant was in fact prejudiced. Hence, the trial judge did not err in overruling defendant’s objections that the questions were leading.

Also, we find to be without merit defendant’s contention that the second question at issue presents reversible error because it assumed a fact not in evidence. See La.R.S. 15:278. Defendant interrupted the question before the pertinent information was stated. His objection to the question was sustained and he requested no further relief. The trial judge committed no error in handling this matter. In any event, the pertinent information was subsequently related by the rape victim herself.

Assignments of Error Nos. 26 and 30 are without merit.

ASSIGNMENT OF ERROR NO. 27

Defendant contends the trial judge erred in overruling his objection to the victim’s in-court identification of defendant as her rapist on the ground that it was unduly suggestive.

During trial, the state asked the rape victim if the rapist was present in court. Defendant objected to an in-court identification on the ground that he was one of only two black men in the courtroom and was the only black man seated at counsel table. He requested an in-court lineup identification. The trial judge overruled the objection and did not allow the in-court lineup'. Subsequently, the victim identified defendant as the rapist. On cross-examination, defendant questioned her extensively concerning her ability to see the rapist before, during and after the offense.

In State v. Johnson, 343 So.2d 155 (La.1977), this court stated:

. It is true that the conspicuous display of the defendant alone in the accusatorial spotlight might dispel the doubts of some uncertain witnesses. However, ‘ . . . this circumstance does not indicate or unduly suggest to the witness that defendant committed the crime, only that he is charged with its commission.’ State v. Daniels, 326 So.2d 340, 343 (La.1976). In Daniels, supra, and State v. Brooks, 294 So.2d 503 (La.1974), the court suggested that counsel’s right to cross-examine and question the weight to be given identification testimony was sufficient to remedy any suggestion inherent in the in-court identification process. State v. Boettcher, 338 So.2d 1356 (La.1976).
State v. Boettcher, supra, and State v. Jackson, 338 So.2d 1363 (La.1976), held that a trial judge has the discretion to grant an accused’s request for a pretrial line-up, but did not alter the rule that a defendant is not entitled to an in-court line-up. The decision whether such a protective measure is required is entrusted to the trial court’s discretion:
‘The trial court likewise has broad discretion to order protective measures other than a pretrial line-up, such as by seating the defendant elsewhere than in the normal place of an accused in the courtroom.’ State v. Boettcher, 338 So.2d 1356, 1361.

In the instant case, the fact that defendant was the only black man seated at counsel table does not render the in-court identification inadmissible, although this factor is one to be considered by the jury in weighing the testimony of the in-court identification. See State v. Daniels, 326 So.2d 340 (La.), cert. denied, 429 U.S. 846, 97 S.Ct. 128, 50 L.Ed.2d 117 (1976). Defendant had ample opportunity to extensively cross-examine the victim, a sufficient remedy to any suggestion inherent in the in-court identification process. See State v. Johnson, supra; State v. Daniels, supra. Hence, the trial judge did not err in overruling defendant’s objection to the in-court identification as conducted.

For the first time in brief, defendant raises a new contention, i. e., that the in-court identification was solely dependent upon a pretrial lineup identification, the validity of which was not proven at trial. La.Code Crim.P. art. 841 provides that an irregularity or error cannot be availed of after verdict unless the defendant has made known to the court his objection and the grounds therefor. A new basis for an objection cannot be raised for the first time on appeal. State v. Fowlkes, 352 So.2d 208 (La.1977); State v. Williams, 343 So.2d 1026 (La.), cert. denied, 434 U.S. 928, 98 S.Ct. 412, 54 L.Ed.2d 287 (1977); State v. Marks, 337 So.2d 1177 (La.1976). In any event, after review of the pertinent portion of the record, we find no merit to the new contention.

Assignment of Error No. 27 is without merit.

ASSIGNMENT OF ERROR NO. 28

Defendant contends the trial judge erred in overruling his objection to a question asked by the state of a witness on redirect examination. He argues that the subject matter was beyond the scope of cross-examination.

During trial, Charles Burton testified as a state witness. On redirect examination, the state asked him if his residence was in Caddo Parish. Defendant objected on the ground that he had not cross-examined the witness on that matter. The trial judge overruled the objection. However, the state did not repeat the question; and the witness did not answer it. The state tendered the witness for recross-examination by defendant. Defendant apparently chose not to recross-examine the witness.

We find no merit to this assigned error. In State v. Sneed, 328 So.2d 126 (La.1976), this court stated:

. Notwithstanding the arguable contention that the redirect examination was beyond the direct and cross-examination, the application of the rule which confines redirect examination of a witness to the subject matter of the cross-examination and to the explanation of statements elicited on cross-examination is within the discretion of the trial judge. La.R.S. 15:281. Since defense counsel was not denied the opportunity to recross on the new matter alleged to have been brought out on redirect, there was no abuse of the discretion vested in the trial judge. State v. Watson, 301 So.2d 653 (La.1974); State v. Daniels, 262 La. 475, 263 So.2d 859 (1972), cert. denied, 410 U.S. 944, 93 S.Ct. 1378, 35 L.Ed.2d 610.

We find that the trial judge did not err in overruling defendant’s objection to the question asked by the state to Mr. Burton on redirect examination. Moreover, Mr. Burton did not answer the question; therefore, defendant suffered no prejudice.

Assignment of Error No. 28 is without merit.

ASSIGNMENT OF ERROR NO. 29

Defendant contends the trial judge erred in overruling his objection to certain testimony of a state witness on the ground that it constituted hearsay.

During trial, Mrs. Verdell Burton testified that a little girl, about six years old, rang her door bell between 9:30 and 10:00 p. m. on the night of the alleged rape. She stated that, when her husband answered the door, the girl asked him to call the police because her mother was locked inside a car trunk and her younger brother and sister were alone on the front seat of the car. Mrs. Burton then testified that she called the police. Defendant objected to any hearsay testimony; the trial judge overruled the objection. Mrs. Burton further testified that she told the police to hurry because there was a baby in the car. On cross-examination, defendant asked Mrs. Burton if the girl had said anything more. The witness replied:

She told us the children was there. She said, ‘My mother told me to come to your house and ask for help. And this is where we saw a light.’ She went on to say other things that her mother had told her to come and say.

Mrs. Burton did not elaborate; she never mentioned the rape in her testimony.

At the outset, we note that the testimony at issue did not constitute hearsay. Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. State v. King, 355 So.2d 1305 (La.1978); C. McCormick, Evidence, § 246 (Cleary ed. 1972). A well-known rule is that evidence is non-hearsay which is offered not to prove the truth of the facts recited, but to prove that the utterance occurred. State v. Mitchell, 356 So.2d 974 (La.1978); State v. Cass, 356 So.2d 936 (La.1977); State v. Williams, 341 So.2d 370 (La.1976); State v. Monk, 315 So.2d 727 (La.1975); State v. White, 301 So.2d 321 (La.1974). The testimony of Mrs. Burton was not hearsay because, although it related the statement of a third person, it was offered to prove that the utterance occurred, thereby prompting her to call the police, and not to prove the truth of the statement of the third person, i. e., that the child’s mother was locked inside a car trunk and her younger siblings were alone in the car. Moreover, although on cross-examination defendant invited further testimony concerning the child’s statements, Mrs. Burton’s testimony in no way referred to the alleged rape.

In any event, even had the testimony constituted hearsay, the child’s statements were admissible as part of the res gestae. Res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before and after commission of crime but also includes testimony of witnesses and police officers pertaining to what they heard or observed before, during, or after the commission of the crime if the continuous chain of events is evident under the circumstances. La.R.S. 15:447 and 448; State v. Batiste, 318 So.2d 27 (La.1975); State v. Morgan, 296 So.2d 286 (La.1974); State v. Edwards, 287 So.2d 518 (La.1973); State v. Curry, 263 La. 997, 270 So.2d 484 (1972); State v. Sercovich, 246 La. 503, 165 So.2d 301 (1964). Specifically, a plea for help by the witness of a crime has been held to be part of the res gestae and allowed to be related at trial by the person whose aid was sought. State v. Sneed, 328 So.2d 126 (La.1976). Hence, Mrs. Burton was properly allowed to testify as to the statements made by the victim’s daughter when she sought aid for her mother. These statements were clearly part of the res gestae.

In sum, the trial judge did not err in overruling defendant’s objection to the testimony. Assignment of Error No. 29 is without merit.

ASSIGNMENTS OF ERROR NOS. 32, 34, 35, 37, 38, 39 AND 50

Defendant contends the trial judge erred in allowing the admission of certain items of physical evidence. He argues first that some of this evidence was irrelevant and, secondly, that the state failed to lay the proper foundation for the admission of all of the items.

This court has consistently held that the trial judge is vested with wide discretion in determining the relevancy of evidence, and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. King, 355 So.2d 1305 (La.1978); State v. Russell, 352 So.2d 1289 (La.1977); State v. George, 346 So.2d 694 (La.1977); State v. Owens, 301 So.2d 591 (La.1974); State v. Ackal, 290 So.2d 882 (La.1974). In the instant case, testimony at trial linked each of the items introduced in evidence to either defendant or his co-participant in the rape. Because each was relevant to the offense, the trial judge did not err on this basis in admitting the evidence. State ex rel. Clark v. Marullo, 352 So.2d 223 (La.1977).

Defendant’s contention that the state failed to lay a proper foundation for admission of the evidence is also without merit. To admit demonstrative evidence at 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 was offered in evidence. State v. Robertson, No. 60,909, 358 So.2d 931 (La., April 10, 1978); State v. King, supra; State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), cert. denied, 409 U.S. 913, 93 S.Ct. 242, 34 L.Ed.2d 173 (1972). For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is the one connected with the case. State v. Robertson, supra; State v. King, supra; State v. Williams, 341 So.2d 370 (La.1976); State v. Collins, 328 So.2d 674 (La.1976). Lack of positive identification goes to the weight of the evidence rather than to its admissibility. Ultimately, connexity is a factual matter for determination by the jury. State v. Robertson, supra; State v. King, supra; State v. Hayes, 306 So.2d 705 (La.1975); State v. Freeman, 306 So.2d 703 (La.1975); State v. Dotson, supra; State v. Wright, 254 La. 521, 225 So.2d 201 (1969).

After reviewing the record, we find that the state laid an adequate foundation for admission of each item in evidence by showing that it was more probable than not that each item was connected with the case. Hence, the trial judge did not err in admitting the items in evidence.

Assignments of Error Nos. 32, 34, 35, 37, 38, 39 and 50 are without merit.

ASSIGNMENT OF ERROR NO. 33

Defendant contends the trial judge erred in overruling his objection to a question asked by the state of an expert witness on the ground that it was irrelevant.

During trial, Lt. William Jordan testified as an expert in the field of fingerprint identification. On cross-examination, defendant asked if he had found latent prints in a stolen car matching those of a certain man. Lt. Jordan replied in the negative. Defendant then asked, “. . . [CJould a man drive a car like this Pontiac, for an extended period of time without wearing gloves, and fail to leave prints somewhere on the vehicle?” The witness answered in the affirmative.

Later during trial, Lt. Jimmy McEachern was accepted, without objection by defendant, as an expert in the field of fingerprint identification. On direct examination, he testified that he had examined the rape victim’s automobile, allegedly driven by defendant, but found no latent prints matching those of defendant. The state then asked, “Is it possible, in your opinion, that Mr. Drew could have operated that vehicle and not left prints which could have been obtained — ” Defendant objected to the question on the ground that it was irrelevant. The trial judge overruled the objection. The witness subsequently answered the question in the affirmative.

La.R.S. 15:441 provides:

Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.
Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.

This court has consistently held that the trial judge is vested with wide discretion in determining the relevancy of evidence, and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. King, 355 So.2d 1305 (La.1978); State v. Russell, 352 So.2d 1289 (La.1977); State v. George, 346 So.2d 694 (La.1977); State v. Owens, 301 So.2d 591 (La.1974); State v. Ackal, 290 So.2d 882 (La.1974).

In the instant case, defendant himself had asked a similar question of another expert witness. The fact that Lt. McEac-hern found no latent prints in the victim’s automobile matching those of defendant was a relevant fact tending to negative the commission of the offense. The question asked by the state of Lt. McEachern was necessary to explain that fact by soliciting an expert opinion that it was possible for defendant to have driven the automobile without leaving fingerprints therein. Hence, the trial judge did not err in overruling defendant’s objection to the question.

Assignment of Error No. 33 is without • merit.

ASSIGNMENT OF ERROR NO. 36

Defendant contends the trial judge erred in allowing the admission in evidence of certain washcloths and testimony concerning them. He argues that the washcloths were not fairly mentioned in the state’s opening statement.

The state’s opening statement included the following remark:

The state will produce the gun used in the commission of this offense as well as other items of physical evidence including pictures, clothes and other related materials.

The state’s evidence need not be detailed in the opening statement. The statement’s primary function is to set forth in general terms the nature of the charge and of the evidence sufficiently to enable the jury to follow the proceedings and to inform the accused of what acts on his part the state intends to prove. La.Code Crim.P. arts. 766, 769; State v. Robertson, No. 60,909, 358 So.2d 931 (La., April 10, 1978); State v. Sneed, 316 So.2d 372 (La.1975). In the instant case, the state’s opening statement set forth the nature gf the evidence sufficiently. Hence, the trial judge did not err in admitting in evidence the washcloths and testimony concerning them.

Assignment of Error No. 36 is without merit.

ASSIGNMENTS OF ERROR NOS. 40 AND 41

Defendant contends the trial judge erred in accepting Lt. Jordan as an expert in the field of fingerprint identification and Ms. Judy Houston as an expert in the fields of serology and microscopic examination.

We note first that the record reveals no objection to the acceptance of Lt. Jordan as an expert in his field. In the absence of a contemporaneous objection, an alleged irregularity or error in the proceeding cannot be availed of after verdict. La.Code Crim.P. art. 841; State v. Robertson, No. 60,909, 358 So.2d 931 (La., April 10, 1978); State v. Williams, 343 So.2d 1026 (La.), cert. denied, 434 U.S. 928, 98 S.Ct. 412, 54 L.Ed.2d 587 (1977); State v. Finley, 341 So.2d 381 (La.1976); State v. Knight, 323 So.2d 765 (La.1975).

In any event, we find that both witnesses were properly qualified as experts in their respective fields. La.R.S. 15:466 sets out the guidelines for the qualification of expert witnesses:

The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.

We have consistently held that the competence of an expert witness is a question of fact to be determined within the sound discretion of the trial judge. His rulings on the qualifications of expert witnesses will not be disturbed in the absence of manifest error. State v. Lewis, 353 So.2d 703 (La.1977); State v. Madison, 345 So.2d 485 (La.1977); State v. Marks, 337 So.2d 1177 (La.1976); State v. Vassel, 285 So.2d 221 (La.1973). The record discloses that both witnesses possessed sufficient education and practical experience in their respective fields to qualify as experts therein. Moreover, both witnesses had previously qualified as experts on several occasions in district courts in Louisiana. We cannot, therefore, find that the trial judge abused his discretion in accepting these witnesses as experts in their respective fields.

Assignments of Error Nos. 40 and 41 are without merit.

ASSIGNMENT OF ERROR NO. 43

Defendant contends the trial judge erred in sustaining the state’s objection to a question asked by defendant of a defense witness.

During direct examination of a defense witness, defendant asked whether he had offered to take a polygraph test. The state objected to the question. The witness nevertheless answered in the affirmative; the trial judge then sustained the objection and instructed the jury to disregard the witness’ answer.

The results of polygraph tests are not admissible in evidence. State v. Weeks, 345 So.2d 26 (La.1977); State v. Governor, 331 So.2d 443 (La.1976); State v. Refuge, 270 So.2d 842 (La.1972). Likewise, testimony of a witness that he has taken or was willing to take a polygraph test is also inadmissible. In State v. Refuge, supra, this court stated:

. Such evidence is excluded as an attempt by indirection to evade the direct prohibition against lie-detection testimony for jury consideration, based upon the incompetency and unduly prejudicial effect of such testimony in judicial proceedings.

Hence, the trial judge did not err in sustaining the state’s objection to the question.

Assignment of Error No. 43 is without merit.

ASSIGNMENT OF ERROR NO. 44

Defendant contends the trial judge erred in refusing to give a requested special charge to the jury pertaining to resolution of conflicting testimony and the credibility of witnesses. Defendant’s requested charge was confusing and not wholly correct. In any event, the proper law on the subject was correctly included in the trial judge’s general charge to the jury. Hence, the trial judge correctly refused to give the requested special charge. La.Code Crim.P. art. 807.

Assignment of Error No. 44 is without merit.

ASSIGNMENT OF ERROR NO. 46

Defendant contends the trial judge erred in allowing the state, after trial had begun, to amend the indictment charging defendant with the instant offense by changing the date on which the indictment was filed.

After opening statements were delivered on June 4, 1977, the state moved to amend the indictment to correct a typographical error by changing the date of the filing of the indictment from December 9, 1977, to December 9, 1976. Defendant objected to the amendment; the trial judge overruled the objection, allowing the amendment.

Article 487 of the Code of Criminal Procedure states that the court may cause an indictment to be amended at any time with respect to a defect of form. Even a mistake respecting the date on which the offense occurred has been held to be such a defect of form, when not essential to the offense. State v. McCoy, 337 So.2d 192 (La.1976); State v. Sharp, 321 So.2d 331 (La.1975); State v. Hubbard, 279 So.2d 177 (La.1973); State v. Pickett, 261 La. 237, 259 So.2d 307 (1972); State v. Martin, 255 La. 961, 233 So.2d 898 (1970). The incorrectness of the date on which the indictment was filed was merely a defect of form; it was not essential to the offense. Moreover, defendant made no motion for a recess, nor does he make a showing of surprise or prejudice resulting from the 'amendment. Finally, since the trial began prior to December 9, 1977, it was obvious to defendant that the indictment was not filed on that date.

Assignment of Error No. 46 is without merit.

ASSIGNMENT OF ERROR NO. 48

Defendant first contends the trial judge erred in denying his motion for a new trial based on various grounds urged in other assignments of error on appeal. For the reasons assigned, we find no merit to this contention.

Defendant also assigns as error the trial judge’s denial of his motion for a new trial grounded on the claim that the verdict is contrary to the law and evidence. It is well settled that such an allegation presents nothing for this court’s appellate review. State v. Cass, 356 So.2d 936 (La.1977); State v. Fowlkes, 352 So.2d 208 (La.1977); State v. Williams, 343 So.2d 1026 (La.), cert. denied, 434 U.S. 928, 98 S.Ct. 412, 54 L.Ed.2d 287 (1977); State v. Jack, 332 So.2d 464 (La.1976). In brief to this court, defendant contends the trial judge erred in denying his motion for a new trial on the ground that there was no evidence to support his conviction. A new basis for a motion for a new trial cannot be raised for the first time on appeal. State v. Cass, supra. Nevertheless, we have reviewed the record and find substantial evidence to support defendant’s conviction.

In sum, the trial judge did not err in denying defendant’s motion for a new trial. Assignment of Error No. 48 is without merit.

DECREE

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

CALOGERO and DENNIS, JJ., concur.

TATE, J., assigns additional concurring reasons.

DIXON, J., concurs with reasons.

TATE, Justice,

concurring.

With regard to Assignments 7-19, the prospective jurors were properly excused for cause relating to their refusal to accept the instructions of the court with regard to applying the death penalty. If they had not been properly excused, contrary to statute the state would have received additional peremptory challenges. See concurring opinion in State v. Miles, 339 So.2d 735, 740 (1976). Therefore, I regard as dicta the additional reason assigned by the majority that the complaint became moot because the defendant did not in fact receive the death penalty, even though by reason of the improperly granted challenges for cause he had been deprived of the availability of jurors to which he was entitled by law.

Likewise, with regard to Assignment 29, the witness’s testimony as to the little girl’s request for help was admissible for the reasons stated by the majority, but I would not agree with the broad statement of the testimony’s admissibility as res gestae insofar as it implies that any and all such post-crime hearsay statements by a non-participant are admissible as res gestae.

DIXON, Justice

(concurring).

I respectfully concur, agreeing with the holding, but not the dicta, in the treatment of Assignment No. 4. As for Assignment No. 29, the child’s report should not be called “res gestae.”

      . Defendant has neither briefed nor argued Assignments of Error Nos. 13, 25, 31, 42, 45 and 47. Therefore, we consider these assignments of error to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . By Act 343 of 1977, the legislature amended La.R.S. 14:42 to provide for a sentence of life imprisonment without benefit of parole, probation or suspension of sentence upon conviction for aggravated rape. Hence, the bifurcated procedure provided under La.Code Crim.P. arts. 905, et seq., is no longer applicable to aggravated rape cases.

      . Defendant’s motion to suppress the pretrial lineup identification was denied after hearing. He does not assign as error the denial of this motion.


text:
    Fausta Cecile DEVALL, Plaintiff-Appellee, v. Claude Pierson DEVALL, Defendant-Appellant.
    No. 62069.
    Supreme Court of Louisiana.
    July 14, 1978.
   JOINT MOTION AND ORDER

On joint motion of Fausta Cecile Devall and Claude Pierson Devall, through undersigned counsel, and upon suggesting to the court that the parties to this proceeding have decided to attempt a reconciliation and desire that the writ granted herein to the Court of Appeal, Third Circuit, be recalled because the parties have amicably resolved their differences.

IT IS ORDERED that the writ of review [Granted in La., 358 So.2d 949] to the Court of Appeal, Third Circuit, Parish of Allen, in this matter be, and the same is hereby recalled.


author: BOLIN, Judge.

text:
    Rickey Lee KIMBLE, Plaintiff-Appellant, v. MARYLAND CASUALTY COMPANY, Defendant-Appellee.
    No. 13556.
    Court of Appeal of Louisiana, Second Circuit.
    June 5, 1978.

      Donald R. Miller, Shreveport, for plaintiff-appellant.
    Cook, Clark, Egan, Yancey & King by Herschel E. Richard, Jr., Shreveport, for defendant-appellee.
    Before BOLIN, MARVIN and JONES, JJ.
   BOLIN, Judge.

Plaintiff received workmen’s compensation benefits in excess of the amount due for the partial loss of function of his two injured fingers. La.R.S. 23:1221(4)(c) and (o j. He then sued defendant insurer, claiming benefits for permanent disability. The trial court rejected plaintiff’s demands for this additional relief and he appeals, We affirm.

The issue is whether there is sufficient evidence to support a finding of disability in addition to the partial loss of physical function in two fingers of plaintiff’s left hand.

Plaintiff was an unskilled laborer who earned the minimum wage in his employment with a painting contractor. He severely fractured bones in the third and fourth fingers of his left hand when' he fell from a riding lawnmower and his hand came in contact with the machine’s spinning blade. Defendant, his employer’s workmen’s compensation insurer, paid all plaintiff’s medical expenses after the accident in addition to weekly disability benefits of $62 each.

The insurer continued payments until the treating physician certified plaintiff was able to return to his former duties approximately eight months after the accident. This doctor’s report at the time of release stated plaintiff would retain “a permanent physical impairment of function of the long finger of 75% and of the ring finger of 50%.” The doctor specifically applied this impairment to the fingers only and not to the hand. The record shows the doctor considered plaintiff able to perform a 11 the duties of his pre-injury employment.

Plaintiff testified he was able to, and did, perform the same work for his employer after the injury. However, he stated he could not lift heavy objects and occasionally experienced pain in his left hand while working.

We hold the evidence fails to support a finding of disability in addition to the permanent loss of function in the two fingers of 75% and 50% respectively. Where there is physical injury, but no resulting employment disability, the statutory schedule of payments for specified losses contained in R.S. 23:1221(4) serves as the criterion for determining the compensation due. Farrar v. Guy Atkinson Company, 325 So.2d 893 (La.App.2d Cir., 1976). See also Babineaux v. Great American Insurance Company, 245 La. 718, 160 So.2d 591 (1964), and Austin v. J. C. Penney Company, 253 So.2d 685 (La.App.3d Cir., 1971).

Since plaintiff has already been paid workmen’s compensation benefits in excess of the amount required by the cited statute, the judgment denying him additional relief is affirmed at appellant’s cost.

      . § 1221.
      Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
      * * * * * * *
      (4) In the following cases, the compensation shall be as follows:
      * * * * * *
      (c) For the loss of any other finger, or a big toe, sixty-six and two-thirds per centum of wages during twenty weeks.
      * * * * * *
      (o) In all cases involving a permanent partial loss of use or function of the members mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.

      . Payments of $62 weekly were made for. a period of 37 weeks. Three additional payments of $25 each were made after the date of the physician’s report releasing plaintiff to return to work. The total compensation paid was $2369.


author: JONES, Judge.

text:
    Robert J. OTT, Plaintiff-Appellant, v. J. C. PENNEY COMPANY et al., Defendants-Appellees.
    No. 13564.
    Court of Appeal of Louisiana, Second Circuit.
    June 5, 1978.

      Glen H. Smith, Shreveport, for plaintiff-appellant.
    Mayer, Smith & Roberts by Walter 0. Hunter, Jr., and A. J. Gregory, Jr., Shreveport, for defendants-appellees.
    Before BOLIN, HALL and JONES, JJ.
   JONES, Judge.

Plaintiff appeals a judgment denying him damages resulting from his shoe being caught in an escalator in the J. C. Penney store at Southpark Mall in Shreveport. We reverse and award plaintiff damages for the value of his shoes.

On June 16, 1977, while shopping in the Penney store, plaintiff was departing the descending escalator at the bottom step, and as he attempted to take his last step from the escalator, the heel of his right shoe was caught and lodged in the escalator at a point where the tread step proceeds into and through the comb plate. Plaintiff, age 18, had to remove his foot from his shoe before he could move off the escalator. He then turned, faced the escalator and with his hand succeeded in withdrawing his shoe from its lodged position between the tread step and teeth of the comb plate.

An examination of the shoe reveals that from the center of the back of the heel for a distance of 2% inches along the right rear extremity of the heel, a substantial, chunk was taken from the heel of the shoe which appeared to be constructed of very firm, hard, rubberized material.

The issue is, was plaintiff’s shoe caught in the escalator solely because of the negligence of defendant J. C. Penney Company?

In Vallette v. Maison Blanche Company, 29 So.2d 528 (La.App., Orl. 1947), it was held the duty owed to a passenger by the operator of an escalator was similar to the duty owed to a passenger of an elevator which was similar to the duty owed to a passenger by a common carrier. The court there quoted with approval the following language from Ross v. Sisters of Charity of Incarnate Word, 141 La. 601, 75 So. 425:

“ ‘While the owner of a passenger elevator operated in a business building for carrying passengers up and down may not be a carrier of passengers in the sense that he is bound to serve the public, yet his duty as to protecting the passengers in his elevator from danger is the same as that applicable for the carrier of passengers by other means, and he is bound to do all that human care, vigilance, and foresight can reasonably suggest under the circumstances, and, in view of the character of the mode of conveyance adopted, to guard against accidents and injuries resulting therefrom; and a failure in this respect will constitute negligence rendering him liable. He owes the same duty to those who by invitation, express or implied, are transported in the cars of such elevator, to exercise the highest care, in view of the character of the mode of conveyance adopted, as to the safety of the car and all appliances.
Vallette, pp. 530, 531

Because a patron of a store can have no knowledge as to the cause of malfunction in the operation of an escalator, the court concluded the doctrine of res ipsa loquitur is applicable to a case where an accident occurs upon an escalator which would normally not occur when due care has been exercised. Under the evidentiary rule of res ipsa loquitur the proof of the accident under these circumstances creates a prima fa-cie case of negligence and the burden then shifts to defendant to show an absence of negligence on his part. Where the doctrine is applicable, a plaintiff is relieved of proving anything more than that an unusual occurrence took place and the injury resulted.

The court in Vallette denied plaintiff’s recovery even though she established she had an accidental fall upon an escalator from which she sustained injuries. The court reasoned although the doctrine of res ipsa loquitur can be applicable to escalator accidents, it first must be established the accident was due to an unusual occurrence. The plaintiff in Vallette, immediately following the accident, had given a statement that she recalled nothing unusual about the function of the escalator that brought about her fall. The court for this reason discounted her testimony at trial that the fall occurred because of a sudden jerk or jolt in the function of the escalator. The court found plaintiff failed to establish her fall was caused by anything other than loss of balance precipitated by her own peculiar physical infirmities. Plaintiff’s effort to rely upon res ipsa was denied because of her inability to establish her accident was one which normally would not have occurred except for an unusual function in the escalator.

In Theard v. Travelers Insurance Company, 208 So.2d 413 (La.App., 4th Cir., 1968, writ denied), a small child fell on an escalator and cut his finger. The court denied plaintiff’s claim because of his failure to establish negligence in the operation of the escalator. Plaintiff was denied use of res ipsa to establish a prima facie case of negligence for the reason plaintiff failed to show the cause of the child’s fall was related to an unusual occurrence in the operation of the escalator.

In Cannon v. Holmes, 274 So.2d 799 (La.App., 4th Cir. 1973, writ denied), the court reiterated the duty of an escalator operator to be identical with that of the operator of an elevator:

“ * * * [H]is duty as to protecting the passengers in his elevator from danger is the same as that applicable for the carrier of passengers by other means, and he is bound to do all that human care, vigilance and foresight can reasonably suggest under the circumstances, * * *.” (Emphasis added by the author) Id. page 801.

The court denied recovery to plaintiff who broke her wrist when her hand became wedged between the descending hand rail on the escalator and a wall adjacent to the escalator. The court disallowed use of res ipsa because she failed to establish there was any unusual occurrence in the function of the escalator which precipitated breaking her wrist.

In Tarantino v. City Stores Company (Maison Blanche Division), 278 So.2d 149 (La.App., 4th Cir. 1973, writ denied La., 281 So.2d 741), a three year old child was riding the descending escalator in Maison Blanche. Upon arriving at the last step on the escalator she fell and the back of her right hand became lodged between the tread plate and the teeth of the comb plate of the escalator causing multiple lacerations. There was no evidence that any malfunction in the escalator caused the child to fall. The court, however, applied the doctrine of res ipsa because the evidence established a hand or finger could not possibly be caught between the comb plate and the tread plate if they were properly meshed. The court reasoned because the child’s fingers and hand had been injured by becoming lodged between the tread plate and the comb plate, an accident had been proven which would not have normally occurred had the escalator been functioning properly, and therefore the doctrine of res ipsa applied. Proof of the accident under these circumstances ere-ated a prima facie case of negligence shifting the burden of proof to defendant to establish proper maintenance of the escalator. Westinghouse Electric Corporation, who had the maintenance contract on the escalator, failed to establish an explanation which could account for the accident other than improper maintenance, and for this reason it was liable for damages sustained by plaintiffs.

At the conclusion of plaintiffs evidence, which proved his shoe had been caught in the escalator, defendant moved for a directed verdict, citing C.C.P. Art. 1810; Cannon v. Holmes, supra; Vallette v. Maison Blanche Company, supra. Defendant urged dismissal of plaintiff’s suit because he failed to establish an unusual occurrence in the operation of the escalator which would allow res ipsa to be applied, and because he failed to otherwise establish negligence in maintenance of the escalator. The trial judge overruled the motion for directed verdict but at the conclusion of the trial on December 16, stated he was impressed with the authorities cited by defendant on the motion for directed verdict, and he believed there had been no malfunction of the escalator established in this case:

“I’ve stated as a fact, however, there’s been no evidence whatever of any malfunction in this machinery. There’s been no evidence whatever of any unusual occurrence. No evidence whatever other than in some form or other this plaintiff’s right heel, right rear heel, in some manner got caught up in part of this machinery.” (Emphasis ours).

The trial court, after making these statements, gave plaintiff an opportunity to file a brief. On December 23 the trial judge rendered judgment rejecting plaintiff’s demands. The only reasons for his judgment are those given by him at the conclusion of the trial.

The escalator was installed in 1975 and from 1500 to 2500 people used the escalator in a normal business day. The evidence establishes none of the several hundred thousand people who had used this escalator had their shoe caught between the comb plate and tread plate as they departed the escalator.

The fact that the escalator caught and held plaintiff’s shoe at this site is an unusual occurrence which would not have happened had thé escalator been functioning properly. Because of this unusual occurrence in the operation of the escalator res ipsa loquitur applies in this case. When plaintiff proved his accident, this established a prima facie case of negligence against defendant, J. C. Penney Company.

Defendant’s personnel manager attempted to explain the accident by speculating plaintiff “failed to pick his foot up and the step coming down caught a chunk of his crepe sole.” The explanation of the accident offered by the maintenance mechanic was upon first inquiry:

“This I don’t know because I was not there; I have no idea how the shoe could get in there.”

And upon questioning he too speculated:

“The only way that the shoe could get caught in the comb plate would be for him sliding his foot over the comb plate.” . “Well, the crepe sole will compress into the comb plate.”

The explanation given by these two defense witnesses was premised upon the heel of plaintiff’s shoe being constructed of a soft crepe-like material that would press down between the segments of the tread plate and the teeth of the comb plate as they meshed together. An examination of plaintiff’s shoe, which is in evidence, establishes the heel is rather large and constructed of extremely hard, firm rubberized material. No doubt the bottom surface of the shoes of many thousands of people who have used this escalator have been constructed of much softer and more pliable material than that found in plaintiff’s shoes and the end of the escalator has been stepped upon many thousands of times in every manner possible, yet no similar instance has ever been reported. Under these circumstances the testimony of defendant’s escalator mechanic that he found no defect in the escalator when he checked it two weeks before the accident and two days afterwards is insufficient to rebut the presumption of negligence created by the occurrence of the accident. Two and one-half inches of the surface of the heel of plaintiff’s shoe would not have caught between the tread segments and the comb plate teeth as they meshed together had the escalator been functioning in a normal manner.

There is no evidence of any negligence on the part of plaintiff which contributed to the accident.

Plaintiff alleged he sustained personal injuries, suffered mental anguish, embarrassment and humiliation as a result of the accident. The record contains no proof of damage sustained by plaintiff other than the damage to the heel of his right shoe. Plaintiff paid $27.98 for this pair of shoes one month before the accident.

We award judgment to plaintiff, Robert J. Ott, and against J. C. Penney Company and Liberty Mutual Insurance Company in the amount of $27.98, plus legal interest from September 8, 1977, and all costs of court.

Reversed and rendered.